JUDGMENT OF THE GENERAL COURT (Second Chamber)
22 May 2014 (*)
(Dumping — Imports of ceramic tiles originating in China — Definitive anti‑dumping duty — Non-cooperation — Necessary information — Time-limits provided — Facts available — Article 18(1) and (3) of Regulation (EC) No 1225/2009)
In Case T‑633/11,
Guangdong Kito Ceramics Co. Ltd, established in Foshan (China),
Jingdezhen Kito Ceramic Co. Ltd, established in Jingdezhen (China),
Jingdezhen Lehua Ceramic Sanitary Ware Co. Ltd, established in Jingdezhen,
Zhaoqing Lehua Ceramic Sanitary Ware Co. Ltd, established in Sihui (China),
represented by M. Sánchez Rydelski, lawyer,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, and initially by G. Berrisch, lawyer, and N. Chesaites, Barrister, and subsequently by D. Geradin, lawyer,
defendant,
supported by
European Commission, represented by J.-F. Brakeland, M. França and A. Stobiecka-Kuik, acting as Agents,
and by
Cerame-Unie AISBL, established in Brussels (Belgium),
Asociación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), established in Castellón de la Plana (Spain),
Confindustria Ceramica, established in Sassuolo (Italy),
Casalgrande Padana SpA, established in Casalgrande (Italy),
Etruria Design Srl, established in Modena (Italy),
represented by V. Akritidis and Y. Melin, lawyers,
interveners,
APPLICATION for annulment of Council Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1),
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood, President, F. Dehousse and J. Schwarcz (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 16 October 2013,
gives the following
Judgment
Background to the dispute
Applicants
1 The applicants, Guangdong Kito Ceramics Co. Ltd, Jingdezhen Kito Ceramic Co. Ltd, Jingdezhen Lehua Ceramic Sanitary Ware Co. Ltd and Zhaoqing Lehua Ceramic Sanitary Ware Co. Ltd, are exporting producers of ceramic tiles.
2 Although the applicants maintain that the Kito Group includes only Guangdong Kito Ceramics and Jingdezhen Kito Ceramic, and that it is in competition with the Lehua Group, to which Jingdezhen Lehua Ceramic Sanitary Ware and Zhaoqing Lehua Ceramic Sanitary Ware belong, it is not disputed as between the parties that the four companies are related within the meaning of the glossary in Annex II to the anti-dumping questionnaire (see paragraph 7 below). Those relationships are, moreover, confirmed by the diagram in Annex A 10 to the application. All those companies may therefore also be described as the Kito Group, as they have in fact been by the institutions in the administrative procedure and in Council Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1, ‘the contested regulation’).
Procedure leading to the adoption of the contested regulation
3 Following a complaint filed on 7 May 2010, the European Commission published, on 19 June 2010, a notice of initiation of an anti-dumping proceeding concerning imports of ceramic tiles originating in the People’s Republic of China (OJ 2010 C 160, p. 20). The investigation into the dumping and the injury covered the period from 1 April 2009 to 31 March 2010. Examination of the trends relevant for assessing injury and causation covered the period from 1 January 2007 to 31 March 2010. The investigation encompassed all ceramic tiles imported under codes 6907 and 6908 of the Combined Nomenclature.
4 The notice of initiation invited all exporting producers of the product under investigation originating from the countries concerned, including all those wishing to apply for individual examination, to make themselves known to the Commission.
5 On 2 July 2010, the applicants made themselves known to the Commission. They asked to be included in the sample or for the Commission to examine their exports to the European Union individually for the purposes of obtaining individual dumping margins. The applicants were not included in the sample, but the Commission decided to examine them individually in accordance with Article 17(3) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, ‘the basic regulation’).
6 On 4 August 2010, the Commission sent the anti-dumping questionnaire to the applicants. The deadline for replying was 10 September 2010. Questions A-3.6. and A-3.9., on which the present action focuses, were worded as follows:
‘A-3.6. Provide, for all countries, the names and addresses, telephone and facsimile numbers of all subsidiaries or other related companies that are involved with the product concerned. Specify the activities of each related company. In addition, please identify all related companies, who supply you with inputs used in the manufacture of the product under investigation (see Section B hereafter) or on whose behalf you sell the product subject in this proceeding. Specify what percentage of shares your company owns in each of these entities and what percentage of shares each of these entities owns in your company…
A-3.9. Outline your company’s world-wide corporate structure and affiliations, including parent companies, subsidiaries or other related companies. For this purpose you may supply a chart.’
