delivered on 28 November 2024 (1)

Joined Cases C-554/23 P and C-568/23 P

Fertilizers Europe

AO Nevinnomysskiy Azot,

AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ (C-554/23 P)

and

European Commission

AO Nevinnomysskiy Azot,

AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ (C-568/23 P)

( Appeal – Dumping – Imports of ammonium nitrate originating in Russia – Definitive anti-dumping duties – Request for an expiry review – Article 11(2) of Regulation (EU) 2016/1036 – Article 5(3) and (9) of Regulation 2016/1036 – Legal time limit – Sufficiency of the evidence )

1.This Opinion concerns an appeal brought by the European Commission and Fertilizers Europe seeking to have the judgment of 5 July 2023, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission (T‑126/21, EU:T:2023:376), (2) set aside.

2.By that judgment, the General Court annulled Implementing Regulation (EU) 2020/2100, (3) which imposed a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036. (4) In essence, the General Court found that, according to the second and fourth subparagraphs of that article, Union producers who have lodged a request for an expiry review must submit sufficient evidence of a likelihood of injurious dumping at least three months before the end of the validity period of the anti-dumping measure concerned. This means that, once a request for an expiry review has been submitted by those producers, it is not for the Commission to remedy the insufficiency of the evidence submitted within that three-month period.

3.Both the Commission and Fertilizers Europe take the view that the interpretation of Article 11(2) of Regulation 2016/1036 provided by the General Court severely limits the exercise of collecting the evidence necessary to determine whether the initiation of an expiry review investigation, which may result in the prolongation of anti-dumping measures, is justified. They submit that the General Court erred in interpreting that provision or, in any event, erred in applying its own legal standard to the facts of the case at first instance.

4.The present case provides the Court of Justice with the opportunity to rule on the interpretation of a provision of considerable relevance to the maintenance of defensive measures in favour of Union producers against dumping practices originated in non-EU countries. The Court will have decide whether the interpretation of the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036 support the General Court’s conclusion as to the time limitations that apply, in its view, to the submission of evidence by Union producers in the context of an expiry review procedure. That requires, inter alia, that the Court of Justice determine whether some of the provisions of Regulation 2016/1036 which are applicable to the Commission’s investigations following original complaints are also relevant in the context of expiry reviews.

II. Legal framework

5.Regulation 2016/1036 sets out the trade defence rules preventing imports from non-EU countries dumped on the market of the European Union.

6. Article 5 of Regulation 2016/1036 provides:

‘…

3. The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

…

9. Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States concerning its analysis of the complaint normally within 21 days of the date on which the complaint was lodged with the Commission.’

7. Article 11 of Regulation 2016/1036 states:

‘1. An anti-dumping measure shall remain in force only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury.

An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury. Such 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, or by evidence of continued distortions on raw materials.

In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the Union producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the Union producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.

…

5. The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4.’

‘(20) The Commission initiated the expiry review based on the review request as initially submitted on 21 June 2019 and further supplemented by additional information (collectively referred to as “consolidated review request”). The consolidated review request, which constitutes the basis for the initiation of this expiry review, was placed in the open file and made available to interested parties for consultation. As stated in point 4.1 of the Notice, the Applicant provided in its review request evidence of a normal value based on actual domestic prices and equally constructed the normal value in case the domestic prices would not be considered as reliable and reflecting ordinary course of trade. Whether the original request was supplemented with estimated normal values on the basis of information available on actual domestic prices in the country concerned is irrelevant in so far as the Commission initiated the expiry review on the basis of the consolidated review request.

…

(23) … the Commission recalls its position set out in recital (20) that this expiry review was initiated on the basis of the consolidated review request. The Commission considers that the request in its version filed by the 3‑month deadline contained sufficient evidence that, subject to the clarifications provided by the applicants following the deficiency process to supplement its initial request, warranted the initiation of the expiry review.

…

(29) … as set out in recital (20), initiation in this expiry review is not solely based on information as received in the original review request of 21 June 2019, but also on further evidence supplemented by the applicant prior to the initiation and included in the consolidated review request (containing evidence of a normal value based on actual domestic prices as well as a constructed the normal value in case the domestic prices would not be considered as reliable).’

9. Article 1 of the contested regulation provides:

‘1. A definitive anti-dumping duty is hereby imposed on imports of solid fertilisers with an ammonium nitrate content exceeding 80% by weight, … originating in Russia.

…’

III. Facts and procedure

10. Paragraphs 1 to 13 of the judgment under appeal describe the background of the dispute at first instance. For the purposes of the present Opinion, that background can be summarised as follows.

11. AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ (5) are producers and exporters of ammonium nitrate established in Russia. They are subject to the anti-dumping duties that result from Council Regulation (EC) No 2022/95 of 16 August 1995 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 1995 L 198, p. 1), as subsequently maintained in 2002, 2008 and 2014 following several expiry reviews.

12. On 21 June 2019, the Commission received a request for the initiation of an expiry review of those duties, on the basis of Article 11(2) of Regulation 2016/1036, (6) lodged by Fertilizers Europe, a European association of fertiliser manufacturers. That request was received following the publication in the Official Journal of the notice of the impending expiry of certain anti-dumping measures (OJ 2019 C 53, p. 3), which included the duty referred to in paragraph 11 above.

13. The original request alleged that there was evidence of continuation of dumping if the measures were allowed to expire, based on a comparison between export prices and a constructed normal value. In that regard, Fertilizers Europe relied on the existence of a particular market situation in Russia as a result of a concerted price constraint agreement and the Russian Government’s strategy of setting artificially low prices for natural gas, which is the main input for ammonium nitrate.

14. Following a request from the Commission, on 20 August 2019, Fertilizers Europe lodged additional information, which was incorporated into a consolidated version of the request for an expiry review. (7) The additional information added to the consolidated request was underpinned by a normal value based on actual prices on the Russian domestic market.

15. On 23 September 2019, the Commission published a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of ammonium nitrate originating in Russia (OJ 2019 C 318, p. 6), (8) taking the view that there was sufficient evidence to initiate an expiry review and to carry out an investigation.

16. Following the investigation, the Commission concluded that there was a likelihood of recurrence of dumping and injury if the anti-dumping measures in force concerning ammonium nitrate originating in Russia were allowed to expire. It therefore decided, by adopting the contested regulation, to extend those measures for a period of five years.

17. By application lodged at the Registry of the General Court, the applicants at first instance brought an action for annulment of the contested regulation under Article 263 TFEU. In support of their action, they raised a single plea in law alleging, in essence, infringement of Article 11(2) and (5) and Article 5(3) of Regulation 2016/1036, in that the Commission erred in initiating the expiry review in spite of the lack of sufficient evidence to do so.

18. In particular, the applicants took the view, in the first place, that the Commission should have taken into account only the original request as a basis for its assessment as to whether the evidence submitted was sufficient to initiate the expiry review and not the additional information, which altered the substance of that request. In the second place, they claimed that the original request did not contain sufficient evidence of a likelihood of a continuation of dumping if the measures were allowed to expire. In the third place, they argued that, in any event, the Commission erred in considering that the consolidated request contained sufficient evidence of such a likelihood.

19. In the judgment under appeal, the General Court found that it follows from a literal reading of Article 11(2) of Regulation 2016/1036, (9) as well as from the objective of that provision, (10)

that the examination as to whether a request made by Union producers contains sufficient evidence to initiate an expiry review must be carried out only on the basis of the information submitted no later than three months before the end of the validity period of the anti-dumping measure concerned. In the General Court’s view, the Commission is allowed to receive or request additional clarifications from Union producers during that period, resulting in a consolidated version of the request. However, that information can only supplement or corroborate the sufficient evidence submitted within that legal time limit. It can neither constitute new arguments or evidence, nor remedy the insufficiency of the evidence contained in that request. The General Court further held that Article 11(5) of Regulation 2016/1036, read in conjunction with Article 5(3) and (9) thereof, did not call that finding into question.

20.In the light of the foregoing, the General Court found, on the one hand, that the Commission erred when stating in the contested regulation that it was irrelevant whether the original request had been supplemented with additional evidence and that the initiation of the expiry review could be warranted on the basis of the consolidated request. On the other hand, it considered that the additional information provided by the Union producers within the three-month time limit could not be understood as being intended to supplement the evidence set out in the original request.

21.The General Court therefore concluded that the complaint submitted by the applicants at first instance, alleging infringement of Article 11(2) of Regulation 2016/1036, had to be upheld and the contested regulation annulled, without it being necessary to examine the other complaints put forward by them.

22.By their respective appeals, lodged with the Court of Justice on 4 and 14 September 2023, Fertilizers Europe and the Commission claim in Cases C‑554/23 P and C‑568/23 P that the Court should:

–set aside the judgment under appeal;

–dismiss the action brought at first instance;

–order the applicants at first instance to pay the costs.

23.By decision of the President of the Court of Justice of 9 October 2023, Cases C‑554/23 P and C‑568/23 P were joined for the purposes of the written and oral procedure and of the judgment.

