OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 2 September 2021 (1)
Case C‑226/20 P
Eurofer, European Steel Association, AISBL
v
European Commission
(Appeal – Dumping – Implementing Regulation (EU) 2017/1795 – Imports of hot-rolled flat products of iron, non-alloy or other alloy steel – Termination of the proceedings against imports originating in Serbia – Regulation (EU) 2016/1036 – Articles 3(4)(a) and 9(2) and (3) – Determination of injury – Cumulative assessment of the effects of imports from more than one country – Whether the volume of imports from a given country is ‘negligible’ – Termination of the proceedings – Article 20(2) – Infringement of the rights of the defence)
1. In an anti-dumping investigation, may the European Commission regard as ‘negligible’ a volume of imports into the European Union from a given country that represents a market share of 1.04%, which is thus above, albeit only slightly, the threshold of 1%? In such circumstances may the Commission consequently decide not to assess the effect of the imports from that country cumulatively with the imports from the other countries under investigation and, accordingly, decide to terminate the investigation with regard to the imports from the country in question?
2. Those are, in essence, the questions which the Court of Justice must address in the present case, which concerns the appeal by which Eurofer, European Steel Association, AISBL (‘Eurofer’) seeks the setting aside of the judgment of the General Court of the European Union of 12 March 2020, Eurofer v Commission (‘the judgment under appeal’), (2) by which the General Court dismissed Eurofer’s action for the partial annulment of Implementing Regulation (EU) 2017/1795 (3) (‘the regulation at issue’), by which the Commission terminated the anti-dumping investigation with regard to imports into the European Union of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Serbia.
I. Legal framework
3. Article 3 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (‘the Basic Regulation’), (4) headed ‘Determination of injury’, provides, in paragraphs 3 and 4 thereof, as follows:
‘3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.
4. Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports shall be cumulatively assessed only if it is determined that:
(a) the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and the volume of imports from each country is not negligible; and
(b) a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Union product.’
4. Article 5(7) of the Basic Regulation provides:
‘The evidence of both dumping and injury shall be considered simultaneously in the decision on whether or not to initiate an investigation. A complaint shall be rejected where there is insufficient evidence of either dumping or of injury to justify proceeding with the case. Proceedings shall not be initiated against countries whose imports represent a market share of below 1%, unless such countries collectively account for 3% or more of Union consumption.’
5. Article 9 of the Basic Regulation provides, in paragraphs 2 and 3 thereof, as follows:
‘2. Where protective measures are unnecessary, the investigation or proceedings shall be terminated. …
3. For proceedings initiated pursuant to Article 5(9), injury shall normally be regarded as negligible where the imports concerned represent less than the volumes set out in Article 5(7). For the same proceedings, there shall be immediate termination where it is determined that the margin of dumping is less than 2%, expressed as a percentage of the export price, provided that it is only the investigation that shall be terminated where the margin is below 2% for individual exporters and they shall remain subject to the proceedings and may be reinvestigated in any subsequent review carried out for the country concerned pursuant to Article 11.’
6. Article 20(1) and (2) of the Basic Regulation provides as follows:
‘1. The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.
2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.’
II. The facts and the regulation at issue
7. The facts of the case are set out in paragraphs 1 to 12 of the judgment under appeal, to which I would refer you for further details. For the purposes of the present proceedings, I would confine myself to noting that, further to a complaint lodged by Eurofer on 23 May 2016, the European Commission initiated an anti-dumping investigation with regard to imports into the European Union of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Brazil, Iran, Russia, Serbia and Ukraine. The investigation covered the period between 1 July 2015 and 30 June 2016 (‘the investigation period’).
8. The investigation was terminated by the Commission’s adoption of the regulation at issue on 5 October 2017.
9. It is clear from recitals 232 to 236 of the regulation at issue, summarised in paragraphs 52 to 58 of the judgment under appeal, that, in that regulation, the Commission took the view that the volumes of imports from Serbia were ‘negligible’, within the meaning of Article 3(4) of the Basic Regulation, for the reason that they had decreased in the investigation period and represented a market share of just 1.04%. In recital 232 of the regulation at issue, the Commission made the following observation: ‘it is the Commission’s practice to consider “negligible” a market share below the 1% threshold established by the Basic Regulation at initiation stage. However, the Commission found in this case that 1.04% is still negligible because 0.04% should be regarded as immaterial, in particular when, in relative terms, Serbian import volumes are considerably lower than the volumes from each of the four other countries. Indeed, Serbia’s import volumes were almost half the volumes from Brazil, the second lowest country in terms of import volumes.’
10. The Commission then rejected Eurofer’s argument that the imports from Serbia should have been assessed cumulatively with the imports from the other countries, since they had exceeded the 1% de minimis threshold. On this point, the Commission drew the following conclusion in recital 234 of the regulation at issue:
‘The decision as to whether or not imports should be assessed cumulatively must be based on all the criteria set out in Article 3(3) of the Basic Regulation. Article 3(4) of the Basic Regulation does not accord any particular weight to any of these individual criteria. While it is true that imports from a country cannot be cumulated if their volume is negligible, the converse does not mean that they ipso facto do have to be cumulated. Moreover, the Basic Regulation does not explicitly fix any negligibility thresholds. While Article 5(7) of the Basic Regulation may serve as guidance concerning negligible import volumes, Article 3(4) does not incorporate by reference these thresholds. Rather, the wording gives sufficient flexibility to the Commission to carry out a case-by-case analysis taking into account that the “extra” volumes of 0.04% were immaterial.’
11. The Commission then observed, in recital 235 of the regulation at issue, that Serbian export prices were different from the exporting prices of the four other countries concerned, inasmuch as, first, ‘even if the Serbian average sales prices [had] also decreased during the period considered, their average sales price during the investigation period [was] the highest during the investigation period, and significantly higher than the average sales prices for Brazil, Iran, Russia and Ukraine’ and, secondly, ‘the Serbian average sales prices [had] been significantly higher than the average sales prices of the four other countries concerned’.
12. The Commission added, in recital 236 of the regulation at issue, that ‘the price setting, combined with the negligible volume, [suggested] that the Serbian exporting producer [was] rather a price follower than a price setter for the product concerned’. In its view, ‘this [was] also exemplified by the fact that its price decrease between 2015 and the investigation period [was] lower also in relative terms, compared to the price decrease of the four other countries concerned’.
13. Article 2 of the regulation at issue provides that ‘the anti-dumping proceeding concerning imports into the Union of the product concerned originating in Serbia is hereby terminated in accordance with Article 9(2) of the Basic Regulation’.
III. The procedure before the General Court and the judgment under appeal
14. By application lodged at the Registry of the General Court on 29 December 2017, Eurofer brought an action for the annulment of Article 2 of the regulation at issue.
