Advocate General Tamara Ćapeta asks the Court of Justice of the European Union to uphold the General Court’s December 2020 judgment that the Court is not required to review the legality of the basic ‘anti-dumping’ regulation (2016/1036) under China’s protocol of accession to the World Trade Organization (WTO), in an opinion delivered on Thursday 17 November (Case C-123/21 P).
The applicant, Changmao Biochemical Engineering, is challenging the European Commission’s decision to impose anti-dumping duties on imports into the EU of tartaric acid from China on the grounds that in December 2016, China’s WTO accession protocol expired and since then the Commission would be obliged in its anti-dumping investigations to treat China as a market economy country.
In her conclusions, Ms Ćapeta admits that the Court has always been reluctant to exercise its power of judicial review to verify the conformity of EU law with the WTO agreements.
Ms Ćapeta observes that this judicial restraint is the result of the Court’s recognition of the flexibility of the WTO system and the political reality. The EU’s trading partners do not submit actions of their institutions falling within the scope of WTO law to judicial review. The EU institutions may, without being subject to the Court’s control, choose to interpret the provisions of the WTO agreements in a certain way and decide, after assessing the consequences, not to comply with the Union’s obligations under the WTO agreements.
This judicial self-restraint is exceptional and is only possible because the WTO agreements allow it, the Advocate General points out.
The Court has before reviewed EU law in the light of WTO law (‘Nakajima’ case C-69/89). But this case-law does not apply to the present case, says Ms Ćapeta. In her view, since the regime established by the basic anti-dumping regulation is specific to the EU legal order, the Court cannot conclude either that this regime constitutes the implementation of the Chinese WTO accession protocol or that the EU institutions did not intend to derogate from the protocol.
See the conclusions: https://aeur.eu/f/444 (Original version in French by Mathieu Bion)