Language of document : ECLI:EU:C:2014:261

OPINION OF ADVOCATE GENERAL

BOT

delivered on 10 April 2014 (1)

Case C‑21/13

Simon, Evers & Co. GmbH

v

Hauptzollamt Hamburg-Hafen

(Request for a preliminary ruling from the Finanzgericht Hamburg (Germany))

(Commercial policy — Regulation (EC) No 384/96 — Anti-dumping duties — Circumvention — Regulation (EC) No 499/2009 — Extension of the anti‑dumping duty on imports of hand pallet trucks originating in China to imports of the same product consigned from Thailand — Validity)





1.        By this request for a preliminary ruling, the Finanzgericht Hamburg (Finance Court, Hamburg) (Germany) puts to the Court a question on the validity of Council Regulation (EC) No 499/2009 of 11 June 2009 extending the definitive anti-dumping duty imposed by Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not, (2) following a circumvention investigation under Article 13 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, (3) as amended by Council Regulation (EC) No 461/2004 of 8 March 2004. (4)

2.        That request was made in the course of proceedings between Simon, Evers & Co. GmbH (5) and the Hauptzollamt Hamburg-Hafen (Principal Customs Office of the Port of Hamburg) (6) concerning a decision by the latter to require SECO to pay anti-dumping duties.

3.        This case gives the Court an opportunity to clarify the requirements relating to the identification and proof of existence of the constituent elements of a circumvention of anti-dumping duties, in particular in cases where the interested parties refuse to cooperate with the EU institutions.

4.        In this Opinion, I shall indicate that, while it falls to the EU institutions, when deciding to extend anti-dumping duties, to establish that all the constituent elements of a circumvention of those duties are present, a refusal to cooperate by the interested parties authorises the institutions to act on the sole basis of the information available and to infer from that information presumptions based on a reasonable likelihood.

5.        I shall also explain that, in the event of a refusal to cooperate by the interested parties, a review by the European Union judicature of the decision taken by the Council of the European Union must be confined to verifying that there has been no manifest error of assessment in the selection and use of the facts available and in the finding as to the existence of a logical and likely link between the facts established on the basis of that information and the facts presumed.

6.        In the present case, I shall submit that, having found there to have been an exponential growth in imports of hand pallet trucks originating in Thailand following the imposition of anti-dumping duties on the same products originating in China, the Council did not commit a manifest error of assessment in inferring from this the existence of a change in the pattern of trade between the third countries concerned and the European Union within the meaning of Article 13(1) of the basic regulation, the finding of a concomitant increase in imports from China not being such as to call that assessment into question, particularly given that that increase remained out of proportion to the increase in imports from Thailand.

7.        I shall argue, similarly, that the coincidence in time established between the change in the pattern of trade and the imposition of anti-dumping duties, together with the lack of any evidence to show that the product forming the subject of the investigation was manufactured in the third country in question, made it reasonable to infer the likely existence of a practice, process or work for which there was no due cause or economic justification other than the imposition of the anti-dumping duty.

8.        I shall conclude that the examination of the contested regulation in the light of the grounds referred to in the order for reference has not revealed the existence of any factors capable of affecting its validity.

I –  Legal framework

A –    The basic anti-circumvention rules

9.        The first Community measure to lay down anti-circumvention rules was Regulation (EEC) No 1761/87. (7) In order to combat the practice of replacing exports of finished goods with exports of parts that were then assembled in ‘screwdriver plants’ in the territory of a Member State, Article 1 of Regulation No 1761/87 inserted into Article 13 of Regulation (EEC) No 2176/84 (8) a paragraph 10 which, subject to certain conditions, made provision for the imposition of a definitive anti-dumping duty on products introduced onto the European Community market after having been assembled or produced in the Community. That provision was reproduced verbatim in Regulation (EEC) No 2423/88, (9) which replaced Regulation No 2176/84.

10.      The question of circumvention was later discussed in the negotiations preceding the agreement on the implementation of Article VI of the 1994 General Agreement on Tariffs and Trade (WTO-GATT 1994). (10) However, as no agreement could be reached, (11) the 1994 Anti-dumping Code does not ultimately contain any provision in this regard. (12)

11.      In those circumstances, the Community decided to adopt new unilateral measures which differ from the earlier measures in that, first, they extend to forms of circumvention other than ‘traditional’ circumvention, by way of assembly operations, and, secondly, so far as assembly operations are concerned, they are directed at those carried out both in third countries and in Member States.

12.      The anti-circumvention provisions were set out in Article 13 of the basic regulation, which provided:

‘1.      Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries, of the like products … from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place. … Circumvention shall be defined as a change in the pattern of trade between third countries and the Community or between individual companies in the country subject to measures and the Community, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2.

2.      An assembly operation in the Community or a third country shall be considered to circumvent the measures in force where:

(a)      the operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures;

and

(c)      the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the assembled like product and there is evidence of dumping in relation to the normal values previously established for the like or similar products.

