 
  WORLD TRADE  
ORGANIZATION  G/ADP/AHG/W/158 
23 March 2004 
 
 (04-1291) 
Committee on Anti-Dumping Practices 
Working Group on Implementation Original:   English 
 
 
 
ARTICLE 13 – JUDICIAL, ARBITRAL OR ADMINISTRATIVE REVIEW 
 
Paper by the European Communities  
 
 
 The following communication, dated 18 March 2004, is being circulated at the request of the Delegation of the European Commission.  
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  Further to the agreement reached in th e Working Group on Implementation to examine 
additional topics for discussion, as noted in document G/ADP/W/433, the EC submits the following paper to explain how the EC system provides for judicial review procedures, in accordance with Article 13 of the Anti-dumping Agreement (ADA). This provision states: 
 
“Each Member whose national legisla tion contains provisions on anti-dumping 
measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of  determinations within the meaning of Article 11. Such 
tribunals or procedures shall be independe nt of the authorities responsible for the 
determination or review in question.”  
I. THE ORGANISATION OF JUDICIAL REVIEW WITHIN THE EC 
 In the EC, the anti-dumping instrument is sole ly administered by the EC authorities (Council 
and Commission) while the collection of anti-dumping duties is the task of national customs authorities. Acts emanating from the EC authoriti es cannot be directly challenged before national 
courts, but are only subject to review by the Court of  First Instance (CFI) or the Court of Justice (ECJ) 
of the EC (both in Luxembourg), depending on the case.   The right to judicial review in relation to an ti-dumping determinations is  not laid down in the 
EC’s basic Anti-Dumping Regulation
1, but follows directly from the provisions of the EC Treaty. 
 
 The CFI is competent to exercise jurisdicti on at first instance over the following actions 
brought by natural or legal persons:  
- action for the annulment of acts of the Commission and the Council, pursuant 
to Article 230 (4) EC,  
                                                     
 
1 Council Regulation (EC) No 384/96 of 22 Decem ber 1995 on protection against dumped imports 
from countries not members of the European Community, Official Journal L 56, 6.3.1996, p. 1. as last amended 
by Regulation (EC) No 1972/2002 (OJ L 305, 7.11.2002, p. 1). G/ADP/AHG/W/158 
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 - action for failure to act pursuant to Article 232 (3) EC, 
- action for damages pursuant to Article 235 EC. 
 The action for annulment is by far the most important. As the other types of actions occur 
only rarely, they will not be further commented.  
 Note for the sake of completeness that actions for annulment brought by Member States, by 
the Council or by the Commission, pursuant to Artic le 230 (2) EC, fall within the jurisdiction of the 
ECJ. However, this issue has had no practi cal relevance in the Community practice. 
  All judgments of the CFI can be appealed on a point of law before the ECJ. 
 
II. LOCUS STANDI 
 In accordance with Article 230 (2) EC, th e EU Member States, the Council or the 
Commission can bring an action for annulment agai nst measures in the anti-dumping field, without 
having to fulfil specific locus standi conditions. 
 
 All other applicants have locus standi pursuan t to Article 230 (4) EC, if the contested measure 
is in substance a decision, which is of direct and individual concern to the applicant. Whether this is 
the case will depend in particular on the nature of the act in question (notice of initiation, decision 
accepting undertakings, regulation imposing provisional or definitive measures, etc.) and of the 
applicant (complainant, exporter, impor ter, consumer association, etc.). 
  
 Third countries are also entitled to challenge  anti-dumping measures when they meet the 
requirements of direct and individual concern.   In following the main situations that can occur are briefly described. 
 
1. Initiations 
 The Courts have held that the initiation of an anti-dumping proceeding is only a preparatory 
act and therefore in principle not reviewable. A pplicants can, however, invoke the illegality of an 
initiation as a ground for the annulment of any measures ultimately adopted.
2 
 
 Conversely, in cases where a complaint is rejected , there are no further definitive steps in the 
proceeding which complainants could challenge. Th erefore, the refusal to initiate an anti-dumping 
proceeding is a reviewable act.3 
 
2. Regulations imposing anti-dumping measures 
 Regulations imposing anti-dumping duties can be challenged by all parties to whom they are 
of direct and individual concern.     This is generally the case for those producer s and exporters that participated in the 
investigation and are identified in the regulation. 
                                                     
