GC, 3rd chamber, June 9, 2021, No T-781/16

THE GENERAL COURT (Third Chamber),

1 The applicants, Puma SE and the other legal persons whose names are set out in the annex, are footwear manufacturers and retailers. They import significant quantities of leather footwear into the European Union from third countries, including China and Vietnam.

The regulations imposing an initial anti-dumping duty

2 On 23 March 2006, the Commission of the European Communities adopted Regulation (EC) No 553/2006 imposing a provisional anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 98, p. 3).

3 On 5 October 2006, the Council of the European Union adopted Regulation (EC) No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1).

4 Article 1(3) of Regulation No 1472/2006 fixed the rate of that duty at 16.5% for footwear with uppers of leather (‘the products at issue’) manufactured by all companies established in China, with the exception of those manufactured by Golden Step, for which the rate was 9.7%, and at 10% for those manufactured by all companies established in Vietnam. Article 3 of that regulation provided that the regulation would enter into force on the day following its publication in the Official Journal of the European Union, which took place on 6 October 2006, and that it would remain in force for a period of two years, that is to say from 7 October 2006 until 6 October 2008.

5 On 29 April 2008, the Council extended that anti-dumping duty to imports consigned from the Macao Special Administrative Region (SAR), by adopting Regulation (EC) No 388/2008 extending the definitive anti-dumping measures imposed by Regulation No 1472/2006 on imports of certain footwear with uppers of leather originating in the People’s Republic of China to imports of the same product consigned from the Macao SAR, whether declared as originating in the Macao SAR or not (OJ 2008 L 117, p. 1).

6 On 22 December 2009, a prolonging regulation was adopted, namely Council Implementing Regulation (EU) No 1294/2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 (OJ 2009 L 352, p. 1).

7 Article 1(3) and (4) of Implementing Regulation No 1294/2009 fixed the rate of that duty at 16.5% for the products at issue manufactured by all companies established in China, with the exception of Golden Step, and for those consigned from the Macao SAR, at 9.7% for the products at issue manufactured by Golden Step and at 10% for those manufactured by all companies established in Vietnam. Article 2 of that regulation provided that the regulation would enter into force on the day following that of its publication in the Official Journal of the European Union, which took place on 30 December 2009, and that it would be in force for a period of 15 months.

8 The anti-dumping duty expired on 31 March 2011, as indicated in the Commission Notice published in the Official Journal of the European Union on 16 March 2011 (OJ 2011 C 82, p. 4).

Subsequent proceedings

The first series of cases before the Courts of the European Union

9 Regulation No 1472/2006 was the subject of proceedings before the General Court in the cases which gave rise to the judgments of 4 March 2010, Brosmann Footwear (HK) and Others v Council (T‑401/06, EU:T:2010:67), and of 4 March 2010, Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council (T‑407/06 and T‑408/06, EU:T:2010:68), in which the General Court dismissed the actions brought by certain companies established in China which produce and export the products at issue.

10 On appeal against those judgments, the Court of Justice, by judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), first, set aside those judgments of the General Court and, second, annulled Regulation No 1472/2006 in so far as it concerned those producing and exporting companies.

11 More specifically, the Court of Justice held that Regulation No 1472/2006 was vitiated by an infringement of the obligation imposed on the Commission to examine the claims of producers for market economy treatment (‘MET’) and to adjudicate upon each of those claims within a period of three months from the initiation of its investigation, in accordance with Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12) (replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51), in turn replaced by 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; ‘the basic regulation’)), and in particular Article 2(7)(b) and (c) of Regulation No 384/96 (now Article 2(7)(b) and (c) of the basic regulation), including where the Commission had decided to use the sampling method as provided for in Article 17 of Regulation No 384/96 (now Article 17 of the basic regulation) to calculate the dumping margins and the producers who had submitted those claims were not included in the sample selected (see, to that effect, judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 36 to 40, and of 15 November 2012, Zhejiang Aokang Shoes v Council, C‑247/10 P, not published, EU:C:2012:710, paragraphs 29 to 34).

12 Subsequently, on 19 February 2014, the Commission adopted a proposal for a Council Implementing Regulation re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by [those undertakings] (COM/2014/087 final). By Implementing Decision 2014/149/EU of 18 March 2014 rejecting the proposal for an Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co. Ltd and Zhejiang Aokang Shoes Co. Ltd (OJ 2014 L 82, p. 27), the Council decided to reject the Commission’s proposal on the ground that the operators had acquired a legitimate expectation that their debt was time-barred and, consequently, ‘extinguished’ (see recital 5 of that decision).

The second series of cases before the Courts of the European Union

13 The judgments of the Court of Justice cited in paragraph 11 above were relied on by three importers of the products at issue, namely Puma, C & J Clark International Ltd (‘Clark’) and Timberland Europe BV (‘Timberland’), in order to challenge the relevant anti-dumping measures before the competent national courts, which subsequently referred questions to the Court of Justice for a preliminary ruling on interpretation and validity under Article 267 TFEU.

14 Thus, on 13 December 2013, 24 January and 10 December 2014, the First-tier Tribunal (Tax Chamber) (United Kingdom), the Finanzgericht München (Finance Court, Munich, Germany) and the Rechtbank Noord-Holland (District Court, Noord-Holland, Netherlands), respectively, submitted requests for a preliminary ruling to the Court of Justice under Article 267 TFEU concerning the validity and the interpretation of Regulation No 1472/2006 and Implementing Regulation No 1294/2009, and, as regards the requests of the First-tier Tribunal (Tax Chamber) and the Finanzgericht München (Finance Court, Munich), concerning the interpretation of Article 236 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 (OJ 2013 L 269, p. 1) (‘the Customs Code’).

15 The first two of those cases gave rise to the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), by which the Court of Justice declared invalid Regulation No 1472/2006 (‘the first regulation declared invalid’) and Implementing Regulation No 1294/2009 (together, ‘Regulation No 1472/2006 and Implementing Regulation No 1294/2009’ or ‘the regulations declared invalid’), in so far as they infringed Article 2(7)(b) and Article 9(5) of Regulation No 384/96, as amended by Regulation No 461/2004 (now Article 2(7)(b) and Article 9(5) of the basic regulation).

16 More specifically, the Court of Justice held that the regulations declared invalid had been adopted without the Council and Commission having first examined the MET claims and the individual treatment (‘IT’) claims submitted by the Chinese and Vietnamese exporting producers not sampled in the context of the investigation which had led to the adoption of those regulations (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 112 and 135).

17 In the light of that judgment, the Rechtbank Noord-Holland (District Court, Noord-Holland) informed the Court of Justice that it did not intend to maintain its request for a preliminary ruling in the third case, which was consequently removed from the register of the Court of Justice (order of 11 April 2016, Timberland Europe, C‑571/14, not published, EU:C:2016:274, paragraphs 2 and 3).

