Judgment of the Court (Second Chamber), 18 September 2014. ‘Valimar’ OOD v Nachalnik na Mitnitsa Varna.
C-374/12 • 62012CJ0374 • ECLI:EU:C:2014:2231
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JUDGMENT OF THE COURT (Second Chamber)
18 September 2014 ( *1 )
‛Reference for a preliminary ruling — Dumping — Iron or steel ropes and cables originating in Russia — Regulation (EC) No 384/96 — Articles 2(8) and (9) and 11(2), (3), (9) and (10) — Interim review — Expiry review of the anti-dumping measures — Validity of Regulation (EC) No 1279/2007 — Determination of the export price on the basis of sales to third countries — Reliability of export prices — Taking into consideration of price undertakings — Change in circumstances — Application of a methodology which is different from that used at the time of the original investigation’
In Case C‑374/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Bulgaria), made by decision of 30 July 2012, received at the Court on 6 August 2012, in the proceedings
‘Valimar’ OOD
v
Nachalnik na Mitnitsa Varna,
THE COURT (Second Chamber),
composed of R. Silva de Lapuerta, President of the Chamber, J.L. da Cruz Vilaça (Rapporteur), G. Arestis, J.-C. Bonichot and A. Arabadjiev, Judges,
Advocate General: P. Cruz Villalón,
Registrar: M. Aleksejev, Administrator,
having regard to the written procedure and further to the hearing on 13 November 2013,
after considering the observations submitted on behalf of:
—
‘Valimar’ OOD, by I. Komarevski, advokat,
—
the Nachalnik na Mitnitsa Varna, by S. Valkova, S. Yordanova, N. Yotsova and M. Kolarova, acting as Agents,
—
the Bulgarian Government, by E. Petranova and Y. Atanasov, acting as Agents,
—
the Council of the European Union, by S. Boelaert and I. Gurov, acting as Agents, assisted by N. Chesaites, Barrister, and G. Berrisch, Rechtsanwalt,
—
the European Commission, by D. Roussanov, H. van Vliet and G. Koleva, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 27 February 2014,
gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Articles 2(8) and (9) and 11(3), (9) and (10) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community ( OJ 1996 L 56, p. 1 ) (‘the basic regulation’) and the validity of Council Regulation (EC) No 1279/2007 of 30 October 2007 imposing a definitive anti-dumping duty on certain iron or steel ropes and cables originating in the Russian Federation, and repealing the anti-dumping measures on imports of certain iron or steel ropes and cables originating in Thailand and Turkey ( OJ 2007 L 285, p. 1 , and corrigendum in OJ 2009 L 96, p. 39 ).
2The request has been made in proceedings between ‘Valimar’ OOD (‘Valimar’), a company governed by Bulgarian law, and the Nachalnik na Mitnitsa Varna (Director of the Customs Office, Varna) (‘the Nachalnik’) concerning an application for the repayment of anti-dumping duties imposed, in 2011, on imports of iron or steel ropes and cables (‘the goods concerned’) manufactured in and exported from Russia by Joint Stock Company Severstal-Metiz (‘SSM’), formerly Open Joint Stock Company Staleprokatny Zavod.
Legal context
EU law
The basic regulation
3The basic regulation has been repealed and replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community ( OJ 2009 L 343, p. 51 ). The basic regulation was, however, applicable at the time of the facts in the main proceedings.
4Article 2(8) and (9) of the basic regulation provided:
‘8. The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Community.
9. In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.
…’
5Article 11(2), (3), (9) and (10) of the basic regulation provided:
‘2. A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon request made by or on behalf of Community producers, and the measure shall remain in force pending the outcome of such review.
An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury. Such a likelihood may, for example, be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping.
…
3. The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review.
An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence.
…
9. In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.
10. In any investigation carried out pursuant to this Article, the Commission shall examine the reliability of export prices in accordance with Article 2. However, where it is decided to construct the export price in accordance with Article 2(9), it shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Community.’