15. By order of 12 July 2018, the President of the Eighth Chamber of the General Court granted HBIS Group Serbia Iron & Steel LLC Belgrade (‘HBIS’) leave to intervene.
16. Before the General Court, Eurofer put forward three pleas in law in support of its action. By its first plea, Eurofer alleged that the Commission had erred in deciding not to subject the Serbian imports to cumulative assessment in accordance with Article 3(4) of the Basic Regulation. By its second plea, Eurofer alleged that the Commission had erred in finding that protective measures against the Republic of Serbia were unnecessary. By its third plea, Eurofer argued that, in refusing to disclose data on undercutting and underselling in relation to the Serbian exporter, the Commission had infringed: (i) Article 20(2) of the Basic Regulation; (ii) its right to disclosure and its rights of defence; and (iii) the right to sound administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.
17. In the judgment under appeal, the General Court began by addressing the Commission’s arguments concerning the admissibility of Eurofer’s action and found that, in this case, it was justified in considering the dismissal of the action on the merits without first ruling on its admissibility, in accordance with the line of case-law commencing with the judgment of 26 February 2002, Council v Boehringer (C‑23/00 P, EU:C:2002:118; ‘the judgment in Boehringer’).
18. As regards the merits, the General Court dismissed all three of the pleas in law put forward by Eurofer and consequently dismissed the action in its entirety.
IV. The procedure before the Court of Justice and the forms of order sought
19. By its appeal, Eurofer asks the Court of Justice to set aside the judgment under appeal and to annul Article 2 of the regulation at issue; in the alternative, to refer the case back to the General Court; and to order the Commission and HBIS to pay the costs of the appeal and of the procedure before the General Court.
20. The Commission asks the Court to set aside the judgment under appeal and to find the action at first instance inadmissible; to dismiss the appeal; and to order Eurofer to pay the costs of the procedure before the General Court and of the appeal.
21. HBIS asks the Court to dismiss the appeal and to order Eurofer to pay the costs it incurred in relation both to the procedure at first instance and to the appeal.
22. By order of 2 September 2020, Eurofer v Commission (C‑226/20 P, not published, EU:C:2020:669), the President of the Court granted Eurofer’s application for confidential treatment vis-à-vis HBIS, of the information set out in Annex A.4 to its appeal, corresponding to the information which had already been treated as confidential and was annexed to its application at first instance.
V. Analysis of the appeal
23. In support of its appeal, Eurofer raises four grounds of appeal. By the first, it alleges that the General Court erred in law by interpreting Article 3(4) of the Basic Regulation as meaning that the Commission may regard as ‘negligible’ a volume of imports that represents a market share exceeding 1%. By its second ground of appeal, Eurofer alleges that the General Court’s assessment that the volume of imports from Serbia was ‘negligible’ for the purposes of Article 3(4) of the Basic Regulation is vitiated by errors and by distortion of the evidence. By its third ground of appeal, Eurofer argues that the General Court made a number of errors in finding that ‘protective measures’ as referred to in Article 9(2) of the Basic Regulation were unnecessary. By its fourth ground of appeal, Eurofer argues that the General Court erred in law in finding that the Commission was not required to disclose to it the data on undercutting and underselling.
24. Before examining the substance of the grounds of appeal which Eurofer raises against the judgment under appeal, it is necessary to analyse certain arguments put forward by the Commission, which it had previously raised before the General Court in connection with the admissibility of the action at first instance.
A. The admissibility of the action at first instance
25. In its response, by way of a preliminary matter, the Commission observes that it had argued before the General Court that the action at first instance was inadmissible. It reiterates its arguments that the application was inadmissible for two reasons: first, Article 2 of the regulation at issue cannot be severed from the remainder of that regulation; (5) secondly, being a non-profit association established under Belgian law, Eurofer failed to demonstrate to the requisite standard that it was directly and individually concerned by the regulation at issue, within the meaning of the fourth paragraph of Article 263 TFEU.
26. Taking the view that the parties have already had sufficient opportunity to debate before the General Court the issues of admissibility which it raised, the Commission asks the Court to rule on those issues, on which the General Court did not rule, to rule the action at first instance inadmissible and to set aside the judgment under appeal.
27. In this connection, I would observe that, in paragraphs 31 to 33 of the judgment under appeal, the General Court applied the precedent set in the judgment in Boehringer and expressly decided that, in the case before it, it was justified in examining the merits of the action without ruling on admissibility.
28. As regards the Commission’s request that the judgment under appeal be set aside, to the extent that that request is to be understood as a cross-appeal, it is, in my view, inadmissible. That is not only on account of a procedural error, (6) but also, as I have recently had occasion to point out, because, when the General Court decides to apply the judgment in Boehringer and not to rule on the admissibility of the action at first instance, it does not adopt any decision amenable to appeal, not even an implied decision, on admissibility, such that neither a main appeal nor a cross-appeal may be brought regarding that admissibility. (7)
29. To the extent that the Commission’s request is instead to be understood as a request for a substitution of grounds or as an invitation to the Court to find, of its own motion, the action at first instance inadmissible, I would point out that it is clear from settled case-law that, when the Court is hearing an appeal under Article 56 of the Statute of the Court of Justice of the European Union, it is required, if need be of its own motion, to adjudicate on the admissibility of an action for annulment and, therefore, on the public-policy plea based on non-compliance with the condition set out in the fourth paragraph of Article 263 TFEU, according to which an applicant may seek annulment of a decision not addressed to it only if it is directly and individually concerned by it. (8)
30. However, it is also clear from the case-law that it is for the Court of Justice to assess whether, in the circumstances of the case, the proper administration of justice justifies its dismissing the action on the merits without first ruling on questions of admissibility. (9)
31. In this case, I think that that justification based on considerations of procedural economy is present. Indeed, it will be clear from the considerations that follow regarding the merits of the appeal that, in my view, it must be dismissed and, more specifically, that this is not a case in which it will be necessary for the Court, after upholding the appeal and setting aside the judgment under appeal, to decide to dispose of the case before the General Court and decide on the merits of the action by upholding it. (10)
B. Merits
1. The first ground of appeal, alleging incorrect interpretation of Article 3(4)(a) of the Basic Regulation
32. By its first ground of appeal, which challenges paragraphs 67 to 80 of the judgment under appeal, Eurofer claims that the General Court erred in law by interpreting Article 3(4) of the Basic Regulation as meaning that the Commission may regard as ‘negligible’, for the purposes of that provision, a volume of imports from a given country that represents a market share exceeding 1%.
(a) The judgment under appeal
33. In the judgment under appeal, the General Court dismissed the first plea in law, by which Eurofer had claimed that the Commission had erred in deciding not to assess the Serbian imports cumulatively with the imports from the other countries concerned, in accordance with Article 3(4) of the Basic Regulation, having taken the view that they were negligible, within the meaning of point (a) of that provision, even though they represented a market share exceeding 1%.
