Case T‑228/17
Zhejiang Jndia Pipeline Industry Co. Ltd
v
European Commission
Judgment of the General Court (Fourth Chamber), 19 September 2019
(Dumping — Imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in China and Taiwan — Imposition of definitive anti-dumping duties — Normal value — Adjustments — Manifest error of assessment — Obligation to state reasons)
1. EU law — Principles — Rights of defence
(Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Art. 41(2));
(see paragraphs 36, 37)
2. Judicial proceedings — Production of evidence — Time limit — Evidence lodged out of time — Conditions
(Art. 263 TFEU; Rules of Procedure of the General Court, Art. 85(1))
(see paragraph 45)
3. Common commercial policy — Protection against dumping — Injury — Discretion of the institutions — Judicial review — Limits
(Council Regulation No 1225/2009, Art. 2(7)(b) and (c))
(see paragraphs 65, 66)
4. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Not possible to invoke WTO agreements to challenge the legality of an EU measure — Exceptions — EU measure intended to ensure its implementation or referring thereto expressly and precisely — Application in anti-dumping matters
(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-Dumping Agreement’, Art. 2; Protocol on the Accession of China to the WTO, Part I, point 15; Council Regulation No 1225/2009, recital 3, Art. 2(7)(a))
(see paragraphs 98-103)
5. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — No direct effect
(General Agreement on Tariffs and Trade 1994; Protocol on the Accession of China to the WTO, Part I, point 15; Council Regulation No 1225/2009, Art. 2(7)(a))
(see paragraph 104)
6. EU law — Interpretation — Methods — Interpretation in the light of the international agreements concluded by the Union — Interpretation of Regulation No 1225/2009 in the light of the 1994 GATT Anti-Dumping Agreement
(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-Dumping Agreement’, Art. 2; Protocol on the Accession of China to the WTO, Part I, point 15; Council Regulation No 1225/2009, Art. 2(7)(a))
(see paragraphs 110-114)
7. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Selection of the analogue country — Discretion of the institutions — Judicial review — Scope
(Council Regulation No 1225/2009, Art. 2(7)(a))
(see paragraphs 112, 126, 127, 134)
8. Acts of the institutions — Statement of reasons — Obligation — Scope — Regulations imposing anti-dumping duties
(Art. 296 TFEU; Council Regulation No 1225/2009, Art. 2(7)(a))
(see paragraph 140)
9. Judicial proceedings — Application initiating proceedings — Formal requirements — No brief summary of the pleas in law on which the application is based — Inadmissibility
(Rules of Procedure of the General Court, Art. 76(d))
(see paragraphs 152, 166, 167)
Résumé
By judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, the Court dismissed the action for annulment brought by Zhejiang Jndia Pipeline Industry Co. Ltd against the European Commission Regulation of 26 January 2017 imposing anti-dumping duties on imports of certain stainless steel tube and pipe fittings originating in China and Taiwan (1) (the ‘regulation imposing anti-dumping duties’).
At the origin of the case is an anti-dumping proceeding conducted by the Commission in 2015 and 2016, which led, by means of the contested regulation, to the establishment of an anti-dumping duty of 48.9% on imports of certain stainless steel tube and pipe fittings originating in those countries. The anti-dumping proceeding had revealed that the fittings concerned were imported into the European Union at a value well below their normal value. In order to determine the normal value, the Commission had, first, found that market economy conditions did not prevail for exporting producers in the People’s Republic of China and, next, used Taiwan as analogue country, in accordance with the procedure laid down in Article 2(7)(a) and (b) of basic anti-dumping Regulation No 1225/2009 (2) (the ‘basic anti-dumping regulation’).
The Chinese company Zhejiang Jndia Pipeline Industry Co. Ltd, which produces and exports tube and pipe fittings to the European Union, brought an action before the Court for annulment of the anti-dumping measures relating to it. In support of its action, it submitted that the Commission’s application of the basic anti-dumping regulation in view of determining the normal value for the tube and pipe fittings concerned was contrary to the provisions of the Protocol on the Accession of China to the World Trade Organisation (WTO). (3) The applicant also alleged a manifest error of assessment in the determination of that normal value.
In the first place, the Court recalled that the agreements concluded with the WTO are not among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions, given their nature and purpose. The exceptions to that rule accepted by the Court, where the EU measure in question refers explicitly to specific provisions of those agreements or where the European Union intended to implement a particular obligation assumed in the context of those agreements, were also not applicable in the present case. In that regard, the Court stated, more specifically, that no article of the basic anti-dumping regulation refers to any specific provision of anti-dumping agreements and that the Commission’s application of the provisions of that regulation in view of determining the normal value for the tube and pipe fittings concerned (4) did not constitute measures intended to ensure the implementation of a particular obligation assumed in the context of the WTO. Thus, the Court confirmed that it could not review the legality of the regulation imposing anti-dumping duties in the light of the Protocol on the Accession of China to the WTO.
In the second place, the Court confirmed that the Commission was also not required to interpret the basic anti-dumping regulation in compliance with WTO law. Even though EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended to give effect to an international agreement concluded by the European Union, the fact remains that the basic anti-dumping regulation cannot be considered to be a provision intended to implement specific obligations in the context of the agreements concluded with the WTO.
As regards the complaint alleging a manifest error of assessment made by the Commission, in that it refused to take into account the price lists for pipes used by Chinese producers for the purpose of making adjustments to the production costs of certain products produced in Taiwan, the Court recalled that the institutions of the European Union enjoy broad discretion when determining normal value in respect of non-market economy countries. Furthermore, the burden of proving a manifest error lies with the applicant, which must provide conclusive evidence in support of its claim. Thus, the Court confirmed that the Commission was fully entitled to use the method applicable to non-market economy countries. Under that method, the Commission is not required to take into consideration data from non-market economy countries, but must use as a basis the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product.