The anti-dumping legislation relating to imports of certain iron or steel ropes and cables originating in Russia
6Recital 87 in the preamble to Council Regulation (EC) No 1601/2001 of 2 August 2001 imposing a definitive anti-dumping duty and definitively collecting the provisional anti-dumping duty imposed on imports of certain iron or steel ropes and cables originating in the Czech Republic, Russia, Thailand and Turkey ( OJ 2001 L 211, p. 1 ) stated that the export price had been established by reference to the prices paid or payable for those goods when they were exported to the Community.
7By Decision 2001/602/EC of 26 July 2001 on accepting undertakings offered in connection with the anti-dumping proceeding concerning imports of certain iron or steel ropes and cables originating in the Czech Republic, the Republic of Korea, Malaysia, Russia, Thailand and Turkey and terminating the proceeding in respect of imports originating in the Republic of Korea and Malaysia ( OJ 2001 L 211, p. 47 ), the Commission accepted the price undertakings, for the purposes of Article 8 of the basic regulation, offered by SSM. According to recital 6 in the preamble to Decision 2001/602, SSM offered to sell the products concerned in the Community at or above price levels which eliminate the injurious effects of dumping.
8Pursuant to Articles 1(3) and 2 of Regulation No 1601/2001, the products concerned manufactured by SSM, to which an anti-dumping duty at the rate of 36.1% applied, were exempt from that duty in so far as they were directly exported by SSM to a company in the Community acting as an importer.
9The Commission received, first, requests made by SSM and another Russian company for partial interim reviews, pursuant to Article 11(3) of the basic regulation, of the anti-dumping measures imposed by Regulation No 1601/2001, limited to dumping and relating to the period 1 July 2003 to 30 June 2004, on the ground that the circumstances on the basis of which those measures had been established had permanently changed, and, secondly, a request for an expiry review of those measures made by the Liaison Committee of EU Wire Ropes Industries pursuant to Article 11(2) of the basic regulation, relating to the period 1 July 2005 to 30 June 2006. As a result of those requests, the Council of the European Union adopted Regulation No 1279/2007.
10The recitals in the preamble to Regulation No 1279/2007 relating to dumping and to the likelihood of a continuation or recurrence of dumping included, inter alia, recitals 55 to 76 which concerned, among other things, the determination of the export price.
11Recital 201 in the preamble to Regulation No 1279/2007 stated that the price undertaking which gave rise to Decision 2001/602 was no longer workable and had to be withdrawn by Commission Decision.
12Recital 207 in the preamble to that regulation stated:
‘With regards to the findings of the interim reviews concerning the two Russian companies, it is considered appropriate to amend the anti-dumping duty applicable to BMK to 36,2% and to SSM to 9,7%.’
Bulgarian law
13Article 214 of the Customs Law (Zakon za mitnitsite) provides:
‘(1) A refund of customs duties shall consist in the full or partial repayment of the import or export duties paid.
(2) Repayment shall take place if it is found that the duties were not payable at the date of payment or the reason for paying them no longer existed.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14Valimar’s main business activity is the importation of and trading in wires, cables and similar steel goods, some of which originate in Russia and are made by SSM.
15On importation of the goods concerned manufactured by SSM, Valimar paid anti-dumping duties the amount of which was determined in accordance with Regulation No 1279/2007.
16On 25 January 2011, Valimar applied to the Teritorialno Mitnichesko upravlenie Varna (Customs Administration Varna) for a declaration that the customs duties had been paid without being due and should be repaid to it, on the ground that that regulation is invalid.
17As the Nachalnik dismissed that application, Valimar lodged an objection to that decision with the Director of the Customs Agency, who rejected that objection.
18Valimar then brought an action before the Administrativen sad Varna (Administrative Court Varna). As that action was dismissed, Valimar appealed on a point of law to the Varhoven administrativen sad (Supreme Administrative Court).
19In support of its appeal, Valimar submitted that Regulation No 1279/2007 is invalid in so far as it imposes anti-dumping duties on imports of the good concerned exported by SSM, on the ground that it infringes Articles 2(8) and 11(9) and (10) of the basic regulation.
20The referring court takes the view that Valimar’s claims are admissible and queries the validity of Regulation No 1279/2007.