34. On this point, the General Court began by stating, first, that, as regards the second condition laid down by Article 3(4)(a) of the Basic Regulation – namely the condition that the volume of imports must not be negligible – that provision makes no cross-reference either to Article 5(7) or to any other provision of the regulation. Secondly, the General Court pointed out that Article 5(7) and Article 3(4) of the Basic Regulation concern different stages of the investigation. Indeed, while Article 5(7) refers to the situation where proceedings have not yet been initiated, Article 3(4) concerns the situation in which an investigation has already been commenced. (11)
35. The General Court inferred from that that, while Article 5(7) of the Basic Regulation could serve as guidance as to what volumes of imports could be considered negligible, that did not however mean that, in the context of Article 3(4) of the Basic Regulation, imports from a given country which represented a market share exceeding 1% could not be regarded as negligible. (12)
36. The General Court then held that neither the previous decision-making practice of the EU institutions nor an explanatory note which the Commission addressed to the World Trade Organisation (WTO) in 2000, (13) on both of which Eurofer had relied, decisively called into question the legality of the regulation at issue. (14)
37. On the basis of those considerations, the General Court concluded that the Commission had made no manifest error of assessment in taking the view in the present case that the volume of imports from Serbia remained negligible, within the meaning of Article 3(4)(a) of the Basic Regulation, despite the increase in the level of those imports from 0.48% in 2013 to 1.04% during the investigation period. (15)
(b) Arguments of the parties
38. Eurofer argues that the reasoning of the General Court which I have just set out is vitiated in that it is based on an incorrect interpretation of Article 3(4) and Article 5(7) of the Basic Regulation. According to Eurofer, those provisions, understood correctly, do not confer any discretion on the Commission to consider imports which represent a market share in excess of 1% as ‘negligible’.
39. In the first place, Eurofer maintains that it is clear from the case-law that there is a complementary relationship between Article 3(4) and Article 5(7) of the Basic Regulation, in the sense that the latter provision is intended to make explicit the circumstances in which the share of the imports into the European Union is too small for those imports to be regarded as causing dumping. (16) Thus, the proper interpretation of Article 3(4) of the Basic Regulation is that the 1% threshold referred to in Article 5(7) of that regulation is a binding threshold for the purposes of assessing whether the volume of imports is ‘negligible’. That interpretation is confirmed both by the Commission’s decision-making practice, as set out in the examples cited in paragraphs 73 and 74 of the judgment under appeal, and by the abovementioned explanatory note of 2000.
40. In the second place, the General Court gave no convincing reasons in the judgment under appeal to support the interpretation which it adopted. The absence of any express cross-reference between the two provisions does not mean that they cannot be read together. The fact that Article 5(7) of the Basic Regulation applies at the stage of initiation of proceedings is not a logical reason for which the 1% threshold should not apply at a subsequent stage. It would instead be more logical for the same rules to apply at both stages of the proceedings, as is the case with other provisions of the Basic Regulation. As regards the reference to the Commission’s discretion, Eurofer maintains that the question whether or not imports from a particular country exceed the 1% threshold is a binary question that does not entail a complex analysis. The two cases which the General Court mentioned in paragraph 79 of the judgment under appeal in support of its interpretation are different from the present case and cannot, therefore, provide support for the General Court’s analysis.
41. In the third place, the approach, taken by the General Court in the judgment under appeal, according to which imports representing a market share in excess of 1% may be regarded as ‘negligible’, is, according to Eurofer, contrary to the principle of legal certainty. If, as the General Court held, the threshold up to which a volume of imports could be considered negligible in accordance with Article 3(4)(a) of the Basic Regulation were not fully aligned with the threshold laid down in Article 5(7) of that regulation, for the reason that they related to different stages in the proceedings, then there would also be uncertainty with regard to the applicability of the 3% threshold laid down in the latter provision. That could, according to Eurofer, have the absurd consequence that an investigation could be initiated but not concluded. In addition, a threshold in relation to which the Commission enjoyed a broad discretion and in respect of which judicial review was limited would lead to uncertainty, in that it would be unclear where the limit lay for finding a volume of imports ‘negligible’. That would also lead to increased political pressure in anti-dumping investigations.
42. The Commission submits that Eurofer’s first ground of appeal is ineffective. The Commission and HBIS in any event dispute the merits of the arguments put forward by Eurofer.
(c) Assessment
43. I must begin by observing that, as the General Court pointed out, (17) Article 3(4) of the Basic Regulation – which, by its first ground of appeal, Eurofer alleges has been interpreted incorrectly – envisages, in points (a) and (b) thereof, three conditions which must all be met in order for a cumulative assessment of the effects of imports from more than one country that are simultaneously the subject of an anti-dumping investigation to be permitted in the determination of injury to the EU industry. In the first place, the dumping margin must be more than de minimis, as defined in Article 9(3) of the Basic Regulation; in the second place, the volume of imports from each country must not be negligible; in the third place, a cumulative assessment of the effects of the dumped imports must be appropriate in light of the conditions of competition. If, however, one of those three conditions is not met, that is sufficient to preclude a cumulative assessment.
44. Eurofer maintains that the General Court incorrectly interpreted the second of those conditions, namely the condition relating to the non-negligible volume of the imports. In its view, the provision which lays down that condition – the second limb of Article 3(4)(a) of the Basic Regulation – should be read together with Article 5(7) of the Basic Regulation, which provides that proceedings are not to be initiated against countries whose imports represent a market share of less than 1%. It follows, according to Eurofer, that a volume of imports in excess of 1% cannot be considered ‘negligible’.
45. First of all, I consider that the Commission’s objection that the first ground of appeal is ineffective because Eurofer has failed to challenge paragraphs 63 to 66 of the judgment under appeal, in which the General Court gave its interpretation of Article 3(4)(a) of the Basic Regulation, should be dismissed. Indeed, although, in its appeal, Eurofer expressly mentions only paragraphs 67 to 80 of the judgment under appeal as being the subject of its challenge, there can be no doubt that, in the context of its first ground of appeal, it means to challenge the General Court’s entire line of reasoning in the judgment under appeal regarding the interpretation of the provision in question.
46. That said, I do not, however, endorse the interpretation of the second limb of Article 3(4)(a) of the Basic Regulation which Eurofer puts forward, and consider that the General Court made no error of law in its interpretation of that provision in the judgment under appeal.
47. I must first of all point out in this connection that, from a literal viewpoint, as the General Court rightly observed and as Eurofer itself has acknowledged, (18) the second limb of Article 3(4)(a) of the Basic Regulation, which relates to the second condition, makes no cross-reference to any other provision of the Basic Regulation and simply requires, in order for the condition to be met, that the volume of imports from each country should not be ‘negligible’, without further defining that term.
