Language of document : ECLI:EU:T:2009:347

JUDGMENT OF THE COURT OF FIRST INSTANCE (Seventh Chamber)

23 September 2009 (*)

(Dumping – Imports of lever arch mechanisms originating in China – Determination of the dumping margin – Market economy treatment – Comparison between the normal value and the export price – Application of a different method to that used during the initial investigation – Article 2(7)(a) and (10) of Regulation (EC) No 384/96)

In Case T‑296/06,

Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, established in Dongguan (China), represented by A. Bentley, QC,

applicant,

v

Council of the European Union, represented by J.‑P. Hix, acting as Agent, assisted by G. Berrisch, lawyer,

defendant,

supported by

Commission of the European Communities, represented by H. van Vliet and T. Scharf, acting as Agents,

and by

IML Industria Meccanica Lombarda Srl, established in Offanengo (Italy),

Interkov spol. s r.o., established in Bráník (Czech Republic),

MI.ME.CA. Srl, established in Ricengo (Italy),

NIKO – kovinarsko podjetje, d.d. Železniki, established in Železniki (Slovenia),

represented by R. Bierwagen, lawyer,

interveners,

APPLICATION for partial annulment of Council Regulation (EC) No 1136/2006 of 24 July 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People’s Republic of China (OJ 2006 L 205, p. 1), in so far as it applies to the applicant,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),

composed of N.J. Forwood (Rapporteur), President, D. Šváby and E. Moavero Milanesi, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 19 February 2009,

gives the following

Judgment

 Legal context

1        The first subparagraph of Article 2(1) of 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) (‘the basic regulation’), as amended, provides:

‘The normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.’

2        According to Article 2(3) of the basic regulation:

‘When there are no or insufficient sales of the like product in the ordinary course of trade, or where because of the particular market situation such sales do not permit a proper comparison, the normal value of the like product shall be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative. …’

3        Article 2(7) of the basic regulation provides:

‘(a)      In the case of imports from non-market economy countries, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Community, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin.

         …

(b)      In anti-dumping investigations concerning imports from the People’s Republic of China, Vietnam and Kazakhstan and any non-market economy country which is a member of the WTO at the date of the initiation of the investigation, normal value will be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c) that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.

…’

4        Article 2(8) of the basic regulation provides:

‘The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Community.’

5        Article 2(10) of the basic regulation provides:

‘A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at as nearly as possible the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. …’

6        Article 6(8) of the basic regulation provides:

‘Except in the circumstances provided for in Article 18 [non-cooperation], the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.’

7        Article 9(4) of the basic regulation provides:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. … The amount of the antidumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.’

 Background to the dispute

 The initial investigation procedure

8        The applicant, Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, is a company governed by Chinese law with its headquarters in Dongguan (China). It manufactures lever arch mechanisms (‘LAMs’) generally used for archiving sheets of paper or other documents in binders or files.

9        The applicant sells all of its production to World Wide Stationery Ltd (‘WWS’) via its principal shareholder, Leco Stationery Manufacturing Co. Ltd (‘LECO’). WWS and LECO are both established in Hong Kong (China). WWS then resells the LAMs manufactured by the applicant to customers on the Chinese market and, also, for export outside China to the European Community and to other non-member countries.

10      On 11 March 2005, a complaint was made to the Commission of the European Communities by three Community producers, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO – kovinarsko podjetje, d.d., Železniki, which together account for more than 50% of the total production of LAMs within the Community. The complaint was supported by IML Industria Meccanica Lombarda Srl. In that complaint, it was alleged that imports of LAMs from China were being dumped and were thereby causing material injury to the Community industry.

11      On 28 April 2005, a notice of initiation of an anti-dumping proceeding concerning imports of LAMs originating in the People’s Republic of China was published, in accordance with Article 5 of the basic regulation, in the Official Journal of the European Union (OJ 2005 C 103, p. 18).

12      Once the procedure had been initiated, the Commission sent questionnaires to all of the parties known to be concerned by the investigation. The applicant completed that questionnaire and then made a request for market economy treatment (MET), pursuant to Article 2(7)(b) and (c) of the basic regulation and, in the alternative, a request for individual treatment (IT), pursuant to Article 9(5) of that regulation. The Commission rejected the applicant’s first request but accepted the second.