7 The definition of a related company in the glossary in Annex II to the anti‑dumping questionnaire is as follows:
‘For the purpose of this proceeding persons (i.e. natural or legal persons) shall be deemed to be related if:
…
(d) any person directly or indirectly owns, controls or holds 5% or more of the outstanding voting stock or shares of both of them;
…
(f) both of them are directly or indirectly controlled by a third person.’
8 The questionnaire also contained the following notice:
‘You should also be aware that the non-submission of all relevant information or the submission of incomplete, false or misleading information within the specified time-limits can have unfavourable consequences for your company. In any of these circumstances, the Commission would apply Article 18 of the basic regulation and disregard any late response, or any responses which are significantly incomplete, false or misleading to an extent that they would be likely to impede the investigation process.’
9 The applicants replied to the questionnaire on 6 September 2010. It is undisputed that none of the responses to questions A-3.6 and A-3.9 submitted by the applicants mentioned two of their related companies, Foshan Micawa Ceramics Co. Ltd (‘Micawa’) and Foshan City Gaoming Annwa Ceramic Sanitary Ware Co. Ltd (‘Gaoming Annwa’).
10 The Commission imposed a provisional anti-dumping duty in its Regulation (EU) No 258/2011 of 16 March 2011 imposing a provisional anti-dumping duty on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 70, p. 5). The applicants were included in the list in Annex I to that regulation. Accordingly, they were subject to a provisional anti-dumping duty of 32.3% pursuant to Article 1(2) of the regulation.
11 In the period from 26 April to 5 May 2011, agents for the Commission carried out on-site verification visits at the applicants’ premises, in order to verify the information they had provided in their replies to the questionnaire. The applicants did not mention the existence of their related companies Micawa and Gaoming Annwa on that occasion either.
12 On 1 July 2011, the Commission sent the applicants the general and specific disclosure documents. The Commission proposed to impose individual definitive anti-dumping duties of 22.3% for the whole Kito Group, including the four applicants.
13 On 20 July 2011, the Commission sent the applicants an email, on the one hand informing them of documents it had received, indicating that the applicants had omitted to mention the existence of certain related companies in their replies to the questionnaire, and, on the other, asking them to submit any comments by midday on Friday 22 July 2011.
14 The email stated, in particular:
‘Please find attached a number of documents received by the Commission services, whereby it appears that in the course of the investigation, your client may not have disclosed full information regarding the existence of at least one related company involved in the production of the product concerned during the investigation period. Please note that if this information is found to be correct, your client could be applied Article 18 of the Basic Anti-Dumping Regulation and findings in relation to your client would be made on the basis of facts available.’
15 On 20 July 2011, the applicants asked that the deadline for submission of their comments on those claims be postponed to 25 July 2011, to which the Commission agreed.
16 Although, in their reply of 25 July 2011, the applicants contested the accuracy of the information contained in the documents sent to them on 20 July 2011, they admitted that they had not indicated the existence of Micawa and Gaoming Annwa.
17 The Commission responded to the applicants’ reply on the same date, stating as follows:
‘[W]e note that you have confirmed the existence of two related companies namely [Micawa and Gaoming Annwa]. Those companies were clearly not disclosed at all in the company’s reply to the anti-dumping questionnaire (A.3.9). In view of the above, please be informed that the Commission intends to apply Article 18 of the basic regulation and that the findings of the Kito Group will be based on facts available.’