Implementation of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14)

18 Following the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Commission adopted Implementing Regulation (EU) 2016/223 of 17 February 2016 establishing a procedure for assessing certain [MET] and [IT] claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 41, p. 3).

19 It is apparent from recital 16 of Implementing Regulation 2016/223 that the Commission decided to resume the anti-dumping proceeding at the point at which the illegality identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), had occurred and to examine whether market economy conditions prevailed for the exporting producers concerned for the period from 1 April 2004 to 31 March 2005. In accordance with recital 17 of that regulation, the Commission intended to assess, for imports of Clark and of Puma, all MET and IT claims submitted. Furthermore, as stated in recital 18 of that regulation, it decided to order the national customs authorities ‘[provisionally] not to reimburse [the anti-dumping duties collected]’. By contrast, for imports of other importers that did not have standing themselves to bring an action for annulment, and which hence could rely on the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), in their applications for reimbursement of anti-dumping duties pursuant to Article 236 of the Customs Code, the Commission, for the sake of efficient use of resources, decided to only assess MET and IT claims of those exporting producers which were concerned by reimbursement claims that had been filed with national customs authorities in due time and form (recital 19 of Implementing Regulation 2016/223).

20 Article 1 of Implementing Regulation 2016/223 reads as follows:

‘1. National customs authorities, which have received a request for re-imbursement, based on Article 236 of the … Customs Code, of anti-dumping duties imposed by [the regulations declared invalid] and collected by national customs authorities, which is based on the fact that a non-sampled exporting producer had requested MET or IT, shall forward that request and any supporting documents to the Commission.

2. Within eight months of the receipt of the request and any supporting documents, the Commission shall verify whether the exporting producer had indeed lodged an MET and IT claim. If so, the Commission shall assess that claim and re-impose the appropriate duty by means of a Commission Implementing Regulation, after disclosure …

3. The national customs authorities shall await the publication of the relevant Commission Implementing Regulation re-imposing the duties before deciding on the claim for repayment and remission of anti-dumping duties.’

21 In proceedings relating to a claim for repayment of anti-dumping duties paid, brought before the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany), that court, by decision of 20 April 2016, referred a question to the Court of Justice for a preliminary ruling under point (b) of the first paragraph of Article 267 TFEU, calling into question the validity of Implementing Regulation 2016/223. In its judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the Court of Justice reached the conclusion that consideration of that question had not revealed any factor capable of affecting the validity of that regulation.

The contested regulations

22 On 18 August 2016, the Commission adopted Implementing Regulation (EU) 2016/1395 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 225, p. 52; ‘the first contested regulation’).

23 That regulation reimposed, in accordance with Article 1(1) and (3) thereof, a definitive anti-dumping duty at a rate of 16.5% on imports of the products at issue manufactured by 13 Chinese exporting producers during the period of application of the regulations declared invalid.

24 On 13 September 2016, the Commission adopted Implementing Regulation (EU) 2016/1647 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 245, p. 16; ‘the second contested regulation’).

25 That regulation reimposed, in accordance with Article 1(1) and (3) thereof, a definitive anti-dumping duty at a rate of 10% for imports of the products at issue manufactured by 14 Vietnamese exporting producers during the period of application of the regulations declared invalid.

26 On 28 September 2016, the Commission adopted Implementing Regulation (EU) 2016/1731 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam and produced by General Footwear Ltd (China), Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 262, p. 4; ‘the third contested regulation’).

27 That regulation reimposed, in accordance with Article 1(1) and (3) thereof, a definitive anti-dumping duty at a rate of 16.5% and 10%, respectively, for imports of the products at issue manufactured by one Chinese and two Vietnamese exporting producers during the period of application of the regulations declared invalid.

The facts subsequent to the initiation of the action

28 In proceedings relating to a claim for the repayment of anti-dumping duties paid, brought before the First-tier Tribunal (Tax Chamber), that tribunal, by decision of 14 November 2016, referred a question to the Court of Justice for a preliminary ruling under point (b) of the first paragraph of Article 267 TFEU, calling into question the validity of the first and second contested regulations. In its judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), the Court of Justice reached the conclusion that examination of that question had revealed nothing capable of affecting the validity of those regulations.

Procedure and forms of order sought

29 By application lodged at the Court Registry on 9 November 2016, the applicants brought the present action.

30 By document lodged at the Court Registry on 28 November 2016, the Commission requested, pursuant to Article 68 of the Rules of Procedure of the General Court, that the present case be joined with Case T‑782/16, Timberland Europe v Commission. The applicants lodged observations on that application within the prescribed period.

31 On 2 February 2017, the General Court decided, first, to reserve the decision on the application for joinder and, second, to invite the parties to lodge their observations on a possible stay of the proceedings, in accordance with Article 69(a) of the Rules of Procedure, pending the decisions of the Court of Justice closing the proceedings in Cases C‑256/16, Deichmann, C‑612/16, C & J Clark International, and C‑631/16, X.  The applicants lodged their observations within the prescribed period. The Commission did not lodge any observations.

32 By decision of the President of the Third Chamber of the General Court (former composition) of 14 March 2017, the proceedings were stayed pending the decisions of the Court of Justice closing the proceedings in Cases C‑256/16, Deichmann, C‑612/16, C & J Clark International, and C‑631/16, X.

33 Following the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the order of 17 April 2018, X (C‑631/16, not published, EU:C:2018:312), and the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), the proceedings in the present case were resumed on 19 June 2019.

34 On 11 July 2019, the General Court, by way of measures of organisation of procedure pursuant to Article 89(3) of the Rules of Procedure, invited the parties to comment on the potential impact of the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), on the action in the present case. The parties lodged their observations within the prescribed period.

35 By document lodged at the General Court Registry on 31 July 2019, the parties asked the General Court to designate the present case as a ‘test case’ and, in accordance with Article 69(c) of the Rules of Procedure, to stay Cases T‑782/16, Timberland Europe v Commission, T‑351/17, Nike European Operations Netherlands and Others v Commission, T‑24/18, adidas International Trading and Others v Commission, and T‑130/18, adidas International Trading and Others v Commission, pending the decision closing the proceedings in the present case.

36 By decision of the President of the Third Chamber of the General Court (former composition) of 19 August 2019, those cases were stayed pending the decision closing the proceedings in the present case.

37 Following a change in the composition of the Chambers of the General Court on 4 October 2019, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Third Chamber (new composition), to which the present case was consequently allocated.

38 Acting on a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral part of the procedure.

39 As the hearing, which was initially scheduled for 2 October 2020, was adjourned, on 9 October 2020, the General Court, by way of measures of organisation of procedure pursuant to Article 89(3)(a) of the Rules of Procedure, asked the applicants whether, in the light of the health situation associated with the COVID-19 pandemic, they still wished to state their case at a hearing. The applicants lodged their observations within the prescribed period and stated that they wished to maintain their request for a hearing.

40 The parties presented oral argument and replied to the oral questions put by the General Court at the hearing on 20 November 2020.