13      By e-mail of 16 September 2005, the Commission asked the applicant to assist it in preparing for a visit to Dongguan and Hong Kong, from 17 to 19 October 2005, to enable it to carry out on-the-spot verifications in the context of the investigation. By fax of 4 October 2005, the Commission sent the applicant a formal confirmation of its visit. However, by e-mail of 5 October 2005, the Commission advised the applicant that, due to unforeseen circumstances, it was obliged to cancel the planned visit.

 The provisional regulation and the outcome of the investigation procedure

14      On 26 January 2006, the Commission adopted Regulation (EC) No 134/2006 imposing a provisional anti-dumping duty on imports of LAMs originating in the People’s Republic of China (OJ 2006 L 23, p. 13) (‘the provisional regulation’). That regulation imposed a provisional anti‑dumping duty of 33.3% on imports of LAMs manufactured by the applicant from 28 January 2006, and of 48.1% on all other imports of LAMs originating in China.

15      The normal value of LAMs for exporting producers not granted MET status, such as the applicant, was established, in accordance with Article 2(7)(a) of the basic regulation, on the basis of information received from a producer in an analogue country. The Commission made a provisional finding that Iran was the most appropriate and reasonable choice in that regard. The normal value was thus established as corresponding to the weighted average of the sale price on the domestic market of Iran applied by the Iranian producer in respect of independent customers.

16      The export price for LAMs, for the export sales to the Community of the exporters granted IT which were made via related companies established outside the Community, was determined on the basis of resale prices to independent customers in the Community, in accordance with Article 2(8) of the basic regulation. In particular, the export price of the applicant’s LAMs was established on the basis of the prices applied by WWS to the first independent customer within the Community, with a deduction of 12.6% for certain costs incurred between the factory gate and the Community border (namely, transport, insurance, handling, etc.).

17      Under the provisional regulation, the normal value and the export prices were compared on an ex-factory basis and at the same level of trade. For the purpose of a fair comparison between the normal value and the export price, due account was taken, in accordance with Article 2(10) of the basic regulation, of differences which were claimed and demonstrated to affect prices and their comparability. As regards the applicant, an adjustment was made on the basis of Article 2(10)(i) of the basic regulation, as the export sales were made via a related company established in a country other than the country concerned or outside the Community. That adjustment consisted in a deduction, from the export price of LAMs, of 18.6% for sales, general and administrative (‘SG&A’) expenses of WWS; of 1.8% for those of LECO; and of 5% in respect of a reasonable profit margin.

18      By letter of 3 March 2006, the applicant submitted written observations on the application of the provisional regulation. Amongst other claims, the applicant submitted, first, that it was incorrect to deduct from WWS’s export price a certain amount for SG&A expenses and for the profits of LECO and WWS, because the comparison between the normal value and the export price would not then be made at the same level of trade. It observed, secondly, that errors had been made in the calculation of WWS’s SG&A expenses and, in particular, that certain direct-sales expenses had been counted twice.

19      On 21 April 2006, the applicant set out its views at a hearing. Following that hearing, on 26 April 2006, the applicant submitted additional written observations.

20      By letter of 24 May 2006, the Commission, acting pursuant to Article 20(1) of the basic regulation, provided the applicant with definitive disclosure of the essential facts and considerations on the basis of which it intended to propose the imposition of definitive countervailing duties. By letter of 5 June 2006, the applicant submitted written observations on that document. It also presented oral argument at a hearing held on 21 June 2006. Finally, by letter of 3 July 2006, the Commission replied to the applicant’s observations with additional comments.

 The definitive regulation

21      On 24 July 2006, the Council of the European Union adopted Regulation (EC) No 1136/2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on LAMs originating in the People’s Republic of China (OJ 2006 L 205, p. 1) (‘the definitive regulation’). The definitive dumping margin applicable to the applicant was 27.1%, while for the other manufacturers it was 47.4%.