48. While it is true that that literal finding, which is merely one indication, does not necessarily mean, in and of itself, that the provision in question cannot be interpreted in conjunction with another provision of the Basic Regulation, it does however acquire weight in light of the systematic finding that, by contrast with that provision, the first limb of Article 3(4)(a) of the Basic Regulation, which defines the first condition (relating to the dumping margin), does make an express cross-reference to the de minimis level provided for in Article 9(3) of the regulation, which is 2%.
49. Those considerations, literal and systematic, demonstrate, in my view, the legislature’s intention to leave the Commission with a certain margin of discretion in determining whether or not the volume of imports is negligible, and so whether or not a cumulative assessment of the effects of imports from more than one country that are simultaneously the subject of an anti-dumping investigation is permitted.
50. Moreover, the recognition of a certain margin of discretion in this regard is, as the General Court rightly observed, (19) consistent with the discretion which, in the settled case-law of the Court of Justice, the EU institutions are recognised as having in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, by reason of the complexity of the economic and political situations which they have to examine. (20) As I have had occasion to point out only recently, the Court of Justice has expressly acknowledged that that broad discretion extends, in particular, to the determination of the existence of injury caused to the EU industry. (21)
51. I should, however, add that the fact that such a margin of discretion exists does not mean that it is limitless. As the General Court pointed out in paragraphs 67 and 78 of the judgment under appeal – and as is clear, moreover, from the EU institutions’ decision-making practice, as mentioned in paragraphs 73, 74, 75 and 79 of the judgment under appeal – the threshold laid down in Article 5(7) of the Basic Regulation may provide guidance and serve as a point of reference in determining whether or not the volume of imports is negligible, for the purposes of a cumulative assessment of effects under Article 3(4) of the Basic Regulation. However, the Commission may not, in principle, substantially disregard that threshold and must, in any event, explain the reasons for which, in a given instance, the circumstances of the case warrant a departure from that threshold. Nevertheless, that does not imply, in my view, that that guideline threshold constitutes a strict and immutable threshold above which the Commission will be legally prevented from concluding that imports subject to an anti-dumping investigation and originating in a given country are negligible.
52. In my view, it is in that sense that the complementary relationship between the two provisions in question, noted in the General Court’s judgment of 25 January 2017, Rusal Armenal v Council (T‑512/09 RENV, EU:T:2017:26), (22) to which Eurofer has referred, must be understood. In that judgment, the General Court concluded that the Council had not made an error of law ‘in taking into account’ the 1% threshold mentioned in Article 5(7) of the Basic Regulation, for the purposes of interpreting the condition relating to the non-negligible nature of imports set out in Article 3(4)(a) of the Basic Regulation. That judgment therefore confirms that the 1% threshold is an indicative threshold to be ‘taken into account’, and not necessarily a peremptory rule.
53. That interpretation, moreover, is corroborated by the fact, to which the General Court rightly alluded in the judgment under appeal, that the provisions of Article 3(4) and those of Article 5(7) of the Basic Regulation pursue different procedural objectives and indeed must be applied at different stages of the proceedings, which militates in favour of the recognition of a complementary relationship between them that is not rigid.
54. The accuracy of the General Court’s interpretation of the provision in the second limb of Article 3(4)(a) of the Basic Regulation is not, in my view, called into question by the other arguments which Eurofer has raised.
55. In the first place, I would note that the General Court’s observations about decision-making practice set out in paragraph 76 of the judgment under appeal are consistent with the Court of Justice’s case-law on the subject, from which it is clear that the lawfulness of a regulation which, as in the present case, terminates the proceedings without imposing anti-dumping duties, must be assessed in the light of the relevant legal rules and, in particular, the provisions of the Basic Regulation, not on the basis of the alleged previous decision-making practice of the EU institutions. (23)
56. In addition, the General Court’s findings regarding the scope of the explanatory note of 2000 are also free of error and consistent with the case-law. (24) Indeed, the General Court rightly pointed out that that note does not constitute a document by means of which the Commission meant to impose a limit on the exercise of its own discretion.
57. In the second place, Eurofer’s arguments that the interpretation adopted by the General Court would give rise to problems of legal certainty are unconvincing. First, as I observed in point 51 above, the discretion which the Commission enjoys in the application of the provision in the second limb of Article 3(4)(a) of the Basic Regulation is not limitless, and the institution is required to take account of the threshold laid down in Article 5(7) of the Basic Regulation as a point of reference. Secondly, it must be noted that, as the Commission has observed, it is the interpretation of the second limb of Article 3(4)(a) of the Basic Regulation proposed by Eurofer that is the more likely to undermine the effectiveness of that provision. Indeed, as the Commission has pointed out, if the provision in Article 3(4)(a) of the Basic Regulation were to apply exclusively to volumes of imports from a given country that are below the 1% threshold, it would almost never apply, because it would not even be possible to initiate proceedings in respect of such imports.
58. It follows from all the foregoing considerations that, in my view, the first ground of appeal raised by Eurofer should be dismissed.
2. The second ground of appeal, concerning the assessment that the volume of imports from Serbia was ‘negligible’ for the purposes of Article 3(4)(a) of the Basic Regulation
59. By its second ground of appeal, which is divided into three parts and challenges paragraphs 81 to 84 of the judgment under appeal, Eurofer argues that the General Court made errors of law, a manifest error of assessment and distorted the evidence by confirming the Commission’s conclusion that, in the present case, the volume of imports from Serbia was ‘negligible’ for the purposes of Article 3(4) of the Basic Regulation.
(a) The judgment under appeal
60. In the judgment under appeal, in the context of its analysis of the first plea in law raised by Eurofer, after concluding that the Commission had not committed a manifest error of assessment in taking the view that the volume of imports from Serbia had remained ‘negligible’ within the meaning of Article 3(4)(a) of the Basic Regulation, despite exceeding the 1% threshold, the General Court went on to hold that the Commission had been ‘fully entitled to consider, in recital 248 of the [regulation at issue], that the fact that Serbian average sales prices during the [investigation period had been] significantly higher than those of the other four countries concerned was an indication that that low volume of imports could not cause injury to the EU industry’. (25)
61. The General Court held that the issue of whether a volume of imports is negligible cannot be reduced to a simple issue of how great that volume is, but rather extends to its quality, that is to say, to other factors which indicate the effects which those imports are capable of having. Therefore, according to the General Court, the Commission had been right to conclude that, where the prices associated with imports from a country, the volume of which represents an insignificant market share, are high, that fact alone can support a finding that those imports are negligible, without it being necessary to analyse their prices in more detail, as claimed by Eurofer. (26)
(b) Arguments of the parties
62. Eurofer takes issue with that analysis. In the first part of its second ground of appeal, it submits that the General Court erred in law by including price elements in the assessment of whether the volume of imports was negligible, which, it alleges, is solely a quantitative assessment relating to the volume of the imports. A price analysis has no part in that assessment and is relevant only to the third condition laid down in Article 3(4) of the Basic Regulation, which relates to the conditions of competition. The Basic Regulation drew a clear distinction between these two aspects, and the case-law confirms that approach.