18 The Commission also asked the applicants to send it any comments by 28 July 2011.
19 On 26 July 2011, the applicants sent the Commission additional comments. First, they stated that, in their opinion, it was immaterial that they had not disclosed the existence of the two related companies, since those companies did not produce the product concerned. On the other hand, the applicants admitted that there would have been some justification for resorting to Article 18 of the basic regulation if the companies whose existence had not been mentioned had been involved with the product concerned. In addition, those two companies were related only indirectly to the applicants, through private holdings. In so far as Gaoming Annwa did market the product concerned, it had not exported it to the European Union during the investigation period. The information that was omitted was not ‘necessary’ within the meaning of Article 18 of that regulation, since the data for the companies that were related but not involved with the product concerned was not taken into account in calculating the dumping margin for the Group. They went on to emphasise that they had participated fully in the investigation and had not intentionally omitted to mention the two companies. Lastly, the applicants argued that the omission did not in any case justify calling into question conclusions based on facts already verified by the Commission.
20 In a follow-up letter and an email sent to the Commission on 9 and 25 August 2011 respectively, the applicants, in essence, reiterated the comments they had sent to the Commission on 26 July 2011.
21 By email of 25 August 2011, the Commission replied to the applicants, informing them that it had taken their comments into account.
The contested regulation
22 On 12 September 2011, the Council of the European Union adopted the contested regulation.
23 Recitals 51, 52, 54 and 197 in the preamble to the contested regulation, which relate to the present dispute, are worded as follows:
‘(51) Claims for [individual examination (“IE”)] were submitted by eight cooperating exporting producers pursuant to Article 17(3) of the basic Regulation. It was decided to carry out IE for one exporting producer, Kito Group, as it was not unduly burdensome to do so. This group represented by far the largest export volume of the eight producers claiming IE.
(52) This group claimed [individual treatment (“IT”)]. After examination of this claim, it was initially proposed to grant IT to the Kito Group as no reasons were found as to why this group should not have IT.
…
(54) Following final disclosure, information and evidence were received that the Kito Group may not have disclosed all related companies of the group with the result that the findings for the group may be incomplete. The group was given the opportunity to comment on this information and was informed that Article 18 of the basic regulation may have to be applied. In reply, they confirmed that indeed they did not disclose two related companies in their reply to the anti-dumping questionnaire but argued that, as it was a mere oversight without consequence since they were not involved in the production and/or commercialisation of the product concerned, it should have no bearing on the findings. However, the fact that the existence of these two companies was not disclosed did not allow a proper assessment and verification of the group’s activities in relation to the product concerned. In these circumstances, it is concluded that the group did not provide the necessary information within the appropriate time-limits and consequently the findings for the company are made on the basis of facts available in accordance with Article 18 of the basic regulation.
…
(197) It is noted that the injury margin for “all other cooperating producers” was determined without using data from the Kito Group, since the Kito Group did not form part of the sample, and in order to be coherent with the way the dumping margin for “all other cooperating producers” is calculated (see Article 9(6) first sentence of the basic regulation). For the Kito Group, in view of the application of Article 18 of the basic regulation as mentioned in recital 54, the residual injury margin will apply.’
24 Article 1 of the contested regulation provides:
‘1. A definitive anti-dumping duty is hereby imposed on imports of glazed and unglazed ceramic flags and paving, hearth or wall tiles; glazed and unglazed ceramic mosaic cubes and the like, whether or not on a backing, currently falling within CN codes 6907 10 00, 6907 90 20, 6907 90 80, 6908 10 00, 6908 90 11, 6908 90 20, 6908 90 31, 6908 90 51, 6908 90 91, 6908 90 93 and 6908 90 99, and originating in the People’s Republic of China.
2. The rate of the definitive anti-dumping duty applicable to the net, free‑at‑Union-frontier price, before duty, of the products described in paragraph 1 and manufactured by the companies listed below shall be as follows:
Company | Duty | TARIC Additional Code |
Dongguan City Wonderful Ceramics Industrial Park Co. Ltd; Guangdong Jiamei Ceramics Co. Ltd; Qingyuan Gani Ceramics Co. Ltd; Foshan Gani Ceramics Co. Ltd | 26.3% | B011 |
Guangdong Xinruncheng Ceramics Co. Ltd | 29.3% | B009 |
Shandong Yadi Ceramics Co. Ltd | 36.5% | B010 |
Companies listed in Annex I | 30.6% | |
All other companies | 69.7% | B999 |
…’
25 Since none of the applicants is listed in Annex I to the contested regulation, they are subject to the rate for all other companies (‘residual rate’) of 69.7%, as also indicated in recital 197 in the regulation.