22      As regards the normal value of LAMs, the Council, in the definitive regulation, stated that, following a further analysis of all the information obtained from the producer in Iran, it had to be concluded that that information was incomplete and/or inconsistent and therefore could not be used as the basis for the calculation of the normal value of the LAMs at the definitive level. Recourse was therefore had to another reasonable basis for the calculation of the normal value in accordance with Article 2(7)(a) of the basic regulation. In that regard, it is stated in the definitive regulation that, due to a lack of information from other non-member countries in which LAMs are produced, the view was taken that the data available from the complaint and from the Community industry constituted the most reasonable basis on which to establish the normal value of LAMs at the definitive level. The definitive regulation further indicates that adjustments were made to reflect specific verified data obtained during the investigation, in particular concerning prices of raw materials and freight.

23      The export price was determined in accordance with the method set out in the provisional regulation (see paragraph 16 above).

24      According to the definitive regulation, the normal value and the export prices were compared at ex-factory level and at the same level of trade. For the purpose of a fair comparison between the normal value and the export price, as regards the applicant, contrary to the first allegation set out in its letter of 3 March 2006, the adjustment to WWS’s export price in accordance with Article 2(10)(i) of the basic regulation was maintained. The Community institutions confirmed their position that the relationship between the applicant, on the one hand, and LECO and WWS, on the other, was similar to that of a trader working on a commissions basis. However, an examination of the applicant’s second allegation in the letter of 3 March 2006, to the effect that some of LECO’s and WWS’s sales expenses had been counted twice, confirmed that a clerical error had been made in the calculation of those expenses. This led to WWS’s deduction for SG&A expenses being reduced from 18.6% to 3.2%. Ultimately, the adjustment effected by the Community institutions consisted in a deduction of 3.2% from the export price, by way of, inter alia, WWS’s direct-sales, administrative and other general expenses, 1.8% for LECO, and 5% as the profit margin for the two companies together.

 Procedure and forms of order sought

25      By application lodged at the Registry of the Court of First Instance on 19 October 2006, the applicant brought the present action.

26      By order of 16 February 2007, the President of the Fifth Chamber granted the Commission leave to intervene in support of the form of order sought by the Council.

27      By order of 19 April 2007, the President of the Fifth Chamber granted IML Industria Meccanica Lombarda Srl, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO kovinarsko podjetje, d.d. Železniki leave to intervene in support of the form of order sought by the Council. On 4 June 2007, they submitted joint written observations.

28      When the Judge-Rapporteur initially designated was prevented from acting, the President of the Court of First Instance, by decision of 18 December 2007, appointed a new Judge-Rapporteur.

29      The applicant claims that the Court should:

–        annul the definitive regulation, in so far as it applies to the applicant;

–        order the Council to pay the costs.

30      The Council contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

31      The Commission, as intervener in the present proceedings, did not submit written observations within the period granted to it.

32      The other interveners contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

33      The applicant puts forward two pleas in law in support of its action. The first alleges infringement of Article 2(10) of the basic regulation, in that the institutions compared the normal value and the export prices of the LAMs at different levels of trade, and infringement of the principles of sound administration and ‘diligent investigation’, in that the institutions failed to carry out an adequate check of the information communicated to them. The second plea alleges infringement of Article 2(7)(a) of the basic regulation, in that the institutions, in the definitive regulation, changed the method for calculating the normal value of LAMs as compared with the provisional regulation, without having very serious grounds on which to do so.

 The first plea: infringement of Article 2(10) of the basic regulation and of the principles of sound administration and ‘diligent investigation’

 The first part: infringement of Article 2(10) of the basic regulation

–       Arguments of the parties

34      The applicant maintains, in essence, that, in making an adjustment for direct-sales, general and administrative expenses, and for LECO’S and WWS’s profits, to the export price of the LAMs produced by it, the institutions compared the normal value and the export price at different levels of trade, thereby infringing Article 2(10) of the basic regulation.

35      The applicant begins by observing that, according to the definitive regulation, the normal value of the LAMs was determined on the basis of the data available in the complaint from the Community industry. The applicant states in this regard that that determination must have been made according to the principles of the basic regulation, in particular those laid down in Article 2(1) and (3) of that regulation. Under those provisions, the normal value of the products should correspond to the price of the products as sold on the domestic market, which must be more than the costs of manufacture plus SG&A expenses.