41 The applicants claim that the General Court should:

– annul the first, second and third contested regulations (together, ‘the contested regulations’);

– order the Commission to pay the costs.

42 The Commission contends that the General Court should:

– dismiss the action;

– order the applicants to pay the costs.

Law

Admissibility

43 The applicants submit that they have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU since they are directly and individually concerned by the contested regulations. The Commission disputes that assessment, taking the view that the action is admissible under the third limb of the fourth paragraph of Article 263 TFEU.

44 In that regard, it should be recalled that, in accordance with settled case-law, the conditions governing admissibility of an action laid down in the fourth paragraph of Article 263 TFEU concern an absolute bar to proceeding and are therefore for the General Court to consider of its own motion (see, to that effect, judgment of 16 May 2019, Pebagua v Commission, C‑204/18 P, not published, EU:C:2019:425, paragraph 28 and the case-law cited).

45 Under the second limb of the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act which is of direct and individual concern to them.

46 In the first place, as regards direct concern, it must be recalled that that condition requires that the measure in question must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from the rule in question, without the application of other intermediate rules (see, to that effect, judgments of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraph 43, and of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45; and order of 9 July 2013, Regione Puglia v Commission, C‑586/11 P, not published, EU:C:2013:459, paragraph 31).

47 In the present case, first, the contested regulations directly affect the applicants’ legal situation since they determine the anti-dumping duty which the applicants must pay in their capacity as importers. Second, those regulations oblige the Member States, in particular their customs authorities, to levy that duty without leaving them any discretion. Therefore, the applicants are directly concerned by the contested regulations (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 26 and the case-law cited).

48 In the second place, with regard to the requirement of individual concern to the applicants, it should be recalled that, while it is true that regulations imposing anti-dumping duties are of general application in that they apply to all the traders concerned, it is nonetheless not inconceivable that some of the provisions of those regulations may be of individual concern to certain traders (see judgments of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 25 and the case-law cited, and of 3 May 2018, Distillerie Bonollo and Others v Council, T‑431/12, EU:T:2018:251, paragraph 75 and the case-law cited).

49 It follows that measures imposing anti-dumping duties may, without losing their character as measures of general application, be of individual concern in certain circumstances to certain traders which therefore have standing to bring an action for their annulment (see, to that effect, judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 14).

50 In accordance with the case-law, that may be the case for an independent importer who has established the existence of a set of factors constituting a situation peculiar to that importer, distinguishing it, as regards the measure in question, from all other traders (see, to that effect, judgments of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17; of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 50; and of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 28).

51 In that context, it is important to recall that, where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the measure alters rights acquired by the individual prior to its adoption (see, to that effect, judgments of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59, and of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 36).

52 In the present case, the contested regulations were adopted for the purpose of implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). By that judgment, the Court of Justice declared invalid Regulation No 1472/2006 and Implementing Regulation No 1294/2009 after they were challenged by Puma, Clark and Timberland before the respective national courts (see paragraphs 13 to 17 above).

53 Thus, the Commission decided to resume the anti-dumping proceeding at the point at which it considered that the illegality had occurred and to examine whether it was appropriate to grant the MET and IT claims that had been submitted during the original investigation by the non-sampled exporting producers (see paragraph 19 above).

54 It is apparent, in particular, from recitals 18, 19 and 29 of the first contested regulation, recitals 19, 20 and 28 of the second contested regulation, and recitals 20 to 22 of the third contested regulation that, for the purpose of reimposing anti-dumping duties by means of the contested regulations, the Commission took into account only the MET and IT claims submitted, during the original investigation, by the non-sampled Chinese and Vietnamese exporting producers whose products at issue had been imported by Puma, Clark and Timberland. In other words, the contested regulations did not concern any Chinese or Vietnamese exporting producer which was not a supplier of Puma, Clark or Timberland.

55 This is confirmed by recital 18 of the third contested regulation, which states that, ‘by [the first contested regulation], the Commission reimposed a definitive anti-dumping duty … on imports of Clark and Puma of certain footwear with uppers of leather originating in [China] and produced by thirteen Chinese exporting producers’ (see also recital 18 of the second contested regulation). Likewise, recital 19 of the third contested regulation states that, ‘by [the second contested regulation], the Commission reimposed a definitive anti-dumping duty … on imports of Clark, Puma and Timberland of certain footwear with uppers of leather originating in Vietnam and produced by certain Vietnamese exporting producers’. Since the Commission identified, following the adoption of the first and second contested regulations, two additional suppliers of Puma established in Vietnam and a Chinese supplier of Timberland who had submitted MET and IT claims during the original investigation, it adopted the third contested regulation (recitals 20 and 21 of the third contested regulation).

56 By contrast, for imports of the products at issue from Chinese and Vietnamese exporting producers which were not suppliers of Puma, Clark or Timberland, the Commission reimposed the anti-dumping duties by separate implementing regulations and, for the sake of efficient use of resources, only if the importers concerned had filed reimbursement claims with the national customs authorities (see paragraph 19 above).

57 It follows, first, that the challenges of Puma, Clark and Timberland before the national courts and the subsequent declaration of invalidity of Regulation No 1472/2006 and of Implementing Regulation No 1294/2009 by the judgment of 4 February 2016, C& J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), were the prerequisite for the Commission’s action leading to the adoption of the contested regulations. Second, it is common ground that, for the reimposition of the anti-dumping duties by means of those contested regulations, the Commission took into account only the imports of Puma, Clark and Timberland during the initial period of application of the regulations declared invalid, which had already expired, and, on the basis of those imports, identified the exporting producers whose exports were subject to those duties. Thus, in the light of those circumstances, Puma belongs to a limited class of importers affected by the contested regulations and identified or identifiable at the time when those regulations were adopted, which could no longer be extended, and can be distinguished from any other importer concerned by those regulations.

58 Furthermore, it is apparent from recital 25 of the first and second contested regulations and from recital 27 of the third contested regulation that the purpose of the determination of the MET or IT status of the exporting producers concerned by those regulations was to ascertain the extent to which Clark, Puma and Timberland were entitled to be reimbursed the anti-dumping duties that they had paid on exports of those exporting producers.

59 Therefore, by adopting the contested regulations, the Commission implicitly decided on the action to be taken in respect of the reimbursement claims submitted by Clark, Puma and Timberland to the national customs authorities.

60 Therefore, for the reasons set out above and having regard to the particular features of the reimposition of anti-dumping duties in the present case, it must be concluded that Puma is directly and individually concerned by the contested regulations.

61 As regards the other applicants, it must be noted that they have special standing compared to any other trader because they form part of the same corporate group as Puma. Furthermore, it has been held previously that when the action of one of the applicants was admissible and the same application was involved there was no need to consider whether the other applicants had standing to bring proceedings (see, to that effect, judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, not published, EU:T:2014:1076, paragraph 33 and the case-law cited).

62 Consequently, the action must be declared admissible, without there being any need to examine whether the contested regulations constitute regulatory acts not entailing implementing measures.