3.      Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1. Initiations shall be made, after consultation of the Advisory Committee, by Commission Regulation which may also instruct the customs authorities to make imports subject to registration in accordance with Article 14(5) or to request guarantees. Investigations shall be carried out by the Commission, which may be assisted by customs authorities and shall be concluded within nine months. When the facts as finally ascertained justify the extension of measures, this shall be done by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. …

…’

13.      In addition, Article 14 of the basic regulation, entitled ‘General provisions’, provided at paragraph 6:

‘Member States shall report to the Commission every month, on the import trade in products subject to investigation and to measures, and on the amount of duties collected pursuant to this Regulation’.

14.      Finally, Article 18 of the basic regulation, entitled ‘Non-cooperation’, stated:

‘1.      In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits provided in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made of facts available. Interested parties should be made aware of the consequences of non‑cooperation.

5.      If determinations, including those regarding normal value, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time-limits of the investigation, be checked by reference to information from other independent sources which may be available …

6.      If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than if it had cooperated’.

B –     The anti-dumping rules applicable to imports of hand pallet trucks originating in China

15.      Following a complaint lodged by a number of Community producers and a preliminary investigation covering the period from 1 April 2003 to 31 March 2004, on 29 April 2004, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of hand pallet trucks and their essential parts originating in the People’s Republic of China. (13)

16.      At the end of that proceeding, the Commission adopted Regulation (EC) No 128/2005 of 27 January 2005 imposing a provisional anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China. (14)

17.      The Council then adopted Regulation (EC) No 1174/2005, (15) which set a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts, that is to say the chassis and hydraulics, of CN codes ex 8427 90 00 and ex 8431 20 00 (TARIC codes 8427 90 00 10 and 8431 20 00 10) originating in China. (16)

18.      The Council subsequently adopted Regulation (EC) No 684/2008 of 17 July 2008 clarifying the scope of the anti-dumping measures imposed by Regulation No 1174/2005. (17)

C –     Extension of the rules to imports of hand pallet trucks consigned from Thailand

19.      On the basis of evidence which, according to the Commission, indicated prima facie that the anti-dumping measures applied to imports of hand pallet trucks originating in China were being circumvented by having the product in question assembled in Thailand, the Commission adopted Regulation (EC) No 923/2008. (18)

20.      Following the investigation into this possible circumvention, which covered the period from 1 September 2007 to 31 August 2008, the Commission proposed that the Council adopt the regulation at issue, which extended the definitive anti-dumping duty imposed by Regulation No 1174/2005 to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in that country or not.

21.      As regards the conduct of the investigation, recitals 6 to 9 in the preamble to the regulation at issue state:

‘(6)      The Commission officially advised the authorities of the [People’s Republic of China] and Thailand, the producers/exporters in the [People’s Republic of China] and Thailand, the importers in the Community known to be concerned and the Community industry of the initiation of the investigation. Questionnaires were sent to known producers/exporters in the [People’s Republic of China] and in Thailand as well as to the importers in the Community known to the Commission from the original investigation and to parties that had made themselves known within the deadlines specified in Article 3 of … Regulation [No 923/2008]. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in [that] Regulation. All parties were informed that non-cooperation might lead to the application of Article 18 of the basic regulation and to findings being made on the basis of the facts available.

(7)      No replies to the questionnaires were received from exporters/producers in Thailand, nor did the Commission receive any comments from the Thai authorities. Only one Thai exporter/producer of [hand pallet trucks and their essential parts], which, according to information at the disposal of the Commission at the time of initiation, exported [hand pallet trucks and their essential parts] to the Community during the period 2005 up to the investigation period (as defined in recital 10) and had assembly operations of [hand pallet trucks and their essential parts] in Thailand, submitted that it has ceased to exist as from April 2008.

(8)      One Chinese exporting producer replied to the questionnaire by declaring its export sales to the EC as well as some very minor exports of the product concerned to Thailand. No comments were received from the Chinese authorities.

(9)      Finally, nine Community importers submitted questionnaire replies reporting their imports from China and Thailand. In general, from their replies it is concluded that there was an increase of imports from Thailand and a sudden decrease of the imports from the [People’s Republic of China] in 2006, the year after definitive anti-dumping duties came into force. In the following years, the imports from the [People’s Republic of China] increased again while at the same time imports from Thailand slightly decreased but still remained well above the 2005 levels’.

22.      As regards the change in the pattern of trade between the third countries and the Community, recitals 16 to 20 in the preamble to the contested regulation are worded as follows:

‘(16) Due to the non-cooperation of any Thai company, the volume and value of Thai exports of the product concerned to the Community were determined on the basis of the information available, which in this case was statistical data collected by Member States and compiled by the Commission pursuant to Article 14(6) of the basic regulation, and Eurostat data. As regards the data provided in the replies of the Community importers, the investigation established that the number of Thai exports reported by the Community importers represented only a very minor part of the total Thai exports of [hand pallet trucks and their essential parts] during the [investigation period], namely less than 5%. Under these circumstances it was considered that the statistical data at the Commission’s disposal portrays more accurately the situation with respect to the volume and value of Thai exports than the limited information made available by Community importers.

(17)      Following the imposition of the anti-dumping measures imports of [hand pallet trucks and their essential parts] from Thailand increased from 7 458 trucks in 2005 to 64 706 trucks in 2007 and decreased to 42 056 trucks during the [investigation period].

