In its Grand Chamber Judgment of 19 July 2012 in case C‑337/09 P Council v Zhejiang Xinan Chemical Industrial Group
(Xinanchem), the CJEU has analysed the potential difference between 'State control' through ownership of an undertaking with corporate form and the exercise of 'significant State interference' in the economic decisions adopted by such undertaking.
In Xinanchem, the CJEU has endorsed the antiformalistic approach taken by the GC in the appealed Judgment, and has rejected the assumption that by holding the largest number of shares and appointing the majority (actually, the entirety) of the members of the Board of Directors of a company China exercised 'significant State interference' in the market activities of that undertaking for the purposes of EU anti-dumping legislation. According to the CJEU:
State control, such as that observed in the
present case [where the distribution of the shares allowed the State shareholders to control the undertaking], cannot be equated, as a matter of principle, to
‘significant State interference’ within the meaning of the first indent
of Article 2(7)(c) of [Council Regulation (EC) No 384/96 of 22
December 1995 on protection against dumped imports from countries not
members of the European Community, as amended by
Council Regulation (EC) No 461/2004 of 8 March 2004] and cannot therefore relieve
the Council and the Commission of the obligation to take into account
the evidence, submitted by the producer concerned, of the real factual,
legal and economic context in which it operates (Xinanchem at para. 78).
Although some parts of the (literal) reasoning of the CJEU in Xinanchem remain obscure or tautological and, therefore, open to criticism ["the use of the word ‘interference’ indicates
that it is not sufficient that a State may have a certain amount of
influence over those decisions, but implies actual interference (sic) in them" Xinanchem at para. 80]; the adoption of such antiformalistic criterion, which clearly advocates for a free(r) and holistic appraisal of all factors determining whether the company actually reacts to market signals or stimuli, must be welcome.
However, one is left scratching the back of his head when comparing this approach with the rather more formalistic presumptions of control through ownership existing in other areas of EU economic law, such as competition law (where parental liability is subjected to a much stricter and formal test, as reminded on the same date in Judgment in case C-628/10 P Alliance One International and Standard Commercial Tobacco v Commission at para. 46, regardless of the presumption being rebuttable) or public procurement (in the particular issue of the excpetion for so-called in-house provision, following the well-known Teckal criteria of its Judgment in case Case C-107/98, and its ulterior refinements).
This seems to me rather as a (broad) area of EU economic law where further consistency is necessary because, according to the current state of the case law, we face a counterintuitive (and most likely unintended) situation where foreign undertakings controlled by foreign States may have more flexibility to demonstrate lack of effective control or influence (and hence, to gain liberty in their market activities) than domestic (ie European) undertakings. Not to sound protectionist, but this inconsistency in EU economic law seems difficult to stomach, particularly in this day and age.