Substance

63 In support of their action, the applicants rely on five pleas in law. By their first plea, they assert that the Commission lacked competence to adopt the contested regulations. By their second plea, they submit that those regulations fail to state their precise legal basis, which results in an infringement of Article 296 TFEU, their rights of defence and their rights to effective judicial protection. In their third plea, the applicants claim that those regulations lack any legal basis, that their adoption infringes the general principles of legal certainty, the protection of legitimate expectations, non-retroactivity and proportionality, and that that adoption constitutes a misuse of powers. By their fourth plea, they argue that those regulations infringe the principle of non-discrimination. By their fifth plea, the applicants allege that the Commission carried out a discriminatory assessment of the MET and IT claims and misused its powers.

The first plea in law, alleging that the Commission lacked competence to adopt the contested regulations

64 By the first plea, the applicants submit that the Commission had no legal basis to adopt the contested regulations as that power lay with the Council. In their view, the rules to be followed and the competent institution were governed by Regulation No 384/96, as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17). According to the applicants, the amendments to the decision-making procedure made by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1), transferring the power to adopt definitive anti-dumping measures to the Commission, are not applicable in the present case in view of the transitional rules laid down in Article 3 of that regulation, providing for the application of the old decision-making procedures to anti-dumping proceedings initiated prior to the entry into force of that regulation. Nor, in their view, does Article 266 TFEU empower the Commission to adopt measures to remedy the act of another institution that has been declared invalid. In addition, the applicants submit that the contested regulations are vitiated by a misuse of powers since they have the impression that the Commission adopted them to avoid them being rejected by the Council.

65 The Commission disputes the applicants’ arguments.

66 It should be recalled that, as the Court of Justice held in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 52), pursuant to the principle that European Union acts must be adopted in accordance with the procedural rules in force at the time of their adoption, even in a procedure that was initiated before that date, but is still pending after that date (see judgment of 21 September 2017, Riva Fire v Commission, C‑89/15 P, EU:C:2017:713, paragraph 28 and the case-law cited), proceedings initiated on the basis of Regulation No 384/96 could, as from its repeal by Regulation No 1225/2009, as amended by Regulation No 37/2014 and repealed by the basic regulation, no longer be pursued on that basis (see also Article 23 of Regulation No 1225/2009 and Article 24 of the basic regulation).

67 Since the basic regulation, in accordance with Article 25 thereof, entered into force on 20 July 2016, and the contested regulations were adopted on 18 August, 13 September and 28 September 2016 respectively, those regulations were therefore rightly based on the basic regulation, in particular Articles 9 and 14 thereof, as set out in their respective second citations.

68 In that regard, it should be recalled that, according to Article 9(4) of the basic regulation, where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention, a definitive anti-dumping duty is to be imposed by the Commission. In accordance with Article 14(1) of that regulation, anti-dumping duties are to be imposed by regulation. As the Court of Justice held in the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 42), those two provisions, read together, therefore empower the Commission to impose anti-dumping duties by regulation.

69 According to the Court of Justice, Article 9(4) and Article 14(1) of the basic regulation also empower the Commission to reimpose anti-dumping duties following the delivery of a judgment annulling an act or declaring it to be invalid, after the Commission has resumed the proceedings that gave rise to the regulations annulled or declared invalid by the Courts of the European Union and has thereby, in accordance with the procedural and substantive rules applicable ratione temporis, remedied the illegalities identified (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 43).

70 It follows that, since they refer to Articles 9 and 14 of the basic regulation, the contested regulations have a legal basis that empowers the Commission to reimpose the anti-dumping duties imposed by the regulations declared invalid (judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 44).

71 Therefore, in the light of the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), which concerned the first and second contested regulations and the content of which can be transposed to the third contested regulation in that the third contested regulation follows a similar approach with regard to three additional exporting producers, the applicants’ argument that the Commission was not competent to adopt the contested regulations, pursuant to the transitional rules laid down in Article 3 of Regulation No 37/2014, is irrelevant in the present case. Likewise, the fact that the obligation to act under Article 266 TFEU does not constitute a source of competence nor an appropriate legal basis for the adoption of the contested regulations (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 39 and 40) is irrelevant, since those regulations have a legal basis empowering the Commission to adopt them. Moreover, since the adoption of the contested regulations, pursuant to Articles 9 and 14 of the basic regulation, was a matter for the Commission and not for the Council, the applicants’ argument that the Commission misused its powers in order to avoid a rejection on the part of the Council is unfounded.

72 Consequently, the first plea in law must be rejected.

Second plea in law, alleging failure to state the precise legal basis

73 By the second plea in law, the applicants claim that, while the preamble to the contested regulations refers to Article 266 TFEU, on the one hand, and to Articles 9 and 14 of the basic regulation, on the other, those regulations do not provide the precise legal basis for the imposition of the anti-dumping measures at issue, which results in an infringement of Article 296 TFEU, their rights of defence and their rights to effective judicial protection.   

74 The Commission disputes the applicants’ arguments.

75 As a preliminary point, it should be noted that the respective first citations of the contested regulations refer to Article 266 TFEU, whereas their respective second citations refer to Articles 9 and 14 of the basic regulation (see paragraph 67 above).

76 As regards the reference to Article 266 TFEU, it must be noted that that provision relates to measures for the implementation of a judgment of the Courts of the European Union and does not constitute, as the Court of Justice has held, an appropriate legal basis for the adoption of the contested regulations (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 37 to 40). Therefore, the express reference to that article merely indicates that the Commission is implementing, by those regulations, a judgment of annulment or invalidity, namely, in the present case, that of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

77 By contrast, where the contested regulations refer to Articles 9 and 14 of the basic regulation, they provide a sufficient indication of their legal basis (see paragraphs 66 to 70 above and judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 44). Even though those regulations do not refer to the precise provisions of those articles, the fact remains that, first, in that judgment, the Court of Justice classified them as suitable legal bases for the adoption of the first and second contested regulations and, second, as the Commission rightly submits, the relevant provisions for that purpose are necessarily clear from the content and context of Articles 9 and 14 of the basic regulation. Thus, the present case is not comparable to a case where the contested act makes no reference to a provision of primary or secondary law conferring the necessary competence on the Commission and leaves the parties concerned uncertain as to the specific legal basis of that act (see, to that effect, judgments of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraphs 47 and 48, and of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraphs 54 to 56).

78 In any event, it must be recalled that an indication of the legal basis is essential in particular in the light of the obligation to state reasons that stems from the second paragraph of Article 296 TFEU, which seeks to ensure, first, that the Courts of the European Union are able to exercise their power of judicial review, and second, that the parties concerned may know the conditions under which the EU institutions have applied a provision of primary or secondary law (see, to that effect, judgments of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraphs 37 and 38; of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 52; and of 5 December 2017, Germany v Council, C‑600/14, EU:C:2017:935, paragraph 82).