36      In support of this argument, the applicant cites Case 250/85 BrotherIndustries v Council [1988] ECR 5683, paragraphs 15 to 18, in which the Court of Justice noted that the purpose of constructing normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country. The applicant observes in that regard that the sales price of the LAMs manufactured by it on the Chinese market is WWS’s starting price because, as it stated in a number of sections of the questionnaire sent to it by the Commission at the start of the investigation procedure, WWS sells all of its production, whether destined for China or for export.

37      According to the applicant, it thus follows that the adjustment made by the institutions to WWS’s export prices pursuant to Article 2(10)(i) of the basic regulation, that is to say, a deduction of a margin of 5% for SG&A expenses and of 5% in respect of profits for LECO and WWS, brought those prices to a level equivalent to that at the end of the production chain in China, that is, before sales expenses.

38      Lastly, the applicant maintains that the SG&A expenses incurred by WWS should have been attributed by the institutions not only to its export activities but also to its selling activities in China for the purpose of determining the normal value. The applicant adds that it does not have any selling costs in China, as it merely manufactures to the order of WWS.

39      The Council, the Commission and the other interveners dispute the applicant’s arguments.

–       Findings of the Court

40      It should be borne in mind, as a preliminary point, that in the sphere of measures to protect trade, the institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723, paragraph 40, and Case T‑221/05 Huvis v Council, judgment of 8 July 2008, not published in the ECR, paragraph 38).

41      It is, moreover, settled case-law that, in the sphere of measures to protect trade, review by the Community judicature of assessments made by the institutions must be limited to establishing 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 power (see Case T‑35/01 Shanghai Teraoka Electronic v Council [2004] ECR II‑3663, paragraphs 48 and 49 and case-law cited, and Case T‑300/03 Moser Baer India v Council [2006] ECR II‑3911, paragraph 28 and case-law cited). That limited judicial review covers, in particular, the choice between the different methods of calculating the dumping margin and the assessment of the normal value of a product (see Ikea Wholesale, cited in paragraph 40 above, paragraph 41 and case-law cited).

42      The case-law has further established that it is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may be made only in order to take account of differences in factors which affect the prices and therefore their comparability (Case T‑88/98 Kundan and Tata v Council [2002] ECR II‑4897, paragraph 94). That means, in other words, that the purpose of an adjustment is to re-establish the symmetry between normal value and export price, with the result that, if the adjustment has been validly made, that implies that it has re-established the symmetry between normal value and export price. By contrast, if the adjustment has not been validly made, that implies that it has created an asymmetry between the normal value and the export price (Case T‑249/06 Interpipe Niko Tube and Interpipe NTRP v Council [2009] ECR I-0000, paragraphs 194 and 195).

43      It is in this context that Court must examine the issue whether the level of comparison chosen by the institutions was respected in the calculation of the normal value and the export price and ascertain, subsequently, whether the adjustment made led to a re-establishment of the symmetry in the comparison of those two factors or whether, on the contrary, it resulted in a comparison at different levels of trade.

44      In the present case, it is apparent from recital 22 in the preamble to the definitive regulation that the comparison between the normal value and the export price of the LAMs originating in China was carried out by the institutions at the same level of trade, namely at the ex-factory stage. In particular, as regards the LAMs manufactured by the applicant, it is stated in the letter of 3 July 2006 that both the normal value and the export price of those products were determined before any involvement by any intermediate trader in the sales process, that is, before the involvement of LECO and WWS in the marketing of LAMs manufactured by the applicant.

45      Next, as regards, first, the export price, the Court notes that the applicant does not dispute that the calculation of that price was made in accordance with Article 2(8) of the basic regulation. The applicant acknowledges, with the institutions, that the export price of its LAMs corresponds to the prices applied by WWS to independent customers on the Community market, as provided for in recital 21 in the preamble to the definitive regulation and, by reference to that recital, in recitals 41 and 42 in the preamble to the provisional regulation.

46      As regards, secondly, the normal value, the applicant, by contrast, takes the view that that value ought to have been determined in accordance with Article 2(1) and (3) of the basic regulation and thus correspond to the price of its LAMs as applied by WWS on the Chinese domestic market.