24.The applicants at first instance contend that the Court should:

–dismiss the appeal and confirm the judgment under appeal;

–in the alternative, refer the case back to the General Court;

–order the appellants to pay the costs.

25.No oral hearing has been held in the present case.

In support of its appeal in Case C‑554/23 P, Fertilizers Europe raises four grounds. In particular, it submits that:

–the General Court erred in law in finding that sufficient evidence to justify initiation of an expiry review must be present in a request submitted before the three-month period and not merely in the Commission’s possession at the time an expiry review is initiated;

–the General Court erred in law in finding that Article 11(5) of Regulation 2016/1036, read in conjunction with Article 5(3) and Article 5(9) of that regulation, does not allow the submission of new information with regard to expiry review requests after the beginning of the three-month period;

–the General Court erred in law in finding that the provision by Fertilizers Europe to the Commission of additional price-based dumping calculations after the beginning of the three-month period constitutes new evidence and that the Commission could not rely on that information in deciding to initiate the expiry review;

–the General Court made a manifest error of assessment and distorted the facts and evidence before it in finding that it is not apparent from the contested regulation that the Commission considered that the original request for an expiry review contained sufficient evidence that the expiry of the measures would likely result in a continuation of dumping.

27.For its part, in Case C‑568/23 P, the Commission raises two grounds, which relate, first, to an error of law concerning the interpretation of Article 11(2) of Regulation 2016/1036, and, second, to an error of law concerning the application of Article 11(2) of Regulation 2016/1036 as regards the contested regulation.

28.In so far as, in the light of the specific arguments submitted by Fertilizers Europe, the four grounds of its appeal can essentially be subsumed into the two grounds of the Commission’s appeal, I shall examine the present case following the structure of that institution’s submission before the Court. Moreover, it is important to point out that, should the analysis of the Commission’s first ground of appeal lead to the conclusion that it is founded, then it would not be necessary to examine the second ground of appeal, as it is submitted merely in the alternative.

1. Arguments of the parties

29.The Commission and Fertilizers Europe submit that the General Court erred in concluding that Regulation 2016/1036 confines the examination to be carried out for the purposes of initiating an expiry review to the information and evidence submitted by the Union producers before the three-month period set out in the fourth subparagraph of Article 11(2) of Regulation 2016/1036. In their view, the condition relating to the sufficiency of the evidence, as follows from the second subparagraph of that provision, must be satisfied only at the time when the decision to initiate the expiry review is taken. During the three-month period, the Commission can therefore request any additional information that it considers relevant for determining whether an expiry review should be initiated.

30.More specifically, the Commission and Fertilizers Europe maintain that, contrary to the findings of the General Court in the judgment under appeal, the literal reading of Article 11(2) of Regulation 2016/1036 is neutral as to whether the Commission must limit its assessment on the sufficiency of evidence to the request as filed within the legal time limit laid down by that article. That literal reading is further supported by the contextual interpretation of Regulation 2016/1036, in particular by Article 5(3) and (9) thereof, which must be regarded as applicable to the initiation of expiry reviews under Article 11(5) of that regulation. Finally, both parties argue that the purpose of the three-month period is to direct Union producers as to the timing for filing a request, with a view to organising, in an orderly fashion, the possible initiation of an expiry review and informing the interested parties accordingly. In their submission, the purpose of that time period is not to ensure legal certainty for market operators in such a way as to limit, on that basis, the information that the Commission can collect during its assessment of whether an expiry review request is warranted.

31.The applicants at first instance contest those arguments. In their view, the General Court was right in interpreting the fourth subparagraph of Article 11(2) of Regulation 2016/1036, read in conjunction with the second subparagraph thereof, as requiring that the sufficiency of the evidence to initiate an expiry review must be assessed by reference to the request as lodged no later than three months before the expiration of the anti-dumping measure. They argue that Regulation 2016/1036 does not allow the submission of new evidence after that legal time limit. Only explanations and clarifications that make it possible to understand evidence already submitted within that time limit, or to confirm the sufficiency thereof, may be requested or filed during the three-month period. By contrast, as the General Court found, that additional information cannot constitute new arguments or evidence which did not exist at the time when the request for a review was made.

32.By the first ground of appeal, the Court of Justice is asked to determine whether Article 11(2) of Regulation 2016/1036 limits the Commission, when assessing whether an expiry review should be initiated, to the evidence submitted by Union producers in their request before the three-month time limit set out in the fourth subparagraph of that provision, at most supplemented by additional information supporting that evidence.