79 In that regard, it should be noted that, as regards the first and second contested regulations, the Court of Justice was, as is apparent from the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), in a position to exercise its power of judicial review and the applicant was in a position to submit its complaints effectively. In view of the assessment set out in paragraphs 66 to 71 and 75 to 77 above, the same is true of the General Court and the applicants in the present case. The reference, in the respective second citations of the contested regulations, to Articles 9 and 14 of the basic regulation has enabled the applicants to know the legal basis of those regulations and to challenge them, in particular in the third plea in law (see paragraph 81 below).

80 Accordingly, by sufficiently indicating the legal basis on which it adopted the contested regulations, namely Articles 9 and 14 of the basic regulation, the Commission did not infringe its obligation to state reasons. As a result, the applicants’ unsubstantiated argument that their rights of defence and their rights to effective judicial protection were infringed must also be rejected. Consequently, the second plea in law must be rejected in its entirety.

Third plea in law, alleging lack of legal basis, infringement of the general principles of legal certainty, the protection of legitimate expectations, non-retroactivity and proportionality and misuse of powers

81 In the third plea in law, the applicants submit, in essence, that the contested regulations, first, lack legal basis; second, by retroactively imposing expired anti-dumping duties, are contrary to previous administrative practice and infringe the general principles of legal certainty, the protection of legitimate expectations, non-retroactivity and proportionality; third, are based on a misapplication of Article 266 TFEU; and, fourth, amount to a misuse of powers by the Commission because they were adopted to prevent repayment of the duty which was illegally imposed by the regulations declared invalid.   

82 The Commission disputes the applicants’ arguments.

–  The complaint alleging lack of legal basis

83 The applicants submit that neither Article 266 TFEU nor Articles 9 and 14 of the basic regulation confer competence on the Commission to adopt the contested regulations and that their legal basis is not apparent from those regulations.

84 As regards the legal basis, reference should be made to paragraphs 68 to 70 above, which state that Articles 9 and 14 of the basic regulation empowered the Commission to adopt the contested regulations and therefore constituted, contrary to the assertion of the applicants, sufficient legal basis. Likewise, in so far as the applicants are of the view that the legal basis is not apparent from those regulations, it should be recalled that that argument has already been rejected in the response to the second plea in law (see paragraphs 77 to 80 above).

85 In the light of the existence of that legal basis, it is irrelevant that the obligation to act under Article 266 TFEU does not constitute, in itself, a source of competence or an appropriate legal basis for the adoption of the contested regulations (see paragraph 71 above), so that the applicants’ argument to the contrary must be rejected.

–  The complaints alleging expiry of the anti-dumping measures and infringement of the principles of legal certainty and non-retroactivity

86 The applicants submit that the notice of expiry of the anti-dumping measures and, ultimately, the expiry of those measures, and the principles of legal certainty and non-retroactivity precluded the reopening of the proceeding and the retroactive imposition of the anti-dumping duties imposed by the regulations declared invalid.

87 It should be recalled that, in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 76), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 54), the Court of Justice approved the resumption of the procedure leading to the adoption of a regulation imposing an anti-dumping duty which had been annulled or declared invalid, with a view to reimposing anti-dumping duties that had expired, on the condition that the substantive rules in force at the time of the facts referred to in that regulation were applied.

88 In the present case, and as the Court of Justice has previously held, the contested regulations must, taking into account the period covered by the facts that were the subject of the regulations declared invalid, comply with the substantive rules of Regulation No 384/96 (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 55).

89 According to the Court of Justice, Article 10(1) of Regulation No 384/96 (now Article 10(1) of the basic regulation), which enshrines the general principles of legal certainty and non-retroactivity in the area of anti-dumping measures (see, to that effect, Opinion of Advocate General Campos Sánchez-Bordona in Deichmann, C‑256/16, EU:C:2017:580, point 103), precludes the reimposition of the anti-dumping duties for the products at issue released for free circulation prior to the date on which the regulations declared invalid entered into force (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 77).

90 However, Article 10(1) of Regulation No 384/96 does not preclude such a resumption of the proceeding in a case in which the anti-dumping duties concerned have expired, provided that such duties are reimposed during their initial application period (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 78).

91 Therefore, Article 10(1) of Regulation No 384/96 does not preclude acts such as the contested regulations from reimposing anti-dumping duties on imports that were made during the period of application of the regulations declared invalid (judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 57). Similarly, the notice of expiry, which, as the Commission rightly submits, marks the end of that period, does not prevent the reimposition of anti-dumping duties by the contested regulations.

92 More specifically, as noted in point 105 of the Opinion of Advocate General Campos Sánchez-Bordona in Deichmann (C‑256/16, EU:C:2017:580), retroactivity would involve the application of a subsequent provision to an already established legal situation. However, as the Advocate General stated, that is not the case here, since, first, the provisions applicable are precisely those that were in force at the time when the facts occurred and, second, the question of determining the rate to be imposed, depending on the status of the exporter having claimed MET or IT, remained open.

93 Since the contested regulations do not apply retroactively to a situation which has become definitive before their entry into force, the principle of legal certainty cannot be infringed either (see, to that effect, judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraphs 155 and 159).

94 The Commission was therefore entitled to take the view that, following the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the onus was on it to determine the rate of charge on the basis of MET or IT claims, namely to examine whether those rates should have been lower than those laid down by the regulations declared invalid (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 68, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 49).

95 Furthermore, in the light of the fact that the illegality identified by the Court of Justice in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), concerned only the examination of MET or IT claims (see paragraph 16 above), that judgment does not affect the other conclusions of the anti-dumping proceeding concerning the products at issue, namely those relating to dumping, injury, the causal link and the European Union interest (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 67, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 80).

96 Thus, in the present case, the Commission could limit itself to reassessing the applicable anti-dumping duty rate by examining whether the exporting producers concerned operated under market economy conditions or qualified for IT (see recital 30 of the first contested regulation, recital 29 of the second contested regulation and recital 31 of the third contested regulation).

97 Even though, to that end, the Commission had first, by means of Implementing Regulation 2016/223, suspended the repayment of the anti-dumping duties imposed by the regulations declared invalid immediately after the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Court of Justice upheld that approach in its judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraphs 69 to 71).

98 Accordingly, and by analogy with the ruling of the Court of Justice in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 79), neither the notice of expiry nor the principles of legal certainty and non-retroactivity precluded the resumption of the anti-dumping proceeding concerning the products at issue following the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74); nor did they preclude the adoption of the contested regulations.

99 In any event, even assuming that the contested regulations apply retroactively, this would, exceptionally, be justified in the light of the case-law (see, to that effect, judgment of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraph 156 and the case-law cited), in view of the fact that, as stated below, first, the principle of the protection of legitimate expectations was duly complied with (see paragraphs 101 to 104 below), and second, the implementation of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), required their adoption (see paragraphs 107 to 113 below).