47      In should be borne in mind in that regard that it is apparent from the wording of Article 2(7)(b) of the basic regulation that the determination of the normal value of products originating in China by reference to the rules laid down in Article 2(1) to (6) thereof is confined to specific individual cases in which each of the producers concerned has made a properly substantiated claim in accordance with the criteria and procedures laid down in Article 2(7)(c) of the basic regulation to show that market-economy conditions prevail for them (see, to that effect, Case T‑255/01 Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council [2003] ECR II‑4741, paragraph 40).

48      It is clear in the present case, by contrast, that, according to recital 14 in the preamble to the definitive regulation, the claim submitted by the applicant pursuant to Article 2(7)(b) of the basic regulation was rejected. Accordingly, the normal value of the applicant’s LAMs could not be established as corresponding to the prices of those products on the applicant’s domestic market, namely, the prices applied by WWS on the Chinese market, in so far as it had been determined that they were not the subject of normal market transactions.

49      The Court further notes that the applicant’s reference in this regard to paragraphs 15 to 18 of the judgment in Brother Industries v Council, cited in paragraph 36 above, is not relevant to the present case. In that judgment, although the Court of Justice found that the institutions had correctly calculated the normal value of the imports originating in Japan on the basis of the resale prices applied by the distributor on the domestic market, that assessment was based on the fact that Japan is a market-economy country.

50      Next, the Court notes that, according to recital 17 in the preamble to the definitive regulation, the normal value of the LAMs produced by the applicant was calculated on a reasonable basis in accordance with Article 2(7)(a) of the basic regulation. According to the case-law, the aim of that provision is precisely to prevent account from being taken of prices and costs in non-market-economy countries, as they are not the normal result of market forces (see, by way of analogy, Joined Cases C‑305/86 and C‑160/87 Neotype Techmashexport v Commission and Council [1990] ECR I‑2945, paragraph 26, and Case C‑16/90 Nölle [1991] ECR I‑5163, paragraph 10). As regards, in particular, the applicant’s LAMs, it is apparent from the letter of 3 July 2006 that the normal value was calculated on the basis of the costs of manufacture, administrative expenses and other general costs of similar Community producers and a reasonable profit estimate. No direct sales expenses could be included in that calculation, however, because, as the applicant acknowledges a number of times, including in the answers to the questionnaire sent to the Commission during the investigation and in the letter of 5 June 2006, LECO and WWS were in charge of marketing the applicant’s products.

51      It thus follows from the manner in which the calculation of the normal value of the applicant’s LAMs was carried out, including the non-inclusion in that calculation of the sales expenses, that an imbalance would have occurred in the comparison of the normal value and the export price of the applicant’s LAMs if an adjustment had not been made by the institutions in accordance with Article 2(10) of the basic regulation, consisting in a deduction from the export price of the sales costs arising from the marketing of the applicant’s LAMs on the Community market.

52      Consequently, the Court finds that the institutions did not make a manifest error of assessment in making an adjustment to the export price of the LAMs manufactured by the applicant in accordance with Article 2(10) of the basic regulation.

53      In the light of the foregoing, the first part of the first plea put forward by the applicant must be rejected.

 The second part: infringement of the principle of sound administration and of the principle of ‘diligent investigation’

–       Arguments of the parties

54      The applicant maintains, in essence, that the institutions failed in their duty of sound administration and ‘diligent investigation’ in the examination of the information provided about WWS and LECO for the purpose of determining an export price which could be compared with the normal value in the present case. According to the applicant, that examination would have enabled the Commission to check the nature of the activities of those two companies as compared with its own and the nature of the sales costs incurred by them in such a way that the institutions could determine whether the export price should properly have been measured at the level ex-WWS or ex the applicant’s works.

55      The applicant also criticises the Commission for having cancelled the on-site verification mission at the premises of WWS and LECO which had been scheduled to begin on 17 October 2005. Although the applicant recognises that the reason for that cancellation was that it did not fulfil the conditions for being granted MET status, but only those for IT status, that did not justify a failure to verify the information relating to WWS and LECO. The applicant states that, in the past, the Commission has visited Hong Kong sales companies which marketed products manufactured in China through a related Chinese company where the exporters qualified for IT status.