33.The Court of Justice has consistently held that, for the purpose of interpreting a provision of EU law, it is necessary to consider not only the wording of that provision, but also its context and the objectives pursued by the rules of which it is part. In the judgment under appeal, the General Court considered that those three interpretative rules lead to the conclusion that, under Article 11(2) of Regulation 2016/1036, Union producers must provide, before the three-month time limit that applies to expiry review requests, sufficient evidence that the expiry of the measure concerned would likely result in a continuation or recurrence of dumping and injury.

34.Article 11(1) of Regulation 2016/1036 provides that an anti-dumping duty is to be applicable only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury. Article 11(2) of Regulation 2016/1036 further provides, in the first subparagraph thereof, that a definitive anti-dumping measure is to expire, inter alia, five years from the date of the conclusion of the most recent review, except if it is determined, in a new review, that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review is to be initiated upon a request made by or on behalf of Union producers, as in the present case, or on the initiative of the Commission.

35.Moreover, the second subparagraph of Article 11(2) of Regulation 2016/1036 states that an expiry review is to be initiated only where the request contains sufficient evidence that the expiry of the anti-dumping measure would likely result in a continuation or recurrence of dumping and injury. That provision also sets out the types of evidence that can demonstrate such likelihood. In turn, the fourth subparagraph of Article 11(2) of Regulation 2016/1036 provides, in the second sentence thereof, that Union producers are, no later than three months before the end of the five-year period of validity of an anti-dumping measure, to be entitled to lodge a review request. That sentence ends by stating ‘in accordance with the second subparagraph’.

(a) Textual interpretation

36.As regards the textual interpretation of Article 11(2) of Regulation 2016/1036, the parties essentially disagree as to the scope of the term ‘in accordance with the second subparagraph’, which follows, as has been noted, from the second sentence of the fourth subparagraph of that article. The applicants at first instance argue, in line with the judgment under appeal, that that reference means that the three-month time limit by which Union producers can submit a review request also applies to the condition related to the sufficiency of evidence that that request must satisfy in order to justify the initiation of an expiry review. For their part, the Commission and Fertilizers Europe consider that that interpretation simply does not follow from the wording of any of those provisions, not even from a combined reading thereof.

37.As a preliminary point, it is important to recall that the phrase ‘in accordance with’, when employed in a normative act, is usually defined as meaning ‘in line with’ or ‘following’ a particular rule. If a normative act provides that something is to be done in accordance with that particular rule, then it must be done in the way that that rule establishes that it should be done.

38.As regards the fourth subparagraph of Article 11(2) of Regulation 2016/1036, the phrase ‘in accordance with’ appears at the end of a sentence addressed to Union producers. That sentence states that, after the publication of a notice of impending expiry in the Official Journal, Union producers are to be entitled to lodge a review request before the Commission. To that end, it sets out a specific time limit and states, as a separate condition, that the lodging of the request is to be done following – ‘in accordance with’ – what is laid down in the second subparagraph of Article 11(2) of Regulation 2016/1036.

39.The source of the ambiguity that lies at the heart of the disagreement between the parties is rooted in the fact that, from a literal perspective, the first sentence of the second subparagraph of Article 11(2) of Regulation 2016/1036 does not list any conditions addressed to Union producers for the submission of a request for an expiry review. Instead, that sentence defines the legal standard governing the initiation of an expiry review, which is addressed to the Commission and which states, in essence, that that institution must be in receipt of a request with sufficient evidence of likelihood of injurious dumping at the time when that review is to be initiated. It is therefore difficult to determine how exactly a request for an expiry review is to be lodged in accordance with the first sentence of the second subparagraph of Article 11(2) of Regulation 2016/1036.

40.Nonetheless, if the elements stemming from the second subparagraph of Article 11(2) of Regulation 2016/1036 are to be applied to the lodging of a request by Union producers, then it could be understood that, in their request, those producers must claim that the expiry of the anti-dumping measure concerned is likely to result in a continuation or recurrence of injurious dumping. They would also have to provide, to that end, the types of evidence listed in that provision. By contrast, in so far as the standard of the sufficiency of evidence concerns only the Commission at the time when a decision to initiate a review is taken, I do not think that it can be inferred from the reading of the second paragraph of Article 11(2) of Regulation 2016/1036 that Union producers must meet that standard before the three-month period set out in the fourth paragraph thereof. To my mind, such an interpretation requires an additional hermeneutic step which, in the absence of a more explicit statement in that respect, none of the wordings of the subparagraphs concerned support.