21The doubts of that court concern, in the first place, a possible infringement of Article 11(9) of the basic regulation. In that regard, that court states that, whereas the export price of the goods concerned was determined, in the context of the original procedure, on the basis of the price actually paid or payable for the exports to the Community in accordance with Article 2(8) of that regulation, that export price was determined, in the context of the reviews which led to the adoption of Regulation No 1279/2007, according to a different methodology consisting in calculating that export price on the basis of SSM’s prices for its exports to third countries and that that change in methodology was not expressly justified in the latter regulation by a change in circumstances as required by Article 11(9) of the basic regulation.
Loading citations...22The referring court queries, in the second place, the existence of a legal basis for the methodology used in the course of the reviews as such a basis is not expressly laid down in either Article 2(8) and (9) or Article 11(9) and (10) of the basic regulation.
23In those circumstances the Varhoven administrativen sad decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1.
Is Article 11(9) and … (10) of [the Basic] Regulation (now Regulation No 1225/2009) … in conjunction with Article 2(8) and (9) of that regulation to be interpreted as meaning that, if no change in circumstances is proved for the purpose of Article 11(9), those provisions take precedence over any implicit powers of the institutions arising from Article 11(3) of the Basic Regulation for determining the export price, including — as in the case of … Regulation [No 1279/2007] — the implicit power of the institutions to assess the reliability of the export prices of [SSM] in the future by making a comparison with the minimum prices according to the price undertaking and the selling prices in third countries? Is the reply to that question affected if, as in the case of [SSM] and … Regulation [No 1279/2007], the institutions decide, when exercising their powers in connection with assessing the stability of the change in circumstances regarding the existence of dumping in accordance with Article 11(3) of the Basic Regulation, to vary the anti-dumping measure (reduce the duty rate)?
2.Does it follow from the reply to the first question that, in the circumstances which are described in the part of … Regulation [No 1279/2007] relating to the determination of the export price of [SSM], and in view of the fact that in that regulation a change for the purpose of Article 11(9) of the Basic Regulation was not expressly proved which would justify the application of a new methodology, the Commission ought to have applied the method for determining the export price which was used in the context of the original investigation, in the present case in accordance with Article 2(8) of the Basic Regulation?
3.Taking into consideration the replies to the first and second questions: Was that part of … Regulation [No 1279/2007] which concerns the determination and imposition of individual anti-dumping measures in relation to imports of [the goods concerned] manufactured by [SSM] adopted contrary to Article 11(9) and (10) in conjunction with Article 2(8) of the Basic Regulation or on an invalid legal basis and, as such, is … Regulation [No 1279/2007] to be regarded as invalid in that part?’
Admissibility
24The Bulgarian Government expresses doubts as to the admissibility of the request for a preliminary ruling in the light of the case-law of the Court resulting from the judgment in TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90 ). The Nachalnik submits that the reference for a preliminary ruling is inadmissible.
25The Bulgarian Government and the Nachalnik take the view that, in accordance with that case-law, if the interested party has not challenged a measure before the General Court of the European Union in accordance with Article 263 TFEU, it cannot contest it indirectly by means of a request for a preliminary ruling in so far as the measure in question is of direct and individual concern to it.
26In that regard, the Bulgarian Government submits that, according to paragraph 21 of the judgment in Nachi Europe (C‑239/99, EU:C:2001:101 ), a regulation imposing an anti-dumping duty may be of direct and individual concern not only to the exporting producers referred to in that regulation, but also to the importers who are connected with the producers and whose resale prices for the products in question form the basis of the constructed export price.
27The Bulgarian Government takes the view that, in the light of its position as SSM’s sole commercial representative in Bulgaria, Valimar may be regarded as an importer which is connected with SSM, for the purposes of the case-law referred to the previous paragraph. In support of that argument, it relies on the judgment in ISO v Council (118/77, EU:C:1979:92 ), in which the Court held that Import Standard Office, a company governed by French law, the sole importer of a Japanese manufacturer on which anti-dumping duties had been imposed by a Council Regulation, was sufficiently closely associated with that manufacturer and that, therefore, that regulation was of direct and individual concern to it. The Bulgarian Government submits that the dispute in the main proceedings is similar to that in the case which gave rise to that judgment and that it is therefore possible to take the view that Valimar is sufficiently closely connected with SSM for Regulation No 1279/2007 to be of direct and individual concern to it, inasmuch as that regulation imposes an anti-dumping duty on the importation of the goods concerned.