63. By the second part of its second ground of appeal, which it raises in the alternative in the event that the Court finds that price analysis can play a role in the assessment of whether import volumes are negligible, Eurofer submits that the General Court in any event made an error of law by failing to have regard to other factors which indicated more precisely the potentially harmful effects that the Serbian imports might have had on the EU industry. More specifically, in its analysis, the Commission disregarded undercutting and underselling, which, as is clear from Article 3(3) of the Basic Regulation, are relevant to that analysis. The Commission thus failed to take all the relevant evidence into consideration, contrary to what is required by the case-law. As a result, by confirming the approach taken by the Commission, the General Court erred in law.
64. By the third part, Eurofer submits that the General Court made a manifest error of assessment and distorted the evidence by finding that the average prices associated with a volume of imports representing an insignificant market share could support a finding that that volume of imports is negligible. Indeed, according to Eurofer, while it is true that the average price of the imports from Serbia was higher than that of imports from other countries, the evidence in the case file nevertheless showed that the average price charged by the sole Serbian exporting producer under investigation was practically the same as that charged by a Russian exporter and a Brazilian exporter on which the Commission did, however, impose anti-dumping duties. The General Court therefore made a manifest error of assessment and distorted the evidence by basing its analysis on average prices and concealing the fact that the undercutting and underselling practiced by the Serbian producer were similar to those practiced by the other two producers mentioned.
65. The Commission maintains that the second ground of appeal is ineffective in its entirety and that the third part is inadmissible in part. The Commission and HBIS in any event dispute the merits of this ground of appeal.
(c) Assessment
66. It is appropriate first of all to analyse the Commission’s argument that the second ground of appeal is ineffective in its entirety. The Commission in fact considers that paragraphs 81 to 84 of the judgment under appeal, against which this ground of appeal is directed, contain reasoning that was included merely for the sake of completeness but was not necessary to support the legality of the General Court’s finding that the imports from Serbia did have to be considered negligible for the purposes of Article 3(4)(a) of the Basic Regulation. That is demonstrated by the words ‘in addition’ and ‘support a finding’, which the General Court used in paragraphs 81 and 83 of the judgment under appeal, respectively.
67. I would point out in this connection that, as stated in point 61 above, in paragraph 82 of the judgment under appeal the General Court held that the issue of whether a volume of imports is negligible within the meaning of Article 3(4)(a) of the Basic Regulation cannot be reduced to a simple issue of how great that volume is, but rather extends to its quality, that is to say, to other factors which indicate the effects which those imports are capable of having.
68. By its second ground of appeal, Eurofer essentially calls into question both the legitimacy of that approach and its application.
69. By the first part of the second ground of appeal, Eurofer calls the legitimacy of that approach into question by arguing that the General Court erred in law by including qualitative price elements in the assessment of whether the volume of imports was negligible, which, in Eurofer’s view, is a purely quantitative assessment relating to the volume of the imports.
70. However, it is clear from my analysis of the first ground of appeal that the General Court did not in err in law by concluding, in paragraph 80 of the judgment under appeal, that the Commission had not made a manifest error of assessment when, in the exercise of its discretion, it took the view that, in the present case, the volume of imports from Serbia remained negligible despite the fact that, quantitatively, it stood at 1.04% during the investigation period.
71. Consequently, even if the first part of the second ground of appeal is upheld and the Court establishes that the Commission’s analysis, under the second limb of Article 3(4)(a) of the Basic Regulation, of whether the volume of imports is negligible must be a purely quantitative analysis, and the General Court consequently made an error in that regard in paragraphs 81 to 84 of its judgment, that finding would not call into question the conclusion which the General Court reached in paragraph 80 of the judgment under appeal.
72. It follows, in my view, that the first part of the second ground of appeal is indeed ineffective, as the Commission has argued.
73. This part of the second ground of appeal is, in any event, also unfounded, in my view. Indeed, the second limb of Article 3(4)(a) of the Basic Regulation stipulates no particular analytical method for determining whether the imports from a given country are negligible for the purposes of the cumulative assessment of their effects together with the effects of imports from other countries that are simultaneously subject to an anti-dumping investigation.
74. It follows that, within the limits of the discretion which it enjoys, in accordance with the case-law which I mentioned in point 50 above, the Commission is free to evaluate those factors which it considers relevant to its assessment of whether a volume of imports is negligible in any given case.
75. Accordingly, the General Court’s finding, in paragraph 82 of the judgment under appeal, that that assessment may extend to qualitative aspects of the volume of the imports in question, and therefore include an examination of other factors which indicate the effects which those imports are capable of having, is not vitiated by any error of law.
76. As regards the second and third parts of the second ground of appeal, however, I do not consider that they are ineffective. Indeed, once it is established that the analysis under the second limb of Article 3(4)(a) of the Basic Regulation of whether the volume of imports is negligible may extend to qualitative elements associated with the prices of the imports, it cannot be ruled out that the finding of an error on the General Court’s part in its appraisal of the analysis which the Commission carried out in this particular case could lead to the setting aside of the judgment under appeal.
77. That said, I do, however, consider that both the second and the third part of the second ground of appeal should be dismissed on the merits.
78. As regards the second part, Eurofer criticises the General Court for not finding that the Commission should, as part of its analysis, have considered undercutting and underselling. However, I would point out in this connection, first, that there is nothing in the second limb of Article 3(4)(a) of the Basic Regulation to suggest that the Commission is under any obligation to analyse undercutting and underselling in its determination of whether the volume of imports from a given country is negligible for the purposes of the cumulative assessment of the effects of imports from more than one country that are simultaneously the subject of an anti-dumping investigation. Secondly, as the Commission has pointed out, the analysis under Article 3(4), concerning the possibility of carrying out a cumulative assessment occurs at an earlier stage than the substantive injury assessment under Article 3(2) and (3) of the Basic Regulation. Accordingly, Eurofer’s reference to Article 3(3) of the Basic Regulation is not relevant in this context.
79. It follows that, in my view, the General Court made no error of law in finding, in paragraph 83 of the judgment under appeal, that, within the limits of the discretion which, in the case-law mentioned in point 50 above, it is recognised as having, the Commission was entitled to conclude that, where the prices associated with imports from a country, the volume of which represents an insignificant market share, are high, that fact alone can support a finding that that volume is negligible, without it being necessary to analyse those prices in more detail.