41.That view is compounded by other language versions of Regulation 2016/1036, which, as the Court of Justice has repeatedly held, must be taken into account when the wording of a provision of EU law is ambiguous or where there is divergence between the various language versions. For instance, as the Commission and Fertilizers Europe point out, the Spanish-language version of the fourth subparagraph of Article 11(2) of Regulation 2016/1036 employ the phrase ‘en virtud de’

’ (21) (‘by virtue of’) in the place of the phrase ‘in accordance with’ in the English version. By using that phase, the Spanish-language version makes clear that the request referred to in the fourth subparagraph of Article 11(2) of Regulation 2016/1036 is that also referred to in the second subparagraph of that article. However, it does not necessarily require that Union producers lodge a request for an expiry review in accordance with the conditions established in that second subparagraph, which precludes a finding that the requirement as to the sufficiency of evidence applies to those producers at that point in time.

42.I am therefore not convinced, contrary to the claims of the applicants at first instance, that the textual interpretation of Article 11(2) of Regulation 2016/1036, in particular the second and fourth subparagraphs thereof, unequivocally support the General Court’s conclusion that the request for an expiry review submitted by Union producers must, before the three-month period laid down in that provision, already contain sufficient evidence as to the likelihood of a continuation or recurrence of injurious dumping, and particularly to the standard that is required to initiate a review under those provisions. That interpretation does not lead either to a clear finding that the Commission is precluded from remedying the insufficiency of the evidence provided by those producers within that three-month period and that any request addressed by the Commission to them, in order to collect further evidence supporting their claim, must be of a corroborative or supplementary nature only.

(b) Contextual interpretation

43.Given the ambiguity of the subparagraphs examined above, it is necessary to put those provisions in context, in line with the case-law cited in point 33 of the present Opinion, in order to ascertain the correct meaning thereof. Also in that respect, the applicants at first instance and the appellants put forward diametrically opposed views. While the former argue that the General Court rightly interpreted the context of Article 11(2) of Regulation 2016/1036, the latter take the view that it erred by not taking sufficient account of other relevant provisions of that regulation, in particular Article 5(3) and (9) thereof.

44.From the outset, I would invite the Court to take into consideration, for the purposes of carrying out a contextual interpretation of the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036, the first and the third subparagraphs thereof.

45.In so far as concerns the first subparagraph of Article 11(2) of Regulation 2016/1036, the last sentence provides that a review of an anti-dumping measure may take place, not only at the initiative of Union producers, but also at the initiative of the Commission. The Commission thus remains empowered to collect, on its own initiative, the evidence necessary to initiate an expiry review, even when the time limit provided for in the fourth subparagraph of Article 11(2) of Regulation 2016/1036, which only applies to requests submitted by Union producers, has expired.

46.As a matter of internal consistency, an interpretation whereby, on the one hand, the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036 set out a time limit to the examination powers of the Commission in the context of requests submitted by Union producers, while, on the other hand, the first subparagraph entitles the Commission to gather, at any time, the necessary evidence to decide by itself the initiation of an expiry review, is highly questionable.

47.Against that consideration, the applicants at first instance argue that, since the expiry review that led to the adoption of the contested regulation was not initiated by the Commission on its own initiative, allegations referring to the absence of time limits for the purpose of obtaining sufficient evidence in the context of such an initiative should be dismissed. However, in that regard, suffice it to observe that the purpose of the contextual interpretation of a particular provision is precisely to relate it to the remainder of the provisions contained in the same normative act – even if they are not applicable to the case at hand – and to find the most harmonious and coherent sense overall. That is why I take the view that the claim put forward by the applicants at first instance is of no consequence.

48.As regards the third subparagraph of Article 11(2) of Regulation 2016/1036, that provision stipulates that, in carrying out investigations in relation to an expiry review, the Commission’s conclusions are to be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

49.That provision makes clear that the investigations carried out by the Commission in the context of expiry reviews are aimed to ensure, in line with the requirement laid down in Article 11(1) of Regulation 2016/1036, that an anti-dumping measure remains in force as long as it is necessary to counteract the dumping that is causing injury. Here again, if the Commission is to rely on all relevant evidence during its investigation in order to complete that task, the Commission must not be limited, not even from a temporal point of view, in terms of the information that it may consider necessary to request from Union producers in order to decide, as a preliminary step, whether to initiate such an investigation.

50.It follows that, when linked back to the first and third subparagraphs of Article 11(2) of Regulation 2016/1036, the second and fourth subparagraphs of that same provision are more coherently interpreted by considering that the Commission is not precluded from collecting further or new evidence from Union producers, whenever it considers that their original request requires that evidence for the initiation of an expiry review, even within the three months laid down in the latter of those subparagraphs.