56      The Council, the Commission and the other interveners dispute the applicant’s arguments.

–       Findings of the Court

57      As a preliminary point, it should be borne in mind that, under Article 6(8) of the basic regulation, the information which is supplied by interested parties and upon which findings are based must be examined for accuracy as far as possible.

58      According to the case-law, moreover, where the Community institutions have a broad power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case T‑167/94 Nölle v Council and Commission [1995] ECR II‑2589, paragraph 73; and Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243, paragraph 63).

59      Next, whilst in the area of commercial defence measures, and anti-dumping measures in particular, the Court cannot intervene in the assessment reserved for the institutions (see paragraphs 40 and 41 above), it is nevertheless for the Court to satisfy itself that the institutions took account of all relevant circumstances and appraised the facts of the matter with all due care, so that the comparison between the normal value and the export price of the LAMs manufactured by the applicant may be regarded as having been made at the same level of trade (see, to that effect and by analogy, Shandong Reipu Biochemicals v Council, cited in paragraph 58 above, paragraph 64 and case-law cited).

60      As regards the applicant’s argument that the institutions ought to have conducted a more diligent verification of the information concerning WWS and LECO in order to understand fully the nature of the activities of those two companies in relation to the applicant, the Court finds that the institutions did not cast doubt on the factual information provided by the applicant during the investigation procedure. The disagreement between the applicant and the institutions related to the application of that information to establish the normal value and the comparison of that value with the export price of the LAMs. It follows, however, from the analysis of the first part of this plea (see paragraphs 40 to 52 above) that the institutions did not infringe Article 2(10) of the basic regulation in making the disputed adjustment to the export price of the applicant’s LAMs. Consequently, a more detailed examination of the data provided by the applicant would not necessarily have led to a change of criteria in the application of those data.

61      Next, as regards the cancellation of the Commission’s originally planned visit to the premises of LECO and WWS, it should be remembered that, in accordance with Article 16 of the basic regulation, the Commission, where it considers it appropriate, is to carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations and to verify information provided on dumping and injury. According to the statement of grounds in the basic regulation, the purpose of those visits is to verify information provided on dumping and injury and, in any event, depend on the quality of the responses received to the questionnaires.

62      It follows from Article 16 of the basic regulation that the on-site verification visits are not obligatory for the Commission, but constitute an option which it may use in order to supplement and confirm the facts of its investigation.

63      In the present case, the Court notes that the Commission did not question the data supplied by the applicant and that it was thus able to conclude that the visit to LECO and WWS was not necessary for the purposes of the investigation; that decision was not an infringement of its obligations of sound administration and ‘diligent investigation’ which follow from Article 6(8) of the basic regulation and from the case-law cited in paragraphs 58 and 59 above.

64      In the light of the foregoing, the second part of the first plea must be rejected.

 The second plea: infringement of Article 2(7)(a) of the basic regulation and of the principles of sound administration and objectivity

–       Arguments of the parties

65      The applicant submits, in essence, that the institutions’ change of method for calculating the normal value of the LAMs, without very serious grounds for doing so, infringes Article 2(7)(a) of the basic regulation and the principles of sound administration and objectivity.

66      The applicant maintains that, since, in the provisional regulation, the Commission explained in detail why the normal value had to be calculated by reference to prices and costs in Iran, pursuant to Article 2(7)(a) of the basic regulation, the institutions would have had to put forward very serious grounds if they intended to disregard the initial grounds and to change completely their reasoning when fixing the definitive duties.

67      The applicant states that, in the definitive regulation, the Commission determined that value on the basis of data available in the complaint and from the Community industry. The applicant adds that the Commission was already in a position to assess whether it was more appropriate to use such data rather than the information provided by the Iranian producer, subject perhaps to refining the adjustments for prices of raw materials and freight at the definitive stage of the investigation.

68      Lastly, the applicant argues that the change in position of the institutions with regard to determination of the normal value had the effect of nullifying the greater part of the advantage which it had obtained as a result of the correction of a clerical error in the determination of the SG&A expenses of WWS. The effect of that correction should have been to reduce the duty from 33.3% to 17.2%. However, according to the applicant, the effect of the change of approach in the determination of normal value was to bring the level of duty to 27.1%.