80. With regard to the third part of the second ground of appeal, it contains two complaints – one alleging a manifest error of assessment and the other alleging distortion of the evidence.
81. As regards the first of those complaints, in which it is alleged that the evidence in the case file shows that the average price charged by the sole Serbian exporting producer was practically the same as that charged by a Russian exporter and a Brazilian exporter, I consider that, to the extent that that complaint seeks to call into question the General Court’s analysis of the evidence, it must be considered inadmissible in the context of an appeal. Indeed, it is clear from settled case-law that, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review their legal characterisation and the legal conclusions which were drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice. (27)
82. In so far as this first complaint is instead to be understood in the sense that Eurofer alleges an incorrect legal characterisation of the facts and of the legal conclusions which the Commission drew from them, inasmuch as it did not impose anti-dumping duties in factually similar situations, (28) it is unfounded. Indeed, the fact that one Russian exporting producer and one Brazilian exporting producer exported the product under consideration to the European Union at prices similar to the average price charged by the sole Serbian exporter in no way diminishes the fact that, at country level, the average prices of the imports from Russia and Brazil were lower than those of the imports from Serbia, which is a fact that is not disputed by Eurofer (29) and that enabled the Commission to reach different conclusions with regard to the imports originating in those countries.
83. As regards the second complaint, it must be recalled that, according to settled case-law, there is distortion of the evidence where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of the evidence by the General Court, it must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. (30)
84. I would point out in this connection that the arguments which Eurofer raises in the third part of its second ground of appeal do not demonstrate any distortion of the evidence. Eurofer in no way calls into question the factual findings drawn from the evidence on the case file, which is to say the average prices charged by the three producers in question. It merely challenges the assessment of those facts, which, as I have already pointed out, is not permissible in an appeal. The second complaint in the third part of the second ground of appeal is therefore also unfounded.
85. It follows from all of the foregoing that, in my view, the second ground of appeal should be dismissed as being in part ineffective, in part inadmissible and in part unfounded.
3. The third ground of appeal, concerning the finding that protective measures were unnecessary for the purposes of Article 9(2) of the Basic Regulation
86. By its third ground of appeal, which is divided into two parts and challenges paragraphs 109 to 121 of the judgment under appeal, Eurofer argues that the General Court made a manifest error of assessment and erred in law in the analysis which led it to confirm the Commission’s conclusion that protective measures were unnecessary, for the purposes of Article 9(2) of the Basic Regulation, in so far as the imports from Serbia were concerned.
(a) The judgment under appeal
87. In the judgment under appeal, in its analysis of the second plea in law raised by Eurofer, the General Court held that the decision adopted by the Commission in Article 2 of the regulation at issue, according to which protective measures were unnecessary, for the purposes of Article 9(2) of the Basic Regulation, in so far as the imports from Serbia were concerned, was not invalid.
88. The General Court first of all noted that, since that provision of the Basic Regulation does not specify the circumstances in which protective measures are to be regarded as unnecessary, it allows the Commission a certain margin of discretion. (31) The General Court then observed that, generally, the decision on whether or not it is necessary to impose an anti-dumping duty should be based on a detailed analysis of, inter alia, whether dumping has taken place and whether injury has been caused. The General Court nevertheless held that it was clear from the text of the Basic Regulation, and in particular Article 9(3) thereof, that such a detailed analysis is not always necessary and that it may be appropriate to terminate an investigation, inter alia, on the sole basis of the margin of dumping or the volumes of imports. (32)
89. The General Court then held that, in the case before it, it was clear from reading the regulation at issue that, first, it was precisely one of those factors, namely the volume of imports from Serbia, which had played a central role in the Commission’s reasoning. Secondly, the General Court noted that the conclusion that protective measures were unnecessary with regard to imports from Serbia was not based solely on the de minimis level of the volume of those imports, but also on the interaction between that factor and the fact that the Serbian average sales prices were higher than those of the other four countries concerned, which was a further indication that the low volume of imports could not cause injury to the EU industry. (33)
90. From those considerations, the General Court drew the conclusion that the Commission had not exceeded its margin of discretion in the application of Article 9(2) of the Basic Regulation. (34)
(b) Arguments of the parties
91. Eurofer challenges that analysis. In the first part of its third ground of appeal, it argues that the General Court erred in law in finding that the Commission could terminate the investigation with regard to the imports from Serbia without carrying out an analysis of the potential injury which those imports might have caused. According to Eurofer, although Article 9(2) of the Basic Regulation does not specify the circumstances in which protective measures are to be regarded as unnecessary, recital 16 of that regulation provides clear guidance on the matter. It is clear from that recital, in the light of which the provision in question must be interpreted, that investigations are to be terminated ‘where the dumping is de minimis or the injury is negligible’.
92. According to Eurofer, Article 9(3) of the Basic Regulation in no way changes that. It simply lays down two ‘safe harbour’ thresholds, one relating to the dumping margin and the other to the volume of imports. However, in the present case, the imports from Serbia did not come within either threshold. The dumping margin was well above the de minimis threshold laid down in Article 9(3) of the Basic Regulation and the volume of imports was above the 1% threshold laid down in Article 5(7) of the Basic Regulation.
93. In those circumstances, according to Eurofer, the Commission was entitled to conclude that protective measures were unnecessary only if the potential injury caused by the imports from Serbia was negligible. It could not, by contrast, rely on the volume of the imports, which exceeded the relevant threshold. The Commission should therefore have assessed whether the imports from Serbia could themselves have contributed to the injury to the EU industry, applying the analysis under Article 3 of the Basic Regulation and considering, in particular, whether there had been significant price undercutting, in accordance with paragraph 3 of that article.
94. In the second part, Eurofer submits that the General Court erred in law and made a manifest error in finding that the Commission had not exceeded its margin of discretion in applying Article 9(2) of the Basic Regulation. Eurofer maintains that, while the Commission may enjoy a certain discretion in this area, that does not prevent the General Court from reviewing whether the evidence is capable of substantiating its conclusions. In the present case, first of all, the volume of imports from Serbia exceeded the 1% threshold, and so fell outside the ‘safe harbour’ in Article 9(3) of the Basic Regulation. They could not therefore be presumed to cause only negligible injury. Secondly, the reference to average import prices is flawed, since Serbia had only one producer, while the other countries had several, and it was found that the sales made by certain Russian and Brazilian exporting producers were at prices comparable to those charged by the sole Serbian producer.
95. In addition, the Commission’s failure to consider relevant data constitutes a manifest error. The Commission consistently refused to consider the data on Serbian price undercutting and underselling. That data was, however, obviously relevant to the analysis.
96. The Commission argues that the second part of the third ground of appeal is inadmissible. According to the Commission and HBIS, this ground of appeal is, in any event, wholly unfounded.