100 Consequently, the complaints alleging expiry of the anti-dumping measures and infringement of the principles of legal certainty and non-retroactivity must be rejected as unfounded.

–  The complaints alleging infringement of the principle of the protection of legitimate expectations and of the Commission’s previous practice

101 According to the applicants, the expiry notice and the previous administrative practice of the institutions, from which it is apparent that no anti-dumping procedure was reopened retroactively and no anti-dumping measures which had expired were imposed retroactively in order to comply with judgments of the Courts of the European Union, created a legitimate expectation that an anti-dumping duty could no longer be imposed after the closing of the procedure relating to the products at issue. The applicants state that, in addition, the European Union confirmed before the World Trade Organisation (WTO) that the expiry of those measures prevented the retroactive imposition of anti-dumping duties.

102 In accordance with the Court of Justice’s settled case-law, the right to rely on the principle of the protection of legitimate expectation presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 97 and the case-law cited).

103 In the present case, since the illegality identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), concerns only the treatment of MET and IT claims, it cannot give rise to a legitimate expectation that the imports which took place during the period of application of the regulations declared invalid would no longer be subject to reimposed anti-dumping duties (see paragraphs 92 and 95 above). On the contrary, that judgment presupposed that the Commission would examine the MET and IT claims concerning the imports of Clark and Puma and then decide on the rate of the applicable duty (see paragraph 94 above).

104 Furthermore, the notice of expiry relied on by the applicants marked only the end of the period of application of the regulations declared invalid (see paragraph 91 above), so that it cannot, as the Commission rightly asserts, give rise to a legitimate expectation protecting the applicants from the imposition of anti-dumping duties during that period, but only for the period after the expiry of those regulations, namely the period after 31 March 2011. The same is true of the statements allegedly made by the European Union before the WTO concerning the expiry of those measures.

105 As regards the alleged previous administrative practice, it is important to note that the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of legal rules, in particular the provisions of the basic regulation, not on the basis of alleged previous practice in taking decisions (see, to that effect, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107). Furthermore, it is settled case-law that, where the institutions enjoy, as they do in the area of anti-dumping measures, a margin of discretion in the choice of the means needed to achieve their policies, traders are unable to claim that they have a legitimate expectation that the means initially chosen will continue to be employed, since those means may be altered by the institutions in the exercise of their discretionary power (see, to that effect, judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 120; of 4 March 2010, Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council, T‑407/06 and T‑408/06, EU:T:2010:68, paragraph 102 and the case-law cited; and of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 120 and the case-law cited).

106 Therefore, the principle of the protection of legitimate expectation and the previous practice did not preclude the Commission from adopting the contested regulations in order to reimpose the appropriate rate of anti-dumping duty. Accordingly, the complaints put forward by the applicants in that regard must be rejected as unfounded.

–  The complaint alleging misapplication of Article 266 TFEU

107 The applicants submit that, since the measures relating to the products at issue had expired and Article 266 TFEU is designed to correct continuing and future illegalities, that article did not require that anti-dumping duties be reimposed following the invalidation by the Court of Justice of Regulation No 1472/2006 and Implementing Regulation No 1294/2009.

108 It should be recalled that Article 266 TFEU provides, in particular in its first paragraph, that the European Union institution, body, office or entity whose act has been declared void by the Court of Justice or the General Court is required to take the necessary measures to comply with the judgment of that court.

109 That obligation to act applies, by analogy, in a situation where a judgment of the Court of Justice has declared an EU act to be invalid, since the legal effect of that judgment is to require the competent institution, body, office or entity to take the necessary measures to remedy the illegality identified by the Court of Justice (see judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 38 and the case-law cited).

110 In the present case, since the illegality identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), concerned only the treatment of MET and IT claims (see paragraphs 92 and 95 above), the Commission was entitled to implement that judgment by examining the claims submitted by the exporting producers concerned and by fixing, by means of the contested regulations, the rate of the anti-dumping duty applicable to their exports of the products at issue (see paragraph 94 above).

111 Thus, the Court of Justice held, in the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 51), that the first and second contested regulations were not invalid on the ground that they infringed Article 266 TFEU by failing to take the necessary measures to comply with the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

112 The applicants have not put forward any argument capable of invalidating that assessment, in particular as regards the compliance of the third contested regulation with Article 266 TFEU.

113 Therefore, as the Court of Justice has ruled, the Commission was entitled to reimpose the anti-dumping duties imposed by the regulations declared invalid and to suspend, until the adoption of replacement acts, such as the contested regulations, repayment of those duties by means of Implementing Regulation 2016/223 (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 43 and 48).

114 Accordingly, the complaint alleging misapplication of Article 266 TFEU must be rejected as unfounded.

–  The complaint alleging infringement of the principle of proportionality

115 The applicants consider that the reopening of the proceeding relating to the products at issue and the retroactive imposition of anti-dumping duties imposed by the regulations declared invalid are disproportionate.

116 In accordance with the case-law, while a legal consequence of a finding that an act of the European Union is invalid is that the institution that adopted the act must take the necessary measures to remedy the illegality established – the obligation set out in Article 266 TFEU in the event of annulment being applicable by analogy – that institution does nevertheless have a wide discretion in its choice of measures, it being understood that such measures must be compatible with the operative part of the judgment in question and the grounds that constitute its essential basis (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87 and the case-law cited).

117 Taking into account that wide discretion, only the manifestly inappropriate nature of those measures, having regard to the objective pursued, may affect their lawfulness (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 88).

118 In the present case, it is sufficient to note that, in the light of the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), which confirmed the legality of the Commission’s approach of reimposing the anti-dumping duties imposed by the regulations declared invalid, the applicants have failed to specify the reasons why they took the view that the contested regulations should be classified as manifestly inappropriate.

119 Accordingly, the complaint alleging infringement of the principle of proportionality must be rejected as unfounded.

–  The complaint alleging misuse of powers

120 The applicants are of the view, without further substantiating that complaint, that the contested regulations were adopted to prevent the illegal anti-dumping duty relating to the products at issue from being repaid to them.

121 It should be recalled that, in accordance with settled case-law, an act is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the treaties for dealing with the circumstances of the case (see judgments of 15 May 2008, Spain v Council, C‑442/04, EU:C:2008:276, paragraph 49 and the case-law cited; of 20 September 2017, Tilly-Sabco v Commission, C‑183/16 P, EU:C:2017:704, paragraph 64 and the case-law cited; and of 11 July 2019, IPPT PAN v Commission and REA, T‑805/16, not published, EU:T:2019:496, paragraph 234 and the case-law cited).

122 In the present case, having regard to the nature of the illegality identified by the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), it must be noted that the Commission was authorised to implement that judgment by examining the claims submitted by the exporting producers concerned and by fixing, by means of the contested regulations, the rate of anti-dumping duty applicable to their exports of the products at issue (see paragraph 110 above).

123 Therefore, the applicants are wrong to claim that the contested regulations were adopted for a purpose other than that of implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). Accordingly, the complaint alleging misuse of powers must be rejected as unfounded.