28It must be pointed out that the possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge those provisions (see judgments in TWD Textilwerke Deggendorf ( EU:C:1994:90 ), paragraph 23, and Bolton Alimentari , C‑494/09, EU:C:2011:87 , paragraph 22).
29Nevertheless, it follows from that case-law that the admissibility of such a direct action must be beyond any doubt (see judgment in Bolton Alimentari , EU:C:2011:87 , paragraph 23). In the present case, the information submitted with the request for a preliminary ruling and that which the Bulgarian Government and Valimar provided in their oral submissions does not allow the Court to conclude that such a direct action would have been admissible.
30Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, may be of direct and individual concern to those producers and exporters of the product in question who are charged with practising dumping on the basis of information originating from their business activities. Generally, that is the case with those exporters and producers who are able to establish that they were identified in the measures adopted by the Commission and the Council or were concerned by the preliminary investigations (see, to that effect, judgment in Allied Corporation and Others v Commission , 239/82 and 275/82, EU:C:1984:68 , paragraphs 11 and 12).
31The same is true of those importers of the product concerned whose resale prices were taken into account for the construction of export prices and who are consequently concerned by the findings relating to the existence of dumping (see judgment in Nashua Corporation and Others v Commission and Council , C‑133/87 and C‑150/87, EU:C:1990:115 , paragraph 15, and judgment in Gestetner Holdings v Council and Commission , C‑156/87, EU:C:1990:116 , paragraph 18).
32The Court has also held that importers associated with exporters in third countries on whose products anti-dumping duties have been imposed may challenge the regulations imposing such duties, particularly where the export price has been calculated on the basis of those importers’ resale prices on the Community market and where the anti-dumping duty itself is calculated on the basis of those resale prices (see, to that effect, judgment in Neotype Techmashexport v Commission and Council , C‑305/86, EU:C:1990:295 , paragraphs 19 and 20).
33Furthermore, the recognition of the right of certain categories of traders to bring an action for the annulment of an anti-dumping regulation cannot, however, prevent other traders from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (see judgment in Extramet Industrie v Council , C‑358/89, EU:C:1991:214 , paragraph 16).
34Valimar does not belong to any of the categories of traders identified above, which the Court has recognised as having a direct right of action against regulations imposing an anti-dumping duty. In addition, it cannot be regarded as being in a situation similar to that of the undertaking in question in the case which gave rise to the judgment in ISO v Council ( EU:C:1979:92 ).
35It must be pointed out that, first, according to the information submitted by the referring court, Valimar, as an independent importer, had no association with SSM and did not participate in the Commission’s administrative procedure in the context of the investigation to determine the anti-dumping duty. In that regard, Valimar stated, in the course of the hearing, that, although it imported SSM’s goods, among others, into Bulgaria, it could not on the other hand be regarded as its commercial representative or as having concluded a sole distributorship contract with it. Furthermore, Valimar stated that, at the time when the review procedure was initiated, the Republic of Bulgaria was not yet a member of the European Union and was not importing the goods in question, with the result that it could not be regarded as having locus standi to bring an action against Regulation No 1279/2007 at the time when that regulation was adopted.
36Secondly, as is apparent from that regulation, Valimar’s resale prices were not used to calculate SSM’s export prices.
37Consequently, it must be held that Regulation No 1279/2007 concerns Valimar, not by virtue of certain attributes peculiar to it or factual circumstances which differentiate it from all other persons, but merely by virtue of its objective status as an importer of the products in question, in the same way as any other trader who is, or might in the future be, in the same situation (see, to that effect, judgment in Spijker Kwasten v Commission , 231/82, EU:C:1983:220 , paragraph 9).
38In those circumstances, it is clear that the request for a preliminary ruling must be declared admissible.
Consideration of the questions referred
39By the three questions it refers, which it is appropriate to examine together, the referring court asks, in essence, whether Regulation No 1279/2007 is valid, in the light of Articles 2(8) and (9) and 11(9) and (10) of the basic regulation, in so far as it imposes an anti-dumping duty on the importation of the goods concerned manufactured by SSM.