51.The finding above is consistent, moreover, with the spirit of other provisions of Regulation 2016/1036, which, in my view and contrary to the findings of the judgment under appeal, must be considered to be applicable to expiry reviews by virtue of Article 11(5) of Regulation 2016/1036. The latter article provides that the relevant provisions of Regulation 2016/1036 with regard to procedures and the conduct of investigations, excluding those relating to time limits, are to apply in the context of expiry reviews. As the Commission and Fertilizers Europe submit, that must be the case for Article 5(3) and (9) of Regulation 2016/1036.

52.In the first place, it is important to recall that Article 5 of Regulation 2016/1036, under the heading ‘Initiation of proceedings’, lays down, in paragraph 3 thereof, the legal standard that the Commission is required to apply when deciding whether a complaint justifies the initiation of an original investigation. More specifically, that paragraph states that the Commission is, as far as possible, to examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

53.The General Court has acknowledged in its case-law, (22) based on an interpretation that could be easily endorsed by the Court of Justice, that, under Article 5(3) of Regulation 2016/1036, the Commission is not required to limit itself to the information provided in the complaint. That institution remains free to gather any new additional evidence and information, including from the complainant, in order to satisfy the criterion defined in that provision concerning the sufficiency of the evidence necessary to initiate an investigation. (23)

54.In that regard, it is important to point out that, both in the context of an original complaint and a request for an expiry review, the Commission carries out, first and foremost, an examination as to whether there is sufficient evidence to justify the initiation of an investigation. In the first case, the assessment of the sufficiency of the evidence submitted is made having regard to the existence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury. (24) In the second case, as already indicated above, that assessment concerns the likelihood that the expiry of an anti-dumping measure will result in a continuation or recurrence of dumping and injury. (25) Following the initiation and the conduct of an investigation, the Commission can therefore adopt a new anti-dumping measure (26) or maintain one that is about to expire. (27)

55.It is true, as the applicants at first instance note, in line with the judgment under appeal, that the Court of Justice has held in its case-law that a review procedure is different from that of an initial investigation, which is governed by other provisions of the same regulation. (28) That is why not all of the provisions governing the original investigation are intended to apply to the review procedure, in the light of the general scheme and purposes of the system laid down by Regulation 2016/1036. (29)

56.Nevertheless, considering what is provided for in Article 11(5) of Regulation 2016/1036, the main aim of which is to render applicable, as a rule, the provisions concerning the conduct of investigations to expiry reviews, there is no reason, to my mind, objectively justifying limiting the Commission’s powers of examination for the purposes of initiating that review as compared to those that it can exercise in order to initiate an original anti-dumping investigation. The only relevant element to take into account in that respect is that the Commission is to determine, in both cases, whether an investigation should be initiated, which requires that it have the same powers of examination, in particular as regards the sufficiency of the evidence and information provided in a complaint or an expiry review request.

57.The same conclusion can be reached, in the second place, if account is taken of Article 5(9) of Regulation 2016/1036, which the General Court considered not to be applicable to the case at first instance. In that court’s view, that provision refers exclusively to time limits and, therefore, had to be set apart pursuant to the exception established in Article 11(5) of Regulation 2016/1036.

58.Article 5(9) of Regulation 2016/1036 lays down the procedure that the Commission is to follow when it receives a complaint in accordance with Article 5(1) of that same regulation. That procedure includes informing the complainant about the sufficiency or insufficiency of the original complaint.

59.Admittedly, Article 5(9) of Regulation 2016/1036 specifies that the Commission’s duty to provide information must be discharged within 45 days after the lodging of the original complaint. That said, the reference to the time limit that applies in that case can be easily separated from the statement of the duty to provide information that applies by virtue of that provision. After all, as the Commission rightly observes, no other provision of Regulation 2016/1036 does actually serve as the basis of that duty, which means that Article 5(9) of Regulation 2016/1036 is the only normative source of that duty.

60.It follows that, in so far as Article 5(9) of Regulation 2016/1036 allows the Commission to request further information from a complainant for the purposes of initiating an investigation, when the original complaint is considered to be insufficient, a similar possibility must be envisaged in the context of the assessment of whether an expiry review should be initiated. Again, I am of the view that the General Court erred in reaching the opposite conclusion. (30)

61.Having regard to the foregoing considerations, the contextual interpretation of the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036 and, in particular, the way in which these are linked to other relevant provisions of that regulation, are capable, in my view, of shedding light on the meaning that those subparagraphs ought to be given. That interpretation, in fact, militates in favour of considering that, when assessing whether to initiate an expiry review, the Commission is not limited to the evidence contained in the original request submitted by Union producers before the three-month period laid down in the fourth subparagraph of Article 11(2) of Regulation 2016/1036. On the contrary, the Commission must able to request any additional information that it deems relevant for determining whether an expiry review should be initiated.