(c) Assessment
97. In so far as concerns the first part of the third ground of appeal, it should be recalled that, in accordance with Article 9(2) of the Basic Regulation, where protective measures are unnecessary, the investigation or proceedings are to be terminated. Recital 16 of the regulation, on which Eurofer rightly relies for the interpretation of Article 9(2), states that investigations or proceedings should be terminated where the dumping is de minimis or the injury is negligible, and that it is appropriate to define those situations.
98. Article 9(3) of the Basic Regulation defines those situations. It provides, in particular, in the first sentence thereof, that for proceedings initiated pursuant to Article 5(9) of the regulation – which is to say, where there is sufficient evidence to justify the initiation of proceedings – injury is normally to be regarded as negligible where the imports concerned represent less than the volumes set out in Article 5(7), which is to say less than 1%. (35)
99. By the first part of its third ground of appeal, Eurofer essentially complains that the General Court erred in holding that the provision in the first sentence of Article 9(3) of the Basic Regulation was applicable in the present case, even though the imports from Serbia were in excess of the 1% threshold I have just mentioned.
100. However, I do not consider that that provision is to be interpreted as meaning that that threshold of 1% constitutes a strict and immutable limit such that it will be legally impossible for the Commission to regard as negligible the potential injury caused by a volume of imports in excess of it, despite the fact that that provision, by contrast with the provision in Article 3(4)(a) of the Basic Regulation, (36) makes a specific cross-reference to Article 5(7) of the Basic Regulation.
101. In this connection it should be noted, first of all, that the wording of Article 9(3) of the Basic Regulation expressly uses the term ‘normally’. That, in my view, explicitly shows the legislature’s intention to leave the Commission with a certain margin of discretion in its assessment of whether or not the potential injury from imports close to that threshold is negligible. That margin of discretion, which I again find consistent with the discretion which the institutions enjoy in the realm of measures to protect trade, (37) works both ways: it enables the Commission, where appropriate, both to treat as negligible the injury caused by volumes of import which, although close to the threshold, exceed it and to regard volumes of imports which are close to the threshold but remain within it as capable of causing injury that is not negligible.
102. Secondly, as is made expressly clear by the wording of both recital 16 and the first sentence of Article 9(3) of the Basic Regulation, the fundamental issue in determining whether an investigation or proceedings should be terminated without protective measures being necessary is not whether the threshold has been exceeded as such, but whether or not the injury is negligible. It follows that, even interpreting the provision of the article in question in the light of the relevant recital, as proposed by Eurofer, it does not appear that the threshold of 1% which I have mentioned is a rigid and immutable threshold, as Eurofer alleges.
103. It follows from the foregoing considerations that the mere fact that the volume of imports from Serbia exceeded the 1% threshold mentioned in Article 5(7) of the Basic Regulation did not prevent the Commission from considering it unnecessary to adopt trade protection measures with regard to the imports from Serbia, basing that decision on the de minimis level of the volume of those imports and on the interaction between that factor and the fact that the Serbian average sales prices were higher than those of the other four countries concerned. I therefore consider that the General Court did not err in law by confirming the Commission’s analysis in this regard.
104. In light of the foregoing, in my view, the first part of the third ground of appeal should be held to be unfounded.
105. As regards the second part, contrary to the Commission’s position, it is not, in my view, inadmissible for the reason that Eurofer is merely disputing questions of fact. Indeed, in paragraphs 115 to 121 of the judgment under appeal, against which this part is directed, the General Court made legal findings, and it is against these that Eurofer’s line of argument is directed.
106. That said, I do however consider that this second part is also unfounded.
107. As regards the first argument in this second part, according to which the Commission exceeded its margin of discretion inasmuch as, in the present case, the volume of imports from Serbia exceeded the 1% threshold and so fell outside the ‘safe harbour’ in Article 9(3) of the Basic Regulation, that argument must be rejected in the light of the considerations addressing the first part of the present ground of appeal. Indeed, those considerations imply that the General Court made no error in finding that, given the circumstances of the present case, the Commission could, without exceeding the margin of discretion which it enjoys in this regard, treat as negligible for the purposes of that provision the injury potentially caused by the imports from Serbia, even though their volume exceeded by 0.04% the 1% threshold mentioned in Article 5(7) of the Basic Regulation.
108. As regards the second argument in this second part, concerning the fact that one Russian exporting producer and one Brazilian exporting producer had exported the product under consideration to the European Union at prices similar to the average price charged by the sole Serbian exporter, its relevance has already been rejected in the context of the analysis of the second ground of appeal. Since, as I mentioned in point 82 above, it is not disputed that, at country level, the average prices of the imports from Russia and Brazil were lower than the Serbian prices, the circumstance on which Eurofer relies is wholly incapable of proving that the Commission exceeded its margin of discretion.
109. As regards the third argument, concerning the Commission’s refusal to consider the data on Serbian price undercutting and underselling, that argument is based on the premiss that, in view of the fact that the volume of imports from Serbia exceeded the 1% threshold, the Commission was not entitled to consider the potential injury caused by those imports to be negligible for the purposes of Article 9(3) of the Basic Regulation and should therefore have conducted a full analysis of the potential injury that the imports from Serbia might have caused to the EU industry, in accordance with Article 3(3) of that regulation. However, it is apparent from the foregoing considerations that that premiss is mistaken and that the General Court was able to conclude, without making any error, that, in the present case, the Commission could terminate the proceedings, taking the view that the injury was negligible, without having to carry out the additional analysis to which Eurofer refers. It follows that the third argument must also be rejected.
110. It follows from all of the foregoing that the second part of the third ground of appeal is, in my view, also unfounded and that this ground of appeal should therefore be dismissed in its entirety.
4. The fourth ground of appeal, concerning the non-disclosure of the data on undercutting and underselling on the part of the Serbian exporter
111. By its fourth ground of appeal, which is divided into three parts and challenges paragraphs 135 to 148 of the judgment under appeal, Eurofer argues that the General Court made various errors of law in finding that the Commission had not been required to disclose to Eurofer data on the undercutting and underselling practiced by the Serbian exporter.