The lawfulness of adopting a methodology for calculating the export price in the context of the review which is different from that of the original investigation
40As regards the alleged infringement of Article 11(9) of the basic regulation, it is indeed true that, as is apparent from that provision, as a general rule, the methodology for calculating the dumping margins followed in a review must, in principle, be the same as that used in the original investigation which led to the imposition of the anti-dumping duty.
41Article 11(9) provides, however, for an exception which allows a different methodology to be applied in a case in which the circumstances have changed.
42In that regard, it must be borne in mind, first, that, according to the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the legislation of which it is part (see, inter alia, judgment in Lundberg , C‑317/12, EU:C:2013:631 , paragraph 19 and the case-law cited).
43In the second place, it is important to point out that, although the Court has already had occasion to state that the exception to the general rule established in Article 11(9) of the basic regulation, which provides for the application in the review procedure of a method identical to that used in the original investigation, must be interpreted strictly, such a requirement cannot permit the institutions of the European Union to interpret and apply that provision in a manner inconsistent with its wording and purpose (see, to that effect, the judgment in Dashiqiao Sanqiang Refractory Materials v Council and Commission , C‑15/12 P, EU:C:2013:572 , paragraphs 17 and 19).
44It is true that Regulation No 1279/2007 does not expressly refer to the reasons that gave rise to the application of a methodology which was different from that used in the original investigation as a change in circumstances for the purposes of Article 11(9) of the basic regulation.
45It must, however, be pointed out, first, that it is apparent from recital 61 in the preamble to Regulation No 1279/2007 that almost all exports by one Russian exporter to the Community were made under a price undertaking, which was accepted by the Commission in August 2001. In that context, the determination of export prices was not limited only to an examination of the exporters’ past behaviour, but the likely development of their export prices in the future was also examined. In particular, the question whether the existence of this undertaking had influenced the level of the export prices, so as to make them unreliable for the establishment of future export behaviour was examined.
46Secondly, it must be observed that, as is stated in recital 62 in the preamble to that regulation, it was examined whether the export prices charged by the exporter to Community-based customers were reliable and could form a proper basis for the calculation of its dumping margin for the review investigation, despite the existence of a price undertaking. In particular, the investigation attempted to show whether the current export prices to the Community were artificially set in relation to the minimum import prices or not and therefore whether these were sustainable in the future. However, the investigation showed that the system used to establish product control numbers for the review investigation was more sophisticated than the classification system applied at the time when the undertaking was accepted in 2001. This led to the conclusion that any comparison between the product control numbers of the minimum import prices and those of the review investigation would not be reliable.
47Lastly, in recital 63 in the preamble to that regulation, it is stated that a comparison on a type-by-type basis between the export prices to the Community with prices charged to other third countries was made. This showed that export prices to third countries were on average substantially lower. It was therefore concluded that the export price of SSM to the Community could not be used to establish reliable export prices for the purposes of Article 2(8) of the basic regulation, in the context of the interim review. In the absence of reliable export prices for those sales to Member States, sales to other countries were taken as a proxy for those export prices.
48In the light of the circumstances which have been described in paragraphs 45 to 47 of the present judgment, the Council could reasonably conclude, in recital 124 in the preamble to Regulation No 1279/2007, that export prices to third countries were considered to be more reliable.
49It is therefore clear that, in the light, first, of the change in circumstances in relation to the original investigation, resulting from the price undertakings to which SSM’s exports were subject, and, secondly, of the absence of any reliable basis for the review of the methodology used in the original investigation, the institutions concerned, relying on the exception provided for in Article 11(9) of the basic regulation, were entitled to apply a methodology in the review procedures which was different from that applied in the original investigation.
The lawfulness of the methodology used
50In order to answer fully the questions referred, it is also important to determine whether the institutions in question could legitimately base their analysis on SSM’s export price to third countries in order to reach the relevant conclusions in the review procedures. In other words, the issue to be determined is whether Article 11(9) of the basic regulation, read in conjunction with Article 2(8) and (9) of that regulation, was complied with when those institutions, having found that the export prices actually paid were not reliable as a result of circumstances other than those provided for by the latter provision, used a methodology for determining the export prices which was not expressly specified in that provision.