Procedure and forms of order sought
26 By application lodged at the Court Registry on 8 December 2011, the applicants brought the present action.
27 By a document lodged at the Court Registry on 22 February 2012, the Commission applied for leave to intervene in support of the form of order sought by the Council.
28 By a document lodged at the Court Registry on 19 March 2012, Cerame-Unie AISBL, Asociación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), Confindustria Ceramica, Casalgrande Padana SpA and Etruria Design Srl (‘Cerame-Unie and Others’) applied for leave to intervene in support of the form of order sought by the Council.
29 By order of 28 March 2012, the President of the Second Chamber of the General Court granted the Commission leave to intervene in support of the form of order sought by the Council.
30 By order of 11 July 2012, the President of the Second Chamber of the General Court granted Cerame-Unie and Others leave to intervene in support of the form of order sought by the Council.
31 The applicants claim that the Court should:
– annul the contested regulation;
– order the Council and the interveners to pay the costs.
32 The Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
33 The Commission submits that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
34 Cerame-Unie and Others submit that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
35 The applicants put forward three pleas in law, alleging, in essence, (i) infringement of Article 18(1) and (3) of the basic regulation; (ii) infringement of the obligation to state reasons; and (iii) breach of the general principles of sound administration and transparency and of the rights of the defence, and infringement of Article 20(2) and Article 18(4) of the basic regulation.
First plea in law: infringement of Article 18(1) and (3) of the basic regulation
36 The applicants claim, in essence, that the conditions for the application of Article 18(1) of the basic regulation in the context of establishing the individual dumping margin for the Kito Group were not fulfilled and, in the alternative, that if it was necessary to apply Article 18 of that regulation, it should have been Article 18(3) that was applied, the conditions for which were satisfied.
37 The Council and the interveners do not accept the applicants’ arguments.
38 As a preliminary point, it must be borne in mind that it has consistently been held that the provisions of the basic regulation must, so far as possible, be interpreted in a manner that is consistent with the corresponding provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the Anti-Dumping Agreement’) in Annex 1 A to the Agreement establishing the World Trade Organisation (WTO) approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (see, to that effect, Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20, and Case C‑76/00 P Petrotub and Republica v Council [2003] ECR I‑79, paragraph 57).
39 Although the interpretations of the Anti-Dumping Agreement by the WTO’s Dispute Settlement Body cannot bind the Court in its assessment as to whether the contested regulation is valid (see, to that effect, Case C‑377/02 Van Parys [2005] ECR I‑1465, paragraph 54), there is nothing to prevent the Court from referring to them, where — as in the present case — provisions of the basic regulation have to be interpreted (Case T‑192/08 Transnational Company ‘Kazchrome’ and ENRC Marketing v Council [2011] ECR II‑7449, paragraph 36).
40 In the present case, it must be pointed out that Article 18 of the basic regulation constitutes the implementation, in EU law, of the content of Article 6.8 of, and Annex II to, the Anti-Dumping Agreement, and must be interpreted in the light thereof in so far as possible (see, to that effect, Case T‑409/06 Sun Sang Kong Yuen Shoes Factory v Council [2010] ECR II‑807, paragraph 103).
41 It should also be noted that, in the sphere of measures to protect trade, the EU institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine (see Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243, paragraph 61 and the case-law cited).
42 Review by the Courts of the European Union of the institutions’ assessments must therefore be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (see Shandong Reipu Biochemicals v Council, cited in paragraph 41 above, paragraph 62 and the case-law cited).
43 The Court notes that where the EU institutions have a wide power of appraisal, respect for the rights guaranteed by the EU 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, the right of the person concerned to make his views known and to have an adequately reasoned decision (see Shandong Reipu Biochemicals v Council, cited in paragraph 41 above, paragraph 63 and the case-law cited).
44 In that regard, the first sentence of Article 18(1) of the basic regulation authorises the institutions to use the facts available in cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits provided in that regulation, or in which it significantly impedes the investigation. The use of facts available is also authorised if any interested party supplies false or misleading information. It is apparent from the wording of that provision that these four conditions are alternatives, so that if just one of them is satisfied, the institutions may use the facts available as the basis for their provisional or final findings.