(c) Teleological interpretation

62.At this stage, it is important to ascertain whether the contextual interpretation proposed in the preceding points of this Opinion can also be admitted on the basis of a teleological interpretation of the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036, having regard to the aims of expiry reviews and the purposes of the system established by that regulation.

63.In the judgment under appeal, the General Court in fact considered that the objective of the time limit resulting from the fourth subparagraph of Article 11(2) of Regulation 2016/1036 is to contribute to ensuring legal certainty. On the one hand, the General Court held that that time limit enables market operators to know, in good time, whether the anti-dumping measures are likely to be maintained. On the other hand, the same time limit enables the Commission to have an appropriate period of time to assess the evidence contained in a request for a review made within the legal time limit by Union producers and to ensure that the evidence is sufficient and relevant, so as to avoid an anti-dumping measure being unduly maintained beyond the prescribed period.

64.As a preliminary point, I would recall that the three-month period laid down in the fourth subparagraph of Article 11(2) of Regulation 2016/1036 was first introduced, in relation to the procedure applicable to the examination of expiry review requests, by Article 11(2)(c) of Regulation (EC) No 3283/94. (31) All parties agree that one the purposes of that introduction was to direct Union producers as to the timing when a request had to be filed, with a view to organising in an orderly fashion either the termination of the measures or the initiation of an expiry review, and inform the interested parties accordingly.

In that regard, it is important to point out, first, as the Commission claims, that the request for an expiry review submitted by Union producers is not shared with any interested party until the publication of the notice of initiation of the investigation in the Official Journal, as provided in Article 11(5) of Regulation 2016/1036. That means, on the one hand, that the pre-initiation phase of an expiry review is not adversarial and, on the other hand, that the three-month time limit cannot be regarded as being intended to protect the rights of defence of any other interested party. Those parties are in a position to exercise their procedural and substantive rights fully during the expiry review itself.

68.Second, as briefly mentioned in point 49 of the present Opinion, Article 11(1) of Regulation 2016/1036 makes clear that the expiry review procedure has, as its main aim, to ensure that an anti-dumping measure remains in force if it is necessary to counteract the dumping which is causing injury. That statement evidently corresponds to the overall purpose of Regulation 2016/1036, which provides, in Article 1(1) thereof, under the heading ‘Principles’, that an anti-dumping duty may be imposed on any dumped product whose release for free circulation in the European Union causes injury. Arguably, the Commission would not be able plainly to fulfil the tasks that Article 11(1) of Regulation 2016/1036 confers on that institution, which are consistent with international trade laws, specifically those of the World Trade Organisation, if it is established that the Commission is limited in terms of the information that it can gather from Union producers from a temporal perspective. No other compelling objective, concerning in particular the undertakings subject to an anti-dumping duty under review, justifies disregarding the preceding consideration.

69.It follows that, even though the General Court could correctly find that the time limit provided in Article 11(2) of Regulation 2016/1036 confers on the Commission an appropriate period of time to assess the evidence contained in a request for a review and that, during that period, that institution must ensure that the evidence is sufficient and relevant so as to avoid an anti-dumping measure being unduly maintained beyond the prescribed period, that court did not correctly assess the objectives that expiry review procedures must satisfy according to Article 11(1) of Regulation 2016/1036. In particular, it erred in considering that the three-month period set out in the fourth subparagraph of Article 11(2) of Regulation 2016/1036 aimed to ensure legal certainty for market operators, specifically by restricting the type of information that the Commission could collect for the purposes of determining whether an expiry review should be initiated.

70.Having regard of the teleological analysis proposed in the preceding points, the objectives to be pursued by expiry review procedures, in the light of Article 11(1) of Regulation 2016/1036 and of the second and fourth subparagraphs of Article 11(2) thereof, confirm the conclusions of the contextual interpretation of those provisions, as I have explained in point 61 of the present Opinion.

71.It follows from the considerations above that none of the rules laid down by the Court of Justice’s case-law for discerning the meaning of a provision of EU law can support the General Court’s interpretation of the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036, as it is apparent from the judgment under appeal.

72.That is why I must conclude that, contrary to the deduction made by the General Court, the Commission was right in considering that, pursuant to those provisions, once Union producers submit a request for an expiry review, that institution is not limited in its powers to gather all the further information it considers necessary to establish whether there is a need to initiate a review procedure. The Commission also did not err when it stated in the contested regulation that it was irrelevant whether the original request had been supplemented with additional information and that the initiation of the review could be warranted on the basis of the consolidated request.