51In that regard, it must be borne in mind at the outset that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, judgments in Ikea Wholesale , C‑351/04, EU:C:2007:547 , paragraphs 40 and 41, and Council and Commission v Interpipe Niko Tube and Interpipe NTRP , C‑191/09 P and C‑200/09 P, EU:C:2012:78 , paragraph 63).
52Those considerations apply inter alia to the assessments which the institutions carry out in the context of review procedures. First, an expiry review pursuant to Article 11(2) of the basic regulation is essentially a matter of assessing whether the expiry of the original anti-dumping measure would be likely to result in a continuation or recurrence of dumping and injury. Secondly, as regards an interim review pursuant to Article 11(3) of that regulation, the Commission may, in order to propose repealing, amending or maintaining the anti-dumping duty established as a result of the original investigation, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly or whether existing measures are achieving the intended results in removing the injury previously established.
53In that regard, it must be pointed out that neither Article 11(2) nor (3) of the basic regulation sets out specific methodologies or detailed rules which the institutions concerned must apply in order to carry out the investigations provided for by that provision.
54In the words of the third subparagraph of Article 11(3) of the basic regulation, account is only to be taken, in determining whether the circumstances with regard to dumping and injury have changed significantly, ‘of all relevant and duly documented evidence’.
55As the Advocate General has observed at point 58 of his Opinion, the review which the Commission must conduct in this regard may lead it to carry out not only a retrospective analysis of the development of the situation under consideration, as from the imposition of the original definitive measure, in order to assess the need for the continued imposition of or an amendment to that measure to counteract the dumping which is causing injury, but also a prospective analysis of the probable development of the situation, as from the adoption of the review measure, in order to assess the likely effect of removing or amending that measure.
56It must also be pointed out that a review procedure is, as a rule, different from that of an initial investigation, which is governed by other provisions of the basic regulation (see, to that effect, judgments in Europe Chemi-Con (Deutschland) v Council , C‑422/02 P, EU:C:2005:56 , paragraph 49, and Hoesch Metals and Alloys , C‑373/08, EU:C:2010:68 , paragraph 65) and the Court has already held that, in the light of the general scheme and purposes of the system, some of those provisions are not intended to apply to a review procedure (see, to that effect, Hoesch Metals and Alloys , EU:C:2010:68 , paragraph 77).
57The objective difference between those two types of proceedings lies in the fact that imports subject to a review procedure are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping (judgment in Europe Chemi-Con (Deutschland) v Council , EU:C:2005:56 , paragraph 50).
58In that regard, it must be pointed out that Article 11(9) of the basic regulation requires only that the Commission take due account of the provisions of Article 2 of that regulation in a review investigation and does not, by contrast with its express reference to Article 2(11) and (12), refer expressly to Article 2(8) and (9).
59It is indeed true that Article 2(9) of the basic regulation does not expressly refer to the existence of a price undertaking as one of the circumstances which is capable of justifying the use of a methodology which is different from that provided for in Article 2(8) of that regulation. However, those circumstances are not listed exhaustively and the finding that the export prices are unreliable because of that undertaking also justifies the application of that article, provided that the prices are constructed on a ‘reasonable basis’.
60In that context, it is clear that, in circumstances such as those in the main proceedings, the Council did not make an inappropriate or unreasonable choice in deciding to use SSM’s export prices to third countries as an indicator of what SSM’s export prices to the Community would be if there were no price undertaking.
61In the light of all of the foregoing considerations, it must be held that consideration of the questions referred has disclosed no factor of such a kind as to affect the validity of Regulation No 1279/2007.
Costs
62Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Consideration of the questions referred has disclosed no factor of such a kind as to affect the validity of Council Regulation (EC) No 1279/2007 of 30 October 2007 imposing a definitive anti-dumping duty on certain iron or steel ropes and cables originating in the Russian Federation, and repealing the anti-dumping measures on imports of certain iron or steel ropes and cables originating in Thailand and Turkey.
[Signatures]
( *1 ) Language of the case: Bulgarian.