(18)      With respect to China, imports of [hand pallet trucks and their essential parts] to the EC increased from 240 639 trucks in 2005 to 538 271 in 2007 and 584 786 during the [investigation period]. According to the available information, this increase is mainly attributed to increased exports of the sole Chinese exporting producer, which has the lowest anti-dumping duty rate. Indeed, Chinese exports from this particular party represent the overwhelming percentage of the increase of imports into the EC of [hand pallet trucks and their essential parts] from the [People’s Republic of China] between 2005 and the end of the [investigation period].

(19)      Account taken of the above situation, it is concluded that there was a change in the pattern of trade between the EC, the [People’s Republic of China] and Thailand. Imports from the [People’s Republic of China] continued to increase but this is directly attributed to the export performance of one of the Chinese exporting producers which cooperated with the original investigation and was attributed the lowest anti-dumping duty. On the other hand, imports from Thailand increased by 868% from 2005 to 2007 and stabilised during the [investigation period] to an increase of 564% with respect to 2005.

(20)      In sum, the trade pattern found, although showing persistence in exports from the [People’s Republic of China] also shows a significant increase of exports from Thailand. The persistence or continued increase, albeit much smaller between 2007 and the [investigation period] than that found in the original investigation, of exports from the [People’s Republic of China], can be explained by noting that the overwhelming majority of the exports come from the Chinese company with the lowest anti-dumping duty rate. The pattern relating to Thailand, on the other hand, could only be explained as the result of actions aiming at the circumvention of measures.’

II –  The facts of the dispute in the main proceedings and the question referred for a preliminary ruling

23.      On 6 October 2008, SECO imported hand pallet trucks from Thailand.

24.      Considering that imports of those products were subject to anti-dumping duty under the contested regulation, the Haptzollamt, by notice of 12 August 2009, imposed an anti-dumping duty of EUR 9 666.90 on SECO.

25.      After the Hauptzollamt, by decision of 21 February 2011, had dismissed as unfounded the appeal brought against that notice, SECO instituted proceedings before the referring court.

26.      That court is uncertain whether the conditions laid down in Article 13(1) of the basic regulation for the purposes of determining whether anti-dumping duties have been circumvented are satisfied in this case.

27.      More specifically, the Finanzgericht Hamburg considers that the pattern of imports from Thailand should have been explained, given that these, after having increased considerably in 2007, fell significantly during the investigation period. According to the Finanzgericht Hamburg, where a change in the pattern of trade between third countries and the European Union is due to the circumvention of anti-dumping measures, the exports from the third country used for the circumvention tend to increase steadily or remain constant after an appreciable rise.

28.      The referring court is also uncertain whether the change in the pattern of trade between the third countries and the European Union is attributable to the introduction of anti-dumping duties on hand pallet trucks originating in China when imports from China themselves increased considerably during the reference period. Indeed, during the period from 2005 to 2007, Chinese exports also rose sharply, whereas, during the subsequent investigation period, exports from Thailand, which represented only 7.19% of the number of pallet trucks produced in China for export, fell by around 35%, unlike exports originating in China, which continued to rise.

29.      Finally, the Finanzgericht Hamburg asks what practice, process or work could have brought about a change in the pattern of trade between the third countries and the European Union, pointing out that the recital in the preamble to the contested regulation provides no clarification in this regard.

30.      It was in those circumstances that the Finanzgericht Hamburg decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Is [the regulation at issue] invalid because the Commission, by misjudging the requirements arising from Article 13 of [the basic regulation] concerning the finding of a circumvention of anti-dumping duty measures, found that there was a circumvention merely because the volume of exports in question from Thailand increased significantly after the imposition of the measures, although the Commission, with reference to the lack of cooperation from Thai exporters, made no further specific findings?’

III –  Analysis

31.      By its question, the referring court asks in essence whether the regulation at issue is invalid because it did not adequately establish the existence of a circumvention within the meaning of Article 13(1) of the basic regulation, in so far as it failed to identify, on the one hand, the change in the pattern of trade between the third countries concerned and the European Union and, on the other hand, the existence of a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of anti-dumping duties on hand pallet trucks originating in China.

A –    Admissibility of the objection as to the unlawfulness of the regulation at issue

32.      Before I assess the validity of the contested regulation, there appears to me to be a need to examine whether SECO could validly plead, by way of objection, the unlawfulness of that regulation before the national court.

33.      It follows from the line of case-law beginning with the judgment in TWD Textilwerke Deggendorf (19) that a natural or legal person cannot effectively call into question the lawfulness of a European Union act before a national court by way of objection, in cases where he could have challenged that act by way of a direct action for annulment and has allowed the mandatory time-limit laid down in this regard to expire. (20) The loss of that right is, however, subject to the finding that it is evident that the person concerned had beyond doubt standing to bring an action for annulment. (21)

34.      The Court has also repeatedly held that regulations imposing an anti‑dumping duty, although by their nature and scope of a legislative nature, in so far as they apply to all the economic operators concerned, may be of direct and individual concern to certain economic operators, including those importers who are associated with third-country exporters and whose retail prices for the products in question form the basis of the constructed export price. (22)

35.      The documents before the Court, however, do not show that SECO, which acts as an importer established in the European Union, should be regarded as being directly and individually concerned by the regulation at issue and, therefore, that it had beyond doubt standing to bring an action for the annulment of that act.

