Foshan Shunde Yongjian Housewares & Hardware Co. Ltd, v. Council of the European Union, Case C-141/08 P, Judgment of the Court of Justice of the European Communities (First Chamber), 1 October 2009

By its appeal, Foshan Shunde Yongjian Housewares & Hardware Co. Ltd. seeks to have set aside the judgment of the Court of First Instance of the European Communities in Case T 206/07 by which it was dismissed the action seeking annulment of Council Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine. The appellant submits that the Court of First Instance erroneously concluded that the breach of its rights of defence could not result in annulment of the contested regulation on the ground that there was, in any event, no possibility that the administrative procedure could have resulted in a different outcome. Since the question of the interpretation of Article 2(7)(c) of the EC basic regulation on anti-dumping, concerning the status of market economy treatment for undertakings under antidumping investigation, is not an incidental but a fundamental issue, that breach deprived the appellant of the opportunity to demonstrate to the Commission that its interpretation was incorrect. The Court of Justice decided that if the Commission realises in the course of the investigation that, contrary to its original assessment, an undertaking meets the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic regulation, it must take appropriate action, while at the same time ensuring that the procedural safeguards provided for in the basic regulation are observed.