45 However, as regards the first two conditions, the possibility of using the facts available applies only in relation to information that may be regarded as necessary.
46 The basic regulation does not define necessary information. It should be noted, however, that the WTO panel concluded in paragraph 7.43 of the report entitled ‘Korea — Anti-dumping duties on imports of certain paper from Indonesia’ (WT/DS312/R), adopted on 28 October 2005 (‘the Korea and Indonesia panel report’), that the decision as to whether or not a given piece of information constitutes ‘necessary information’ within the meaning of Article 6.8 of the Anti‑Dumping Agreement has to be made in the light of the specific circumstances of each investigation, not in the abstract. Furthermore, the WTO panel indicated in paragraph 7.343 of its report entitled ‘European Communities — Anti-dumping measure on farmed salmon from Norway’ (WT/DS337/R), adopted on 15 January 2008 (‘the EC and Norway panel report’), that necessary information, within the meaning of the same provision, refers to specific information held by an interested party that is requested by the authority responsible for the anti-dumping investigation for the purpose of making determinations.
47 It is not disputed by the applicants that, owing to the need to prevent anti-dumping duties from being circumvented by means of the exporting producer undertakings with the lowest anti-dumping duty rates, the final individual dumping margins are calculated not by companies but by groups of related companies as a weighted average of the dumping margins of the companies which those groups comprise. It is, moreover, evident from the applicants’ letters of 26 July and 25 August 2011 that they were well aware of the method of calculating the individual dumping margin for a group such as the group to which they belonged. That is why the Commission must be informed not only of the existence and identity of companies that are related and involved in the production and sale to the European Union of the product concerned, but also of all other related companies, so that it can assess whether verification of their possible involvement with the product concerned is necessary, or carry out such verification as it considers appropriate. As is clear from the uncontested statements made by the Council and the interveners at the hearing, even if the companies covered by question A-3.9 of the anti-dumping questionnaire are not visited directly, such verification can take the form of examination of their business licences at the premises of one of the undertakings covered by question A-3.6 of the questionnaire, questioning of their managers, or inspection of the accounting ledgers of related companies that are involved with the product concerned, in order to investigate transactions with companies that are related but not involved.
48 In addition, contrary to what the applicants claim, in essence, it cannot be inferred from the fact that the Commission noted in its email of 25 July 2011 that there had been an incomplete response to question A-3.9 and not to question A-3.6 of the anti-dumping questionnaire that it had accepted that Micawa and Gaoming Annwa were not involved with the product concerned. The Commission’s statement flows directly from the applicants’ confirmation that they had omitted to mention the existence of two related companies within the meaning of question A-3.9. That statement is therefore without prejudice to the possibility that those companies also were involved with the product within the meaning of question A-3.6.
49 The lack of full and wholly reliable information regarding the precise composition of the whole group of companies in question casts serious doubt on the accuracy of the Commission’s entire calculation, undermining, as a result, the usefulness of the information the applicants had previously provided in relation to other companies in the group.
50 That finding is also consistent with paragraphs 7.60 to 7.62 and 7.67 of the WTO panel report entitled ‘United States — Anti‑dumping and countervailing measures on steel plate from India’ (WT/DS206/R), adopted on 29 July 2002 (‘the US and India panel report’), according to which a decision to reject certain information because it did not satisfy the requirements of paragraph 3 of Annex II to the Anti-Dumping Agreement may have consequences for the rest of the information submitted and, depending on the specific facts and circumstances of the case, may justify the decision to reject other information which, if it were considered separately, would be satisfactory.
51 The institutions did not, therefore, make any error in taking the view that the precise identity of all the related companies of the group in question was necessary information within the meaning of Article 18(1) of the basic regulation.
52 In those circumstances, since the applicants did not disclose the information in question to the Commission before the verification visit, they did in fact prevent the Commission from carrying out that type of check as regards the possible relevance of the existence of Micawa and Gaoming Annwa to the calculation of the individual margin of the group