36.      Consequently, SECO, which is concerned by the contested regulation only in so far as ‘it comes objectively within the scope’ (23) of the rules laid down by that regulation, in its capacity as an economic operator in the sector in question, has standing to plead, by way of objection, the unlawfulness of that act before the national court, which may therefore refer that question to the Court of Justice under the preliminary ruling procedure.

B –    Merits

1.      Observations of the parties

37.      SECO submits that the Court must answer the question in the affirmative, and puts forward a number of grounds which may be briefly summarised as follows.

38.      In its contention, the change in the pattern of trade referred to in Article 13(1) of the basic regulation implies a decline in imports originating in the third country subject to the anti-dumping duty and a correlative increase in imports from the country of circumvention, the former being substituted by the latter. (24) In this case, however, it is clear that the imports of hand pallet trucks originating in China were not replaced by corresponding imports from Thailand, given that the former doubled between the period covered by the initial investigation and that covered by the anti-circumvention investigation.

39.      Similarly, it argues, the extension of an anti-dumping duty presupposes the existence of an act of circumvention within the meaning of Article 13(1) of the basic regulation and, in the event of a finding as to the existence of assembly operations, that the conditions laid down in Article 13(2) of that regulation are satisfied. The contested regulation, however, contains no detailed explanation in relation to an act of circumvention or, assuming that the act of circumvention consists in the assembly operations found to exist at the time when the investigation was opened, in relation to the satisfaction of the conditions required by Article 13(2) of the basic regulation.

40.      Moreover, the EU institutions have not proved that the imposition of anti‑dumping duty alone constituted sufficient due cause or economic justification for the change in the pattern of trade.

41.      Finally, it submits, the institutions have not established that the remedial effects of the duty have been undermined in terms of the prices and/or quantities of like products.

42.      The intervening governments, the Council and the Commission dispute the contention that the regulation at issue is invalid and base their position on the following arguments.

43.      The Greek Government maintains that Article 18 of the basic regulation introduces a presumption designed to assist the EU institutions in the conduct of the anti-circumvention investigation, to the effect that, in the absence of cooperation from the parties concerned, the EU institutions may classify the change in the pattern of trade which ensued immediately after the anti-dumping duty was imposed as circumvention, unless the interested parties adduce proof to the contrary.

44.      In the same vein, the Portuguese Government considers that, where cooperation is not forthcoming from the interested parties, Article 13 of the basic regulation must be interpreted in a manner flexible enough to ensure that the lack of cooperation cannot of itself prevent the adoption of measures to protect trade. In its view, taking into account the presumption that may be drawn from the non‑cooperation of the interested parties, in accordance with Article 18 of the basic regulation and Article 6 of, and Annex II to, 1994 Anti-dumping Code, the existence of circumvention may be inferred from the significant increase observed in exports of hand pallet trucks from Thailand to the European Union and the coincidence in time between that increase and the entry into force of the anti‑dumping measures applicable to exports of the same products from China. Furthermore, it contends, the Commission’s practice in applying the basic regulation shows that the main indications of circumvention are always to be found in sudden significant increases in imports of a particular product from one or more unusual sources and a coincidence in time between that increase and the application of anti-dumping measures. (25)

45.      The Council and the Commission state that, because of the lack of cooperation from Thai exporting producers, the volume and value of Thai exports of hand pallet trucks were determined on the basis of the only information available, that is to say, the statistical data collected by the Member States and collated by the Commission in accordance with Article 14(6) of the Basic regulation, and Eurostat data.

46.      Those institutions consider that, having detected, on the basis of the information available, a change in the pattern of trade, they have established that imports from Thailand began to grow shortly after the introduction of duty on imports from China, and explain that they have received no evidence capable of explaining that significant increase, and, in particular, no evidence to suggest the existence of genuine hand pallet truck production activities in Thailand.

47.      They argue that, in accordance with Article 13(1) of the basic regulation, the burden of proving that there is sufficient due cause or economic justification for the change in the pattern of trade lies with the parties concerned. Furthermore, they submit, the Court confirmed that approach in Brother International. (26)

48.      The Council and the Commission further submit that the basic regulation does not give them any power to compel undertakings which are the subject of an investigation to take part in the investigation or to produce information.

49.      While recognising that, as it traditionally manifests itself, circumvention is characterised by a decline in exports from the country subject to anti-dumping measures and a corresponding increase in exports from the country concerned by the circumvention procedure, those institutions submit that circumvention does not necessarily have to manifest itself in this way in order to warrant the introduction of measures to combat it, since neither Article 13(1) of the basic regulation nor the case-law require proof of substitution.

50.      The Commission states that it held official trade statistics issued by the Thai government which showed that imports of essential parts of hand pallet trucks from China to Thailand had increased sharply during the period from 2005 to 2007, which is to say that they had risen from 77 tonnes during the period from August to December 2004 to 1 271 tonnes during the period from August to December 2007.

51.      It goes on to say that, in the absence of any cooperation from the undertakings concerned, it was impossible for it to obtain more detailed information on how essential parts of hand pallet trucks became finished hand pallet trucks in Thailand.