69      The Council, the Commission and the other interveners dispute the applicant’s arguments.

–       Findings of the Court

70      The Court finds, first of all, that, with respect to the applicant’s argument that the Commission had provided such detailed explanations in the provisional regulation as to why it had calculated the normal value on the basis of information received from a producer in an analogue country, in this case Iran, with the result that very serious grounds ought to have been given in the definitive regulation for the change of method for that calculation, it is clear from recitals 31 to 35 in the preamble to the provisional regulation that the Commission stated precisely that the decision to use the information provided by the Iranian producer for the purposes of the investigation procedure was adopted provisionally (see recital 38 in the preamble to the provisional regulation), given inter alia the scarcity of LAM producers in analogue countries and the difficulty in finding a producer willing to cooperate with it in the investigation procedure.

71      Next, with regard to the applicant’s argument that the Commission was already in a position to assess whether it was more appropriate to use the method for calculating the normal value ultimately adopted in the definitive regulation rather than that used in the provisional regulation, it must be borne in mind that, according to settled case-law, an anti-dumping investigation is an ongoing process during which many findings are constantly revised. It cannot therefore be ruled out that the definitive findings made by the institutions will differ from the findings made at any other stage of the investigation (Case C‑121/86 Epicheiriseon Metalleftikon, Viomichanikon kai Naftiliakon and Others v Council [1989] ECR 3919, paragraphs 34 and 35, and Shanghai Teraoka Electronic v Council, cited in paragraph 41 above, paragraph 182).

72      The Commission must take account of evidence gleaned from the entire administrative procedure and must adopt its final decision on the basis of observations submitted to it in response by the parties and also other findings of fact made throughout the investigation procedure. Consequently, even if, in the present case, the Commission had come to the provisional conclusion that it could choose Iran as an analogue country on the basis of the cooperation of the producer on that domestic market, it may subsequently have formed doubts as to the reliability of the information provided by that producer and, therefore, chosen to change the method of calculating the normal value.

73      Lastly, as regards the applicant’s argument that the institutions’ change of position with regard to the determination of the normal value had the effect of disappointing its expectations as to the reduction of the dumping margin, it must be remembered that the provisional regulation does not constitute an act adversely affecting a person concerned or conferring rights (see, to that effect and by analogy, Case T‑206/07 Foshan Shunde Yongjian Housewares & Hardware v Council [2008] ECR II‑1, paragraph 53) and that the only limitation placed on the amount of the anti-dumping margin at the time of adoption of the definitive regulation in relation to the provisional regulation is that laid down by Article 9(4) of the basic regulation. Under that provision, the amount of the anti-dumping duty may not exceed the margin of dumping established in the provisional regulation and should be less than that margin if such lesser duty would be adequate to remove the injury to the Community industry.

74      In the present case, the Court find that the limits laid down in Article 9(4) of the basic regulation were complied with, inasmuch as the margin of the anti-dumping duty established in the definitive regulation is lower than that established in the provisional regulation. Accordingly, the fact that the reduction in the anti-dumping margin anticipated by the applicant on the basis of the provisional regulation did not materialise is not such as in itself to make the definitive regulation unlawful.

75      Consequently, the Court finds that the institutions did not infringe Article 2(7)(a) of the definitive regulation or the principles of sound administration and objectivity.

76      In the light of the foregoing, the applicant’s second plea must be dismissed and, therefore, also the action in its entirety.

 Costs

77      Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(4) of those Rules, Member States and institutions which intervened in the proceedings are to bear their own costs.

78      Since the applicant has been unsuccessful and the Council and the interveners other than the Commission have applied for costs, the applicant must be ordered to bear its own costs and to pay those incurred by the Council and those interveners. The Commission must bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, to bear its own costs and to pay those incurred by the Council of the European Union, IML Industria Meccanica Lombarda Srl, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO – kovinarsko podjetje, d.d. Železniki;

3.      Orders the Commission of the European Communities to bear its own costs.

Forwood

Šváby

Moavero Milanesi

Delivered in open court in Luxembourg on 23 September 2009.

[Signatures]


* Language of the case: English.