Appeal brought on 27 January 2015 by Photo USA Electronic Graphic, Inc. against the judgment of the General Court (Third Chamber) delivered on 18 November 2014 in Case T-394/13: Photo USA Electronic Graphic, Inc. v Council of the European Union
(Case C-31/15 P)
Language of the case: English
Parties
Appellant: Photo USA Electronic Graphic, Inc. (represented by: K. Adamantopoulos, avocat)
Other parties to the proceedings: Council of the European Union, European Commission, Ancàp SpA, Cerame-Unie AISBL, Confindustria Ceramica, Verband der Keramischen Industrie eV
Form of order sought
The appellant claims that the Court should:
set aside the Judgment of the General Court of the European Union of 18 November 2014 in Case T-394/13 Photo USA Electronic Graphic, Inc. v Council by which the General Court dismissed the application for annulment of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People's Republic of China1 ;
complete the analysis and annul Regulation (EU) No 412/2013; and
order the Council of the European Union to pay the Appellant's costs of this appeal as well as those of the proceedings before the General Court in Case T-394/13.
Pleas in law and main arguments
The Appellant submits that the General Court's findings with respect to Appellant's first, third and fourth pleas before the General Court are vitiated by several errors of law as well as a distortion of the evidence submitted. The Appellant therefore submits that the contested judgment should be set aside. In addition, the Appellant submits that the facts underlying the first, second and third pleas are sufficiently established so as to enable the Court of Justice to decide on those pleas.
As concerns the first plea, the Appellant advances two grounds of appeal. First, by imposing, in essence, on the Appellant the burden of proof that the Institutions made an error in their assessment in respect of each of the factors they deemed relevant, the General Court erred in law. As established in the previous jurisprudence of the General Court, it is sufficient for the Appellant to demonstrate either that (1) the Institutions erred in their assessment of the factors they deemed relevant or that (2) the application of other more relevant factors necessitated their exclusion. In that context, the determination that the Institutions made an error in their assessment in respect of 2 factors out of the 3 that the Institutions deemed relevant is sufficient to discharge the Appellant's burden of proof. Furthermore, in arriving at its findings the contested judgment distorted the evidence and the facts before the General Court.
In respect of the third and the fourth pleas, the Appellant advances four grounds of appeal. First, the General Court misinterpreted the provisions of Article 3(2) and 3(7) of Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community2 ("basic Regulation") by finding that the Institutions are obliged to analyse the impact of the anticompetitive practices on the situation of the industry in the Union only after the existence of such anti-competitive practices is affirmatively established in a final decision of a relevant competition authority. Secondly, having rejected the Appellant's request to disclose the identities of the sampled Union producers, the General Court distorted the evidence on record and erred in law by concluding that it could examine the Institution's compliance with Articles 3(2) and 3(4) of the basic Regulation without the knowledge of the identities of the sampled Union producers. Thirdly, by imposing on the Appellant an obligation to adduce positive evidence of the impact of the anti-competitive practices on the sampled Union producers in a situation where the identities of the sampled producers are kept secret, the contested judgment misinterpreted provisions of Articles 3(2) and 3(7) of the basic Regulation and imposed an unreasonable burden of proof on the Appellant. Fourthly, the contested judgment also misinterpreted the provisions of Article 3(2) and 3(7) of the basic Regulation by concluding that the relevant obligations can be discharged simply by relying on unelaborated assumptions instead of the performance of an actual analysis.
________________________1 OJ L 131, p. 1
2 OJ L 343, p. 51