52.      The Commission also maintains that the terms ‘practice’, ‘process’ or ‘work’ in Article 13(1) of the basic regulation do not constitute an independent criterion for circumvention, at least in the event of non-cooperation, and that it was for the Thai exporters to show that the sudden increase in imports of essential parts from China and the parallel sharp rise in exports of pallet trucks to the European Union had a sufficient due cause or economic justification other than the imposition of the anti-dumping duty. The Commission contends that rule relating to the burden of proof is, moreover, corroborated by Brother International, (27) although it does note that that judgment is not concerned with the lawfulness of a regulation extending anti-dumping duties.

2.      Assessment

a)      The scope of the assessment of validity

53.      It should be noted that, as is apparent from the order for reference, the Finanzgericht Hamburg has, by its question, considered it necessary to ask the Court to review the validity of the contested regulation only in the light of two of the four constituent elements of circumvention within the meaning of Article 13(1) of the basic regulation, that is to say, on the one hand, the change in the pattern of trade between the third countries and the European Union and, on the other hand, the existence of a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the anti-dumping duty. SECO, however, asks the Court to extend its review to an examination of whether the EU institutions have established that the remedial effects of the duty had been undermined in terms of the prices and/or quantities of like products.

54.      According to settled case-law, based on the principle that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, the examination of the validity of a European Union act must not be extended to grounds not specified by the referring court, such as those put forward by the parties in the main proceedings. (28)

55.      In those circumstances, where the national court limits the grounds in the light of which it intends to seek a review as to the validity of a provision of EU law, the review carried out by the Court in the context of the reference for a preliminary ruling on validity must be limited to an examination of those grounds, unless the Court raises of its own motion a plea involving a matter of public policy.

56.      The Court should not therefore assess the grounds for the invalidity of the contested regulation, raised by SECO in its observations, which allege infringement of Article 13(1) of the basic regulation and of the obligation to state reasons, in so far as the EU institutions have not successfully shown that the remedial effects of the anti-dumping duty imposed on imports originating in China were undermined in terms of prices and/or quantities by the imports from Thailand.

b)      The validity of the contested regulation

i)      General considerations concerning the consequences of a refusal to cooperate by the interested parties

57.      Before looking in more detail at the grounds on which the referring court questions the validity of the regulation at issue, it is necessary to consider the issues that may arise in the event of non-cooperation by the interested parties. It is on this basis that the Greek and Portuguese Governments, the Council and the Commission argue in particular that use may be made of the only information that is available and that the constituent elements of circumvention as required by Article 13(1) of the basic regulation must accordingly be interpreted more flexibly.

58.      The basic regulation devotes a specific article to non-cooperation, namely Article 18, which constitutes the transposition into EU law of the content of paragraph 6.8 of, and Annex II to, the 1994 Anti-dumping Code, in the light of which it must to the extent possible be interpreted. (29)

59.      Article 18 of the basic regulation comprises six paragraphs dealing respectively with cases in which available information may be used instead of information from one or more of the interested parties; failure to give a computerised response; cases in which the information has been submitted but is not ideal in all respects; cases where the evidence or information supplied by a party is not accepted; the checks necessary where determinations are made on the basis of the information available; and, finally, the situation where an interested party does not cooperate.

60.      Two paragraphs must be given particular attention.

61.      First, Article 18(1) of the basic regulation expressly provides that, in cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.

62.      Secondly, Article 18(6) of the basic regulation provides that, if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than if it had cooperated.

63.      While the first provision sets out a clear solution, the second does not lend itself so easily to an unequivocal interpretation. In my view, if those provisions are applied together, three consequences may be brought to bear in the event of a refusal to cooperate by the parties interested or concerned. The first concerns the possibility for the EU institutions to act on the basis of the only facts available, while the second relates to the right of those institutions to infer from those facts presumptions based on a reasonable likelihood. Finally, the third consequence that may be inferred from the refusal to cooperate is concerned with limiting the extent of the judicial review.

–       The possibility for the EU institutions to act on the basis of the only facts available

64.      It should be pointed out that, although the anti-circumvention mechanism provided for in Article 13(3) of the basic regulation requires the Commission to initiate and then, within a period of nine months, conclude an investigation in order to determine whether the facts complained of are finally ascertained, the basic regulation does not give the Commission any power of investigation enabling it to compel the producers or exporters forming the subject of the complaint to participate in the investigation or to produce information. The Council and the Commission therefore depend on the voluntary cooperation of the undertakings concerned in supplying the necessary information within the time‑limits set. (30)

65.      In that context, in allowing findings to be made on the basis of the facts available, Article 18(1) of the basic regulation undoubtedly reflects the EU legislature’s intention of simplifying the investigative task incumbent on the Council and the Commission when faced with material obstacles due to the ill will of the companies concerned.

66.      It is important to note, however, that the right of the EU institutions to use the facts available where an undertaking refuses to cooperate or supplies false or misleading information is tempered by the obligation, laid down in Article 18(5) of the basic regulation, to check that information by reference to other available sources of information.

67.      That requirement of circumspection in the use of such facts, which may be regarded as following from the principle of sound administration, (31) is particularly important given that the refusal to cooperate by the undertakings concerned appears to me to allow the EU institutions not only to make findings of fact on the basis of incomplete data but also to infer from those findings presumptions of fact serving to establish that the constituent elements of circumvention within the meaning of Article 13(1) of the basic regulation are actually present.

