7 May 2019
Court of Justice Orders European Bicycle Manufacturers Association to Pay Giant’s Legal Costs
It was reported on 30 April 2019 that the European Bicycle Manufacturers Association has been ordered to pay EUR 45,000 by the Court of Justice to Chinese bicycle producer Giant. The payment is demanded so as to cover Giant’s legal costs, which it had incurred in the appeal proceedings before the Court of Justice brought by the European Bicycle Manufacturers Association. Those appeal proceedings arose pursuant to a ruling that had been made by the (lower-tier) General Court annulling a regulation imposing anti-dumping duties on bicycles from mainland China in so far as it concerned Giant.
By an appeal lodged on 4 February 2016, the European Bicycle Manufacturers Association (‘EBMA’) had requested the Court of Justice to set aside the judgment of the General Court of the European Union of 26 November 2015 in Giant (China) v Council.
In that case, Giant, a Chinese bicycle manufacturer, had applied to the General Court to annul a regulation imposing anti-dumping duties on imports of bicycles from mainland China in so far as it concerned Giant because the European Union’s institutions had refused to grant individual treatment to Giant. The General Court noted, as a preliminary point, that the Council of the EU had refused to grant individual treatment to Giant on the basis of two factors: first, the alleged lack of complete information on certain companies related to Giant which, in its view, made it impossible to calculate the Giant group’s export price and thus an individual anti-dumping margin for that group; secondly, the alleged existence of an intrinsic risk of circumvention of the anti-dumping measures. In those circumstances, the General Court decided to examine, first of all, the pleas in law concerning those two issues.
First, the General Court noted that, on the basis of the information provided by Giant, the Council of the EU had the information necessary to calculate a reliable export price for the Giant group and, therefore, to establish an individual dumping margin and individual anti-dumping duty for that group. According to the General Court, the Council was wrong to apply to Giant Article 18(1) of the basic anti-dumping regulation and to reach its conclusions regarding the determination of the Giant group’s export price on the basis of the facts available. The General Court went on to reject the arguments put forward by the Council of the EU in support of its claim that Giant had provided false or misleading information during the procedure.
As regards the second issue, the General Court found that in the circumstances of the present case the Council could not rely on a risk of circumvention to justify the refusal to apply an individual anti-dumping duty to Giant.
The General Court thus concluded that none of the evidence relied on by the Council of the EU permitted it to refuse individual treatment to Giant and, consequently, the General Court annulled Council Regulation 502/2013 of 29 May 2013 amending Implementing Regulation 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the Chinese mainland following an interim review, in so far as it concerned Giant.
EBMA, which had supported the Council’s action before the General Court, decided to appeal the General Court’s judgment. However, in a judgment of 14 December 2017, the Court of Justice of the European Union confirmed the General Court’s judgment and ordered EBMA to bear Giant’s costs.
As Giant and EBMA failed to reach an agreement as to the recoverable costs relating to the proceedings before the Court of Justice, Giant requested the Court of Justice to give a decision as to costs.
As the Court of Justice recognized that the case was complex and required an in-depth analysis, it set the amount of costs which EBMA must pay to Giant at EUR 45,000.
In light of the high legal costs of litigating before the Courts of the European Union, this decision of the Court of Justice is promising for exporters which consider that they are wrongly subject to anti-dumping duties and might decide to take legal actions against these duties. Indeed, through this decision, the Court of Justice has confirmed that legal fees incurred on appeal, after the annulation of the anti-dumping duties in first instance by the General Court, may have to be covered by the party unsuccessfully appealing the decision, whether it is an industry association or an institution of the European Union.