(a) The judgment under appeal
112. In the judgment under appeal, the General Court held that it was apparent from the case file that, in the course of the administrative procedure, Eurofer had been informed on numerous occasions of the considerations which had led the Commission to conclude, first, that the imports from Serbia should not be assessed cumulatively with the imports from the other four countries and, secondly, that the proceedings should be terminated with regard to the imports from Serbia. (38) The General Court drew from that the conclusion that, in accordance with Article 20(2) of the Basic Regulation, Eurofer had been informed of the essential facts and considerations on the basis of which it was intended to recommend the termination of the investigation without the imposition of measures with regard to the imports from Serbia and that Eurofer had been afforded an opportunity to make its views on the matter known, such that its right of defence had been respected in the present case. (39)
113. The General Court then held that, since neither Eurofer nor its members were in a situation comparable to that of an undertaking which risks having a penalty or an anti-dumping duty imposed on it, it could not usefully rely on the case-law concerning the respect of the rights of defence of such undertakings. (40)
114. Lastly, the General Court rejected Eurofer’s argument alleging a failure to have regard to the principle of sound administration. It held that it followed from its analysis of the second plea in law that the Commission had been entitled to decide to terminate the proceedings with regard to the imports from Serbia on the sole basis of the volumes of imports and the average sales price data, without having to analyse the data on undercutting and underselling. Consequently, according to the General Court, the Commission had examined all the relevant factors in the case. The General Court then held that that conclusion could not be called into question by the undercutting and underselling margins for the imports from Serbia, which Eurofer had requested be produced, and so that request for the production of that data also had to be refused. (41)
(b) Arguments of the parties
115. Eurofer takes issue with the General Court’s analysis. In the first part of its fourth ground of appeal, it submits that the General Court erred in law in holding that its rights of defence had not been infringed. The data on undercutting and underselling on the part of the Serbian exporter were highly relevant to demonstrating the effect of the imports on prices and were necessary in order for Eurofer to be able to put forward its views on whether the imports from Serbia caused injury to the EU industry and on whether the Commission was right to consider those imports to be negligible. According to Eurofer, rights of defence are not based solely on knowledge of the matters on the basis of which the Commission has built its case, as provided for by Article 20(2) of the Basic Regulation, but also on access to other highly relevant evidence in the Commission’s file that could cast doubt on the institution’s case.
116. In the second part, Eurofer submits that the General Court erred in law by holding that, as representative of the EU industry, it could not rely on the requirements stemming from respect of the rights of the defence, since it was not at risk of having an anti-dumping duty imposed on it. According to Eurofer, it is clear from the case-law that, on the contrary, there is no legal basis for drawing a distinction between exporters and the EU industry in this regard.
117. In the third part, Eurofer submits that the General Court erred in law by holding that the regulation at issue was consistent with the principle of sound administration enshrined in Article 41 of the Charter of Fundamental Rights. Eurofer argues that, if its second or third ground of appeal is upheld, its arguments alleging infringement of the principle of sound administration should also be upheld. In addition, it submits that the General Court erred in law by refusing its request for an order requiring the Commission to produce the evidence on undercutting and underselling.
118. The Commission argues that the second part of the present ground of appeal is ineffective. According to the Commission and HBIS, this ground of appeal is, in any event, entirely unfounded.
(c) Assessment
119. As regards the first part of Eurofer’s fourth ground of appeal, it must be recalled that Article 20(2) of the Basic Regulation provides that the parties mentioned in Article 20(1), which include Eurofer in this case, may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the termination of an investigation or proceedings without the imposition of measures.
120. However, as is clear from paragraphs 135 and 136 of the judgment under appeal, the General Court found that Eurofer had been informed of the matters which had led the Commission to conclude that it was unnecessary to assess the imports from Serbia cumulatively with the imports from the other four countries concerned and that the proceedings should be terminated with regard to the imports from Serbia.
121. In addition, it is clear from my analysis of the other grounds of appeal, and in particular from points 78, 79 and 109 of this Opinion, that the General Court made no error in finding that the Commission had been entitled conclude in this case that, in view of the evidence which it had considered, it had not been necessary to analyse further the potential injury resulting from the imports from Serbia, either for the purposes of its conclusion under Article 3(4)(a) of the Basic Regulation or for the purposes of its decision to terminate the proceedings in accordance with Article 9(2) and (3) of that regulation. It follows that, since the data on undercutting and underselling on the part of the Serbian exporter did not constitute facts or considerations on the basis of which the Commission intended to recommend the termination of the investigation with regard to the imports from Serbia, without the imposition of measures, the General Court did not err in law by holding that the Commission had not infringed Article 20(2) of the Basic Regulation by not disclosing that information to Eurofer.
122. However, in the first part of its fourth ground of appeal, Eurofer also submits that, independently of the provision in Article 20(2) of the Basic Regulation, its rights of defence were infringed in that that information constituted other relevant evidence in the Commission’s file that could cast doubt on the institution’s case. In this same part it also argues that it essentially enjoys the same rights of defence as those which exporters at risk of having an anti-dumping duty imposed on them are recognised, in the case-law, as having.
123. On this point, without it being necessary to resolve the question of whether or not the case-law on the rights of defence of exporters is applicable to an entity such as Eurofer, I would observe that, in any event, according to the case-law, the existence of an irregularity relating to the rights of the defence can result in the annulment of the regulation at issue only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome. (42)
124. It is clear from point 121 above and from the points cited therein that, in the present case, first, the data on undercutting and underselling on the part of the Serbian exporter were not needed to support the decisions under Article 3(4)(a) and Article 9(2) and (3) of the Basic Regulation and, secondly, the Commission was not required to carry out a full injury analysis in accordance with Article 3(3) of the Basic Regulation with regard to the imports from Serbia in order to adopt those decisions. It follows that, in principle, there was no irregularity in the Commission’s not disclosing that data.
125. In those circumstances, Eurofer cannot, in my view, argue any infringement of its rights of defence merely on the basis that the data on undercutting and underselling on the part of the Serbian exporter had not been disclosed to it, without in any way specifying how, if there had been such disclosure, it would have been able to put forward a more effective defence, or how the administrative procedure might have had a different outcome.
126. It follows that, in my view, both the first and the second part of the fourth ground of appeal should be dismissed. It also follows that, contrary to what Eurofer claims, the General Court was not, in those circumstances, required to order the Commission to disclose the data in question.
127. As regards the third part, I would observe that it is not based on any real legal arguments, but rather on a simple reiteration of the second and third grounds of appeal. It follows that, since those grounds should, in my view, be dismissed, the third part of the fourth ground of appeal should also be dismissed.
128. It follows from all the foregoing considerations that, in my view, the fourth ground of appeal should also be dismissed and that, consequently, the appeal should be dismissed in its entirety.
VI. Costs
129. In accordance with Article 184(2) of the Rules of Procedure, where the appeal is dismissed, the Court is to make a decision as to the costs.
130. Under Article 138(1) of those rules, applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
131. Since both the Commission and HBIS have applied for costs and Eurofer has been unsuccessful, Eurofer should be ordered to pay the costs of those two parties.
VII. Conclusion
132. In the light of the foregoing considerations, I propose that the Court should:
– dismiss the appeal;
– order Eurofer, European Steel Association, AISBL to pay the costs of the European Commission and of HBIS Group Serbia Iron & Steel LLC Belgrade.