–       The right of the EU institutions to infer from the facts available presumptions based on a reasonable likelihood

68.      It follows indisputably from the very terms of Article 18 of the basic regulation that it was not the intention of the EU legislature to establish a legal presumption making it possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, and thereby exempting the EU institutions from any requirement to adduce proof.

69.      However, given that it is possible to making findings, even definitive findings, on the basis of the facts available and to treat a party who does not cooperate or does not cooperate fully less favourably than if it had cooperated, it is, to my mind, equally evident that the EU institutions are authorised to infer from the direct proof of the facts which they have been able to establish from the information in their possession indirect proof of the facts which remain unknown on account of the non-cooperation of the parties. In other words, Article 18 of the basic regulation allows the EU institutions to act on the basis of presumptions provided that there is a logical and reasonable link between the facts established and those that remain unknown. Prohibiting those institutions from relying on such presumptions would have the effect of creating an insurmountable obstacle to the adoption of anti-circumvention measures in cases where the undertakings forming the subject of the investigation refuse to cooperate.

70.      The EU institutions’ practice of acting on the basis of presumptions in cases where the parties interested or concerned refuse to cooperate therefore seems to me to be entirely in conformity with the legislation.

71.      That practice is of course subject to review by the European Union judicature, even though there are certain limits to that review.

–       Limitations on the extent of the judicial review of acts adopted by the EU institutions

72.      The present request for an assessment of validity requires the Court to review the lawfulness of the regulation at issue in the light of the grounds referred to by the referring court, which raises the question of the extent of the judicial review of anti-dumping measures adopted by the Council and, more particularly, of regulations extending such measures.

73.      In a situation such as that at issue in the main proceedings, there are two reasons that justify a limitation of the judicial review.

74.      The first limitation concerns the subject‑matter at issue.

75.      In that regard, the Court has repeatedly held that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of assessments made by those institutions is therefore limited to verifying whether the relevant 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 of assessment of those facts or a misuse of powers. (32)

76.      The Court has thus held that the choice between the different methods of calculating the dumping margin or the anti-dumping duty, (33) the assessment of the normal value of a product or the choice of the reference country to be used to determine that value where the products come from a non-market economy country, (34) the evaluation of the impact of dumped imports on the state of the European Union industry, (35) the determination of the period to be taken into consideration for the purposes of determining injury, (36) or the question whether the interests of the European Union call for European Union intervention, (37) require an assessment of complex economic situations.

77.      The second limitation follows from the conduct of the interested parties.

78.      In my opinion, where the interested parties refuse to cooperate, the review by the European Union judicature of the decision taken by the Council must be limited to checking that there is no manifest error of assessment in the selection and use of the available information and in the recourse to presumptions based on a reasonable likelihood.

79.      In other words, the fact that a refusal to cooperate authorises the EU institutions, in the absence of actual certainty, which is impossible to secure, to act on the basis of a strong likelihood, brings about a shift in the subject-matter of the judicial review, which must look at the likelihood of the presumptions which the EU institutions have drawn from the information in their possession.

80.      In accordance with its traditional case-law to the effect that a presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded, (38) the European Union judicature is in effect required to carry out a review as to the proportionality of the reasonable use of presumptions.

81.      It is just such a review which I propose should be carried out on the regulation at issue, in the light of the grounds for invalidity raised by the referring court.

ii)    Examination of the grounds for invalidity

82.      It must be ascertained whether the Council committed a manifest error of assessment in finding there to have been a change in the pattern of trade between the third countries and the European Union as a result of a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the anti-dumping duty.

83.      First of all, it is my view that the Council did not infringe Article 13(1) of the basic regulation or commit a manifest error of assessment in finding there to have been a change in the pattern of trade between the third countries concerned and the European Union.

84.      It was clear from the facts available that imports of hand pallet trucks from Thailand had risen from 7 458 in 2005 to 64 706 in 2007, that is to say an increase of 868%, before falling to 42 056 during the investigation procedure, which was still an increase of 564% as compared with 2005.

85.      I therefore consider that the Council identified the change in the pattern of trade simply by establishing the existence of an exponential growth in imports from Thailand following the imposition of anti-dumping duties which continued, albeit at a lower level, during the investigation period, since, during that period, the number of hand pallet trucks imported from Thailand remained out of proportion to the number of hand pallet trucks imported before the duties were imposed.

86.      I do not believe that the finding of a concomitant increase in imports of hand pallet trucks from China is such as to call that assessment into question. If, as the referring court rightly points out, the finding, in recital 20 in the preamble to the contested regulation, of a ‘persistence’ in exports from China appears to be incorrect, since those exports actually increased between 2005 and the investigation period, the fact remains that that increase, while significant, bears no comparison to the exponential rise in imports of hand pallet trucks from Thailand immediately after the imposition of anti-dumping duties.

