In a judgment handed down on October 18, the General Court annulled a European Commission decision which obliged national customs authorities to stop collecting anti-dumping duties with respect to goods produced by the Chinese producer Hubei Xinyegang Steel Co. Ltd (Case T 364/16, ArcelorMittal Tubular Products Ostrava and Others v Commission).
“This is a great win for the EU steel tube industry. The judgment reaffirms two important principles that we advanced throughout this case. First, an annulling judgment cannot entail annulment of an act that was not challenged before the EU Courts, even if it suffers from the same illegality,” said Brian R. Byrne, a Senior Associate in Baker Botts’ Brussels office.
“Second, legislation which has not been struck down by the EU Courts, or repealed, remains in force; if the Commission considers that the legislation is unsound, it must amend or repeal it following proper procedure. Otherwise, there is legal uncertainty, detrimental to EU commerce,” added Mr. Byrne.
“The Industry is very happy that the Court accepted our arguments. As of October 18, the anti-dumping duty of 27.2% must again be paid by importers on Hubei products. This is great news as it will slow down the imports of Hubei products. In the first half of 2018, compared to the same period in 2017, the imports of Chinese seamless steel tubes have shown a drastic increase of 49% which has already caused or threatens to cause further serious injury to the Union Industry, especially as these products (other seamless cat.24) are not included in the provisional safeguard measures decided by the Commission on 18 July 2018,” said The Defence Committee of the Seamless Steel Tubes Industry of the European Union.
The Baker Botts team representing ArcelorMittal Tubular Products Ostrava and the other applicants was Brian R. Byrne and retired partner Dr. Georg M. Berrisch.
Background to the Case:
In 2009, the Council of the EU adopted a Regulation that imposed anti-dumping duties on imports of certain steel pipes and tubes (“SPT”) from China, including SPT produced by Hubei Xinyegang Steel Co. Ltd (“Hubei”). Hubei successfully appealed that Regulation by securing a favourable judgment from the General Court of the EU (in 2014) which was ultimately upheld by the Court of Justice of the EU (“CJEU”) (in 2016).
While that litigation was ongoing, the Commission adopted in 2015 a new Regulation which re-imposed duties on Chinese SPT (including SPT produced by Hubei). However, following the judgment of the CJEU in 2016, the Commission considered that the duties were no longer applicable to Hubei and therefore it decided to amend the EU-wide TARIC database in a way that obliged national customs authorities to stop collecting the duties in relation to Hubei’s products.
The judgment of the General Court has now confirmed the position of the EU steel tube producers that the Commission’s decision to remove the duties applicable to Hubei was unlawful. The full judgment is available here.
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