124 In the light of the foregoing considerations, the third plea in law must be rejected as unfounded in its entirety.

The fourth plea in law, alleging infringement of the principle of non-discrimination

125 By the fourth plea, the applicants submit that, in so far as they do not provide for the repayment of the anti-dumping duties collected, the contested regulations discriminate against them as compared to importers of products originating from the five Chinese exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710) which, along with other EU importers over the last decades, have been reimbursed anti-dumping duties. According to the applicants, their suppliers are subject to similar discrimination in relation to those five exporting producers.

126 The Commission disputes the applicants’ arguments.

127 In the first place, as regards the complaint alleging discrimination against the applicants in relation to EU importers which imported the products at issue from the five Chinese exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), it must be recalled that, in accordance with case-law, compliance with the principles of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 20 March 2019, Foshan Lihua Ceramic v Commission, T‑310/16, EU:T:2019:170, paragraph 80 and the case-law cited).

128 Furthermore, the factors which distinguish different situations, and the question whether those situations are comparable, must be determined and assessed in the light of the subject matter of the provisions in question and of the aim pursued by them (see, to that effect, judgments of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 42 and the case-law cited, and of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 67 and the case-law cited).

129 It is in the light of those criteria that it is necessary to examine whether the situation of the applicants was comparable to that of the EU importers which had purchased the products at issue from the five exporting producers concerned.

130 In the present case, the contested regulations, which the applicants consider to be discriminatory, seek to correct the aspects of Regulation No 1472/2006 and Implementing Regulation No 1294/2009 which led, by the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), to the declaration of invalidity of those two regulations (recital 22 of the first and second contested regulations, and recital 24 of the third contested regulation).

131 Since those aspects relate only to the failure to examine MET or IT claims, the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), did not affect the other findings of the anti-dumping proceeding relating to the products at issue (see paragraphs 92 and 95 above).

132 The Commission was therefore entitled, after the reimbursement of the anti-dumping duties imposed by the regulations declared invalid had been suspended by Implementing Regulation 2016/223, to implement the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), by examining the claims submitted by the exporting producers concerned and by fixing, by means of the contested regulations, the rate of the anti-dumping duty applicable to their exports of the products at issue (see paragraph 110 above). As set out in paragraphs 98 and 106 above, the principles of non-retroactivity and the protection of legitimate expectation do not preclude such a reimposition of anti-dumping duties concerning the products at issue.

133 By contrast, following the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), the corresponding customs duties were reimbursed by the competent national authorities to importers which had purchased the products at issue from the five exporting producers concerned by those judgments (see recital 5 of Implementing Decision 2014/149 and recital 10 of Implementing Regulation 2016/223).

134 The Council therefore took the view that the operators could legitimately expect that, upon expiry of the three-year time limit laid down by Article 221(3) of the Customs Code, applicable pursuant to Article 1(4) of the first regulation declared invalid, any reimposition of the debt would be time-barred and that, consequently, the debt would be extinguished. In addition, it considered, referring to the judgments of 23 February 2006, Molenbergnatie (C‑201/04, EU:C:2006:136, paragraph 41), and of 28 January 2010, Direct Parcel Distribution Belgium (C‑264/08, EU:C:2010:43, paragraph 43), that a retroactive derogation from Article 221(3) of the Customs Code, as proposed by the Commission, was precluded as it would infringe the legitimate expectations of the operators concerned (see recital 5 of Implementing Decision 2014/149).

135 Thus, the Council decided to reject the Commission’s proposal to adopt an implementing regulation reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of the products at issue manufactured by the five exporting producers concerned, and terminated the proceedings against them (see Article 1 of Implementing Decision 2014/149; see also paragraph 12 above).

136 In view of those factual and legal differences, it must be found that, as the Commission submits, the applicants were not in a situation comparable to that of the importers which had purchased the products at issue from those five exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), even though, both in those judgments and in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), which concerns the applicants, the Court of Justice found an infringement of the obligation to first examine the MET claims (see paragraphs 11 and 16 above).

137 It is true that the absence of reimbursement following the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), is, as the applicants assert, attributable to an action of the Commission, namely the adoption by the Commission of Implementing Regulation 2016/223 (see paragraph 18 above).

138 Nevertheless, it is important to note that it is that regulation which precluded the immediate reimbursement of the anti-dumping duties imposed by the regulations declared invalid (see paragraphs 18 to 21 above) and not, as the applicants claim, the contested regulations, which merely remedied the illegality identified by the Court of Justice in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), by fixing the rate of the applicable anti-dumping duty depending on the MET or IT claims (see paragraph 110 above). Since the contested regulations do not govern the repayment of those duties, the claims for repayment and remission of duties fall within the competence of the national authorities and courts which, as is apparent from the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraphs 81 to 85), are required to make a final decision, applying the rules of the Customs Code, on the claims for repayment and to verify on a case-by-case basis whether such repayment must be granted.

139 It must be noted that Implementing Regulation 2016/223 does not form part of the subject matter of the dispute in the present case and, in any event, was upheld by the Court of Justice in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187).

140 Therefore, Implementing Regulation 2016/223 constitutes, as is apparent from point 109 of the Opinion of Advocate General Campos Sánchez-Bordona in Deichmann (C‑256/16, EU:C:2017:580), a relevant factor which gave rise to different factual and legal situations for the applicants and the importers concerned. Since those situations already existed when the contested regulations were adopted, the fact that those separate factual and legal situations were treated differently by those regulations does not constitute unequal treatment having regard to the case-law set out in paragraph 127 above.

141 Accordingly, the complaint alleging unequal treatment or discrimination against the applicants in relation to the EU importers which purchased the products at issue from the five Chinese exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), must be rejected as unfounded.

142 In the second place, as regards the complaint alleging discrimination between the applicants and EU importers which, over the last decades, obtained a reimbursement of anti-dumping duties following the annulment or invalidation of anti-dumping regulations, the applicants’ imprecise and unsubstantiated allegations do not allow for a finding that those importers were in a situation comparable to the one described in paragraphs 130 to 132 above.

143 Furthermore, in accordance with the case-law cited in paragraph 105 above, the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of legal rules, in particular the provisions of the basic regulation, not on the basis of the alleged previous practice of the Commission and of the Council in taking decisions.

144 Accordingly, the complaint alleging discrimination in relation to importers which are the subject of other anti-dumping investigations must be rejected as unfounded.

145 In the third place, as regards the complaint alleging discrimination against the applicants’ suppliers in relation to the five exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), it is sufficient to refer to the considerations set out in paragraphs 130 to 140 above, which apply to those suppliers mutatis mutandis.

146 Accordingly, this complaint must be rejected as unfounded, without it being necessary to assess its admissibility, which is disputed by the Commission.