87.      It must be pointed out in this regard that the definition of circumvention given in Article 13(1) of the basic regulation is framed in very general terms which leave a broad margin of discretion to the EU institutions, and, in particular, that it provides no details of the nature and form of the ‘change in the pattern of trade between third countries and the [Union]’. (39) As the Council and the Commission rightly point out, that broad definition does not imply that the imports from the country subject to anti-dumping duty must have been substituted by the imports from the country forming the subject of the anti-circumvention procedure.

88.      Secondly, I consider that, in the absence of cooperation from the interested parties, the coincidence in time established between the change in the pattern of trade and the imposition of anti-dumping duties, together with the lack of any evidence to show that the product forming the subject of the investigation is manufactured in the third country concerned, made it reasonable to infer the likely existence of a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of anti-dumping duty.

89.      Since that coincidence in time is sufficient in itself to support a presumption, the Council cannot be criticised for having failed to identify more precisely the practice, process or work which had led to a change in the pattern of trade, although it is perhaps regrettable that the Council did not set out in the grounds of the contested regulation certain items of available information relating in particular to imports of essential parts of hand pallet trucks from the People’s Republic of China to Thailand. (40)

90.      Although Brother International (41) concerns a subject area other than measures to counter the circumvention of anti-dumping duties, the line of reasoning which I am proposing that the Court should follow seems to me to be confirmed by the approach taken in that judgment, from which it may be concluded, by converse inference, that the transfer of the assembly from the country where the parts are manufactured to another country is sufficient in itself to support the presumption that the sole object of that transfer was to circumvent the applicable provisions, where there is a coincidence in time between the entry into force of the relevant legislation and the transfer of the assembly. (42)

91.      Moreover, contrary to what SECO maintains, I do not think that the Council can be criticised for having detected the existence of assembly operations without establishing whether they meet the requirements of Article 13(2) of the basic regulation. Although recitals 4 and 21 in the preamble to the regulation at issue state that, at the time when the investigation was opened, the information at the Commission’s disposal appeared to suggest that a significant amount of assembly operations had taken place in Thailand, recital 11 in the preamble to the contested regulation states that, owing to the refusal of Thai hand pallet truck producing exporters to cooperate, the Commission was not able to determine the nature of the imports consigned from Thailand. Consequently, the original assumption in respect of assembly operations could not be verified. Even if that assumption were verified, it would still be the case that the impossibility of establishing the facts because of the refusal of the interested parties to cooperate would in any event justify the application of a presumption that the conditions laid down in Article 13(2) of the basic regulation were satisfied. (43)

92.      In those circumstances, the Council does not appear to have committed a manifest error of assessment of the facts in adopting the contested regulation.

93.      It should be added that there is nothing to indicate that the EU institutions failed to fulfil the procedural requirements incumbent on them when examining the existence of a circumvention of anti-dumping duty.

94.      In particular, it should be pointed out that the Commission gave the interested parties an opportunity to make their views known in writing and to ask for a hearing and that all the parties were informed that failure to cooperate could lead to the application of Article 18 of the basic regulation and to the establishment of findings based on the information available.

95.      Moreover, the Commission did not confine itself to the prima facie evidence available to it at the time when the initial investigation was opened. It also took account of the statistical data collected by the Member States, which it collated in accordance with Article 14(6) of the basic regulation, and of Eurostat statistics.

96.      I therefore take the view that the examination of the regulation at issue in the light of the grounds referred to in the order for reference has not revealed the existence of any factors capable of affecting its validity.

IV –  Conclusion

97.      For the reasons set out above, I propose that the Court’s answer to the question referred by the Finanzgericht Hamburg should be as follows:

The examination of Council Regulation (EC) No 499/2009 of 11 June 2009 extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not, in the light of the grounds referred to in the order for reference, has not revealed the existence of factors capable of affecting its validity.


1 – Original language: French.


2 – OJ 2005 L 151, p. 1, ‘the regulation at issue’.


3 – OJ 1996 L 56, p. 1.


4 – OJ 2004 L 77, p. 12, ‘the basic regulation’. That regulation was replaced and codified 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, and corrigendum in OJ 2010 L 7, p. 22). However, in view of the date on which the contested regulation was adopted, the dispute must be examined on the basis of the basic regulation. It should be pointed out that, although the referring court did not take into account in its order for reference the amendments to the definition of circumvention made by Regulation No 461/2004, those amendments have no bearing on the answer to the question referred.


5 – ‘SECO’.


6 – ‘The Hauptzollamt’.


7 – Council Regulation of 22 June 1987 amending Regulation (EEC) No 2176/84 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1987 L 167, p. 9).


8 – Council Regulation of 23 July 1984 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1).


9 – Council Regulation of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1).


10 – OJ 1994 L 336, p. 103, ‘the 1994 Anti-dumping Code’.


11 – This was in fact a key objective of the discussions in the Uruguay round of multilateral negotiations. See Holmes, S., ‘Anti-circumvention under the European Union’s new anti‑dumping rules’, Journal of World Trade, 1995, p. 161.


12 – The negotiations led only to the adoption of a ministerial declaration entitled ‘Decision on Anti‑Circumvention’, in which the ministers, ‘[m]indful of the desirability of the applicability of uniform rules in [the] area [of the circumvention of anti-dumping measures] as soon as possible, decide to refer this matter to the Committee on Anti-Dumping Practices’.