73.The first ground of appeal submitted by the Commission and Fertilizers Europe should therefore be upheld.

74.Furthermore, under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court is to set aside the judgment of the General Court if the appeal is well founded. Where the proceedings so permit, it may itself give final judgment in the matter. It may also refer the case back to the General Court.

75.Since I propose that the Court of Justice uphold the first ground of appeal submitted by the Commission and Fertilizers Europe, alleging an error in law concerning the interpretation of Article 11(2) of Regulation 2016/1036, the judgment under appeal should consequently be set aside, without it being necessary to examine the second ground of appeal submitted in the alternative, which relates to the question whether the additional information provided by Fertilizers Europe could, in any event, be categorised as corroborative or supplementary of the information contained in the initial request.

76.In addition, inasmuch as the applicants at first instance argued, in support of their action for annulment before the General Court, that the Commission erred, in any event, in considering that the consolidated request contained sufficient evidence of a likelihood of a continuation of dumping and that that claim was not examined at first instance, the state of the proceedings does not permit the Court of Justice to give final judgment in the present case.

77.Accordingly, the case should be, in my view, referred back to the General Court and the costs reserved.

Final remark

78.In the light of the analysis of the present Opinion, I suggest that the Court of Justice:

– set aside judgment of 5 July 2023, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission (T‑126/21, EU:T:2023:376);

– refer the case back to the General Court;

– order that the costs are reserved.

Original language: English.

The judgment under appeal.

Commission Implementing Regulation of 15 December 2020 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of the Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2020 L 425, p. 21; ‘the contested regulation’).

Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), as amended (‘Regulation 2016/1036’).

The applicants at first instance.

The original request.

The consolidated request.

The notice of initiation.

The judgment under appeal, paragraphs 65 to 68.

The judgment under appeal, paragraphs 69 and 70.

The judgment under appeal, paragraphs 76, 77 and 103.

The judgment under appeal, paragraphs 71 to 74.

The judgment under appeal, paragraphs 78 to 85 and 86 to 92.

The judgment under appeal, paragraph 104.

The judgment under appeal, paragraph 136.

The judgment under appeal, paragraphs 141 and 142.

See, inter alia, judgment of 16 November 2016, Hemming and Others (C‑316/15, EU:C:2016:879, paragraph 27 and the case-law cited).

See Cambridge English Dictionary (2024), available at https://dictionary.cambridge.org/dictionary/english/accordance?q=in+accordance+with.

See Collins Dictionary (2024), available at https://www.collinsdictionary.com/dictionary/english/in-accordance-with#google_vignette.

See, inter alia, judgment of 17 January 2023, Spain v Commission (C‑632/20 P, EU:C:2023:28, paragraph 42).

The Spanish-language version of the fourth subparagraph of Article 11(2) of Regulation 2016/1036 states that ‘… los productores de la Unión podrán presentar una solicitud de reconsideración en virtud de lo dispuesto en el párrafo segundo por lo menos tres meses antes de la finalización del período de cinco años’.

See judgment 15 December 2016, Gul Ahmed Textile Mills v Council (T‑199/04 RENV, EU:T:2016:740).

Ibid. (paragraph 96).

See Article 5(2) of Regulation 2016/1036.

See the second subparagraph of Article 11(2) of Regulation 2016/1036.

See Article 9 of Regulation 2016/1036.

See Article 11 of Regulation 2016/1036.

Judgment of 11 February 2010, Hoesch Metals and Alloys (C‑373/08, EU:C:2010:68, paragraphs 65 and 66).

Ibid. (paragraph 77).

I should briefly add that, as follows from the preceding points of the present Opinion, the EU legislature provides the Commission with a longer period to make a determination regarding the sufficiency of the evidence in an expiry review request – namely, 90 days – as compared to a request to initiate an original investigation – namely, 45 days. As a matter of internal consistency, that circumstance invites one to consider that the Commission should be recognised as having at least the same powers to assess the sufficiency of the evidence in the context of a review procedure as in the context of the original investigation, and definitely not fewer powers. Otherwise, such a difference in the duration of the time periods, which cannot be justified solely on the basis of the specific procedure that applies to expiry reviews pursuant to Article 11(6) of Regulation 2016/1036, as the applicants at first instance argue, would lack any sense.

Council Regulation of 22 December 1994 on protection against dumped imports from countries not members of the European Community (OJ 1994 L 349, p. 1).