 
2 Judgment of the CFI, Case T-134/95, Dysan Magnetics Ltd. and Review Magnetics (Macao) Ltd. v. 
Commission  [1996] ECR II-181. 
3 Judgment of the ECJ, Case 191/82, EEC Seed Crushers’ and Oil Processors’ Federation (Fediol) v. 
Commission  [1983] ECR 2913.  G/ADP/AHG/W/158 
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 According to the case-law, importers may fulf il the requirements of direct and individual 
concern if their participation in the investigation has directly affected the level of the measures 
imposed (this may be the case e.g. for importers which are related to exporters or have a compensatory agreement with them), or if they have  certain attributes, particular to them and which 
differentiate them from all other persons. The precise scope of this  latter group of importers cannot 
easily be defined, as the particular features which confer standing in this context obviously depend 
very much on the specific circumstances of the case.
4 
  Complainants, which are not satisfied with th e outcome of a proceeding, may also meet the 
conditions of direct and individual concern, in pa rticular if the contested regulation was to a large 
extent based on their contribution.   Users and consumers only have locus st andi under very strict conditions.
5 
 3. Termination without measures 
 Complainant Community producers enjoy lo cus standi against a Commission decision 
terminating an anti-dumping proceeding without the imposition of measures. Such a decision does not, however, adversely affect the legal position of  producers or exporters in the exporting country 
concerned, which consequently do not have locus standi.  III. SUBSTANTIVE GROUNDS FOR JUDICIAL REVIEW 
 Article 230 (2) EC provides that the Court may review the legality of acts of the institutions 
on grounds of lack of competence, infringement of  an essential procedural requirement, infringement 
of the Treaty or of any rule relating to its application, or misuse of powers.  
 It should be noted that, although the role of the Court is not to substitute its own appraisals of 
complex economic situations for those of the Communi ty institutions, the Court verifies in particular 
that the facts on which the findings are based are accur ate, that there has not been any manifest error 
of assessment and that an ade quate reasoning is provided. 
 
IV. STEPS IN THE JUDICIAL PROCEDURE BEFORE THE EC COURTS 
 Court proceedings are usually divided into tw o phases, a written procedure, followed by an 
oral procedure. The written procedure consists of the following steps:   
- Application: Pursuant to Article 230 (5) EC the time-limit for applications is 
2 months of the publication of the act or of its notification to the plaintiff, or, 
in the absence thereof, of the day on which it came to the knowledge of the 
latter, as the case may be.
6 
- Defence by the Council or the Commission, as the case may be. 
                                                      
4 See e.g. Judgment of the ECJ, Case C-358/89, Extramet Industrie SA v. Council  [1991] ECR I-2501. 
5 See Judgement of the CFI, Case T-256/97, BEUC v. Commission  [2000] ECR II-101. According to 
this jurisprudence, in order to be considered an interested party for the purposes of an antidumping proceeding, 
it is in particular necessary to prove that there is an  objective link between the party’s activities, on the one 
hand, and the product under investigation, on the other. 
6 According to the rules of procedure of the Court, where the time period runs from publication of a 
measure, it is calculated from the end of  the 14th day after publication. Moreover, the prescribed time-limits are 
extended on account of distance by a single period of ten days. Th erefore, the de facto total deadline is two 
months, and 24 days (see Art. 102  of the Rules of Procedure of the CFI). G/ADP/AHG/W/158 
Page 4  
 
 - Reply by the applicant. 
- Rejoinder by the Council or the Commission, as  the case may be. 
 The oral procedure consists of a hearing,  possibly preceded by written answers from the 
parties to specific questions asked by the Court.  
 A particular feature of cases coming before th e ECJ is that, before the judgment is delivered, 
an Advocate General presents his advisory written opinion on the case to the Court. This opinion is, 
however, not in any way binding for the Court.    The total duration of Court proceedings can vary considerably depending on the 
circumstances of  the case, but may take up to two years or more. 
  A successful application under Article 230 results  in the annulment of the contested act with 
regard to the applicant, since the judgment only has an effect inter partes . In cases where the grounds 
for the annulment are such that they can still be corrected (e.g. error in the calculation methodology, 
no mentioning of a particular injury factor, etc.), the Commission will normally resume the 
investigation with a view to reaching a new determination.  
V. LEGAL ACTION BEFORE NATIONAL COURTS 
 As mentioned before, acts taken by the EC  authorities cannot be challenged before the 
national courts of the Member States. However, when national authorities collect duties, in 
application of EC regulations imposing anti-dumpi ng measures, the decisions relating to the duty 
collection may be subject to review at the national level. Interested parties, which would not have 
standing before the EC Courts because they are not directly and individually concerned (e.g. most of 
the importers which are not related to exporters),  have thus a possibility to challenge decisions 
relating to the collection of the anti-dumpi ng duties imposed before national courts. 
 
 Where during such national proceedings the validity of the Regulation imposing anti-dumping 
duties is questioned, the national jurisdictions can make a reference for a preliminary ruling to the 
ECJ pursuant to Article 234 EC. Such reference will, however, be inadmissible if the applicant in the 
proceedings before the national court clearly had locus standi to challenge the anti-dumping measure 
in question by way of a direct action for annulment  before the CFI, but failed to do so. The judgment 
of the ECJ on the validity and interpretation of th e Regulation on which the duty collection was based, 
is binding for the national courts.  
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