13 – OJ 2004 C 103, p. 85.


14 – OJ 2005 L 25, p.16.


15 – Regulation of 18 July 2005 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China (OJ 2005 L 189, p. 1).


16 – See Article 1 of Regulation No 1174/2005.


17 – OJ 2008 L 192, p. 1. Although the products concerned by the initial investigation were referred to, without further detail, as ‘hand pallet trucks, not self-propelled, used for the handling of materials normally placed on pallets, and their essential parts, i.e. chassis and hydraulics’ (recital 9 in the preamble to Regulation No 648/2008), that regulation made clear the meaning to be ascribed to ‘hand pallet trucks’. They are ‘trucks with wheels supporting lifting fork arms for handling pallets, designed to be manually pushed, pulled and steered, on smooth, level, hard surfaces, by a pedestrian operator using an articulated tiller’ (Article 1 of that regulation). It goes on to say that those hand pallet trucks ‘are only designed to raise a load, by pumping the tiller, to a height sufficient for transporting and do not have any other additional functions or uses’ (ibidem).


18 – Regulation of 12 September 2008 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Regulation (EC) No 1174/2005, as amended by Council Regulation (EC) No 684/2008 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China by imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not and making such imports subject to registration (OJ 2008 L 252, p. 3).


19 – C‑188/92, EU:C:1994:90.


20 – Paragraphs 17 and 18.


21 – See, inter alia, Pringle (C‑370/12, EU:C:2101:756, paragraphs 41 and 42).


22 – See, inter alia, Nachi Europe (C‑239/99, EU:C:2001:101, paragraph 21).


23 – This phrase is taken from Allied Corporation and others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraph 15.


24 – In support of its argument, SECO cites several regulations extending anti-dumping duties which establish the existence of a substitution.


25 – The Portuguese Government refers, by way of example, to Council Implementing Regulation (EU) No 14/2012 of 9 January 2012 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 511/2010 on imports of certain molybdenum wires originating in the People’s Republic of China to imports of certain molybdenum wires consigned from Malaysia, whether declared as originating in Malaysia or not, and terminating the investigation in respect of imports consigned from Switzerland (OJ 2012 L 8, p. 22).


26 – C‑26/88, EU:C:1989:637.


27 – EU:C:1989:637.


28 – See to that effect Ordre des barreaux francophones et germanophones and Others (C‑305/05, EU:C:2007:383, paragraphs 17 to 19); Nuova Agricast, C‑390/06, (EU:C:2008:224, paragraphs 43 and 44); and Hoesch Metals and Alloys, C‑373/08, (EU:C:2010:68, paragraphs 59 and 60). This limitation of the review of validity is explained not only by the very purpose of the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU, but also, as Advocate General Poiares Maduro noted in point 23 of his Opinion in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:292), by respect for the task carried out as a European Union court by the national court, which has the power to examine the lawfulness of European Union acts, the finding of invalidity alone being reserved for the Court of Justice.


29 – On this rule of interpretation, see in particular Petrotub and Republica (C‑76/00 P, EU:C:2003:4, paragraph 56). For the application of that rule in the particular case of the interpretation of Article 18 of the basic regulation, see also Sun Sang Kong Yuen Shoes Factory v Council (T‑409/06, EU:T:2010:69, paragraph 103).


30 – See to that effect Transnational Company ‘Kazchrome’ and ENRC Marketing v Council (T‑192/08, EU:T:2011:619, paragraph 272).


31 – See to that effect Stanbrook, C., and Bentley, P., ‘Dumping and subsidies — The Law and Procedures Governing the Imposition of Anti-dumping and Countervailing Duties in the European Community’, 3rd edition, Kluwer Law International, London, 1996, p. 168.


32 – See Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63 and the case-law cited).


33 – See Minolta Camera v Council, C‑178/87 (EU:C:1992:112, paragraph 41).


34 – See Nölle (C‑16/90, EU:C:1991:402, paragraph 11).


35 – See Ikea Wholesale, C‑351/04 (EU:C:2007:547, paragraphs 61 to 63).


36 – See Nakajima v Council (C‑69/89, EU:C:1991:186, paragraph 86).


37 – See Sharp Corporation v Council (C‑179/87, EU:C:1992:113, paragraph 58).


38 – See Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 62 and the case-law cited).


39 – A number of commentators have highlighted the particularly broad wording of Article 13(1) of the basic regulation. See in particular Van Bael & Bellis, ‘Anti-Dumping and other Trade Protection Laws of the EC’, 4th edition, Kluwer Law International, The Hague, 2004, who comment that that provision ‘is intended to catch all forms of circumvention’ (p. 485). See also Yu, Y., ‘Circumvention and anti-circumvention measures — The impact on anti-dumping practice in international trade’, Kluwer Law International, 2008, who describes the definition of circumvention in EU law as a ‘catchall definition’ (p. 22).


40 – See the Commission’s observations (paragraph 12 and Annex K.1).


41 – EU:C:1989:637.


42 – Paragraph 28.


43 – For the application of such a presumption, see Council Regulation (EC) No 866/2005 of 6 June 2005 extending the definitive anti-dumping measures imposed by Regulation (EC) No 1470/2001 on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republic of China to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2005 L 145, p. 1).