147 It follows from the foregoing that the fourth plea in law must be rejected in its entirety.

The fifth plea in law, alleging infringement of the principle of non-discrimination and misuse of powers in the context of the assessment of the MET and IT claims

148 By the fifth plea, the applicants criticise the Commission on the ground that it rejected the MET and IT claims of the exporting producers concerned on the basis of a desk analysis, in particular without carrying out a verification at their premises. In their view, even on the assumption that such an analysis is appropriate, the Commission acted arbitrarily and infringed the rights of defence of those exporting producers inasmuch as it did not send them, contrary to its previous practice, letters requesting additional information. According to the applicants, that approach is discriminatory and constitutes a misuse of powers.

149 The Commission disputes the applicants’ arguments.

150 First, it must be recalled that, according to settled case-law, the institutions of the EU enjoy a broad discretion in the area of anti-dumping measures by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 29 and the case-law cited).

151 Next, it is important to note that, as is apparent from paragraphs 86 and 88 above, the Commission was, in the context of the resumption of the anti-dumping proceeding, including when examining the MET and IT claims submitted before it in order to determine the applicable rate of duty, required to comply with the substantive rules of Regulation No 384/96.

152 In that regard, it must be noted that, pursuant to Article 6(8) of Regulation No 384/96 (now Article 6(8) of the basic regulation), the Commission must examine, as far as possible, the information which is supplied by interested parties in the context of a claim for MET or IT for accuracy. Article 16(1) of Regulation No 384/96 (now Article 16(1) of the basic regulation) authorises the Commission to carry out a visit at the premises of an exporting producer in order to deal with its MET or IT claim and to satisfy itself as to the accuracy of the information supplied therein, if the Commission considers it necessary (see, to that effect, judgment of 25 October 2011, Transnational Company “Kazchrome” and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraphs 294 and 295).

153 As has previously been held, it is for the Commission to assess whether a verification visit is appropriate. Thus, and contrary to the applicants’ assertion, although such a visit may be appropriate in one anti-dumping investigation, that does not mean that it will be also necessary in another investigation and that the Commission cannot, in that other investigation, confine itself to a desk analysis (see, to that effect, judgment of 25 October 2011, Transnational Company “Kazchrome” and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 298).

154 Furthermore, it follows from the case-law that the burden of proof lies with the exporting producer wishing to claim MET or IT on the basis of Article 2(7)(b) or Article 9(5), respectively, of Regulation No 384/96. Thus, the Commission is not required to prove that a given exporting producer does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the Commission to assess whether the evidence supplied by the exporting producer concerned is sufficient to show that the criteria laid down in those articles are fulfilled in order to grant it MET or IT and it is for the EU judicature to examine whether that assessment is vitiated by a manifest error (see, to that effect, judgment of 2 February 2012, Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 32).

155 In the light of the foregoing, in the present case, the Commission was not under any obligation to either carry out a verification at the premises of the exporting producers concerned or send them letters requesting additional information. Since the Commission evaluated the information submitted to it in the light of the criteria set out in Article 2(7)(c) and Article 9(5) of Regulation No 384/96, and as is apparent from recitals 32 to 37 and 44 to 50 of the first contested regulation, recitals 31 to 36 and 41 to 47 of the second contested regulation and recitals 33 to 38 and 43 to 48 of the third contested regulation, it fulfilled its obligations and acted within the limits of its broad discretion referred to in paragraph 150 above.

156 In particular, the Commission’s assessment set out in those recitals, according to which the exporting producers concerned were not able to demonstrate that they fulfilled those criteria, appears sufficiently plausible. Accordingly, those findings are not vitiated by a manifest error of assessment.

157 Furthermore, in the absence of different treatment of comparable situations (see paragraph 127 above), the complaint alleging an infringement of the principle of non-discrimination must be rejected as unfounded.

158 Likewise, the complaint alleging misuse of powers must be rejected as unfounded, since the applicants have not established, as is required by the case-law cited in paragraph 121 above, that the way in which the Commission conducted the proceeding was evidence that the proceeding had been initiated with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the treaties for dealing with the circumstances of the case.

159 That assessment cannot be called into question by the other arguments put forward by the applicants.

160 As regards the assertion that the Commission, when examining MET or IT claims over the course of recent years, had had recourse to a procedure requesting additional information and a verification of the premises of the exporting producers, it should be noted that, first, the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of legal rules, not on the basis of alleged previous practice in taking decisions (see paragraph 105 above). Second, in view of the fact that the applicants referred, in their written pleadings, only to the proceeding which led to the adoption of Council Regulation (EC) No 1212/2005 of 25 July 2005 imposing a definitive anti-dumping duty on imports of certain castings originating in the People’s Republic of China (OJ 2005 L 199, p. 1), that case alone cannot demonstrate an established decision-making practice. On the contrary, it even contradicts the applicants’ assertions concerning the need to carry out on-the-spot verifications in so far as, in that case, as is apparent from recital 35 of that regulation, on-the-spot investigations had been carried out only at the premises of a very small number of companies, in view of the large number of companies concerned.

161 The reference to the 2005 investigation relating to the products at issue, entailing also a procedure requesting additional information and an on-the-spot verification, cannot be accepted either. As is apparent from recital 61 of the first regulation declared invalid, the number of MET and IT claims was so large that the Commission, in the course of that investigation, had recourse to a representative sample. Therefore, contrary to what the applicants appear to suggest, the Commission examined only a limited number of those claims. That approach was criticised by the Court of Justice in so far as the Commission had not adjudicated, infringing Article 2(7)(b) and Article 9(5) of Regulation No 384/96, upon all MET and IT claims submitted, which led the Court to declare invalid Regulation No 1472/2006 and Implementing Regulation No 1294/2009 (judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 112, 135 and 177). In the light of those differences, the situation concerning the 2005 investigation is not comparable to that of the investigation in the present case. That is all the more so since, in the meantime, the case-law has supplied the clarifications set out in paragraphs 153 and 154 above.

162 As regards the assertion that the Commission infringed the rights of defence of the exporting producers by not sending them requests for additional information, it must be noted that, as the Commission rightly submits, the applicants cannot rely on an infringement of the rights of defence of the exporting producers which participated in the anti-dumping investigation procedure. As their line of argument does not relate to their own situation, its potential justification cannot lead to the annulment of the contested regulations as regards the applicants. Therefore, the applicants have no legal interest in raising that line of argument (see, to that effect, judgments of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 73; of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraphs 64 to 72; and of 11 September 2018, Foshan Lihua Ceramic v Commission, T‑654/16, EU:T:2018:525, paragraph 35).

163 For the same reasons, the closely related claim, which is, moreover, unsubstantiated, that the Commission did not satisfy itself as to whether the letters refusing MET or IT had been delivered to the applicants’ suppliers, should be rejected.

164 Accordingly, the fifth plea in law is also unfounded and must be rejected.

165 Consequently, the present action must be dismissed in its entirety.

Costs

166 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1. Dismisses the action.

2. Orders Puma SE and the other applicants whose names are set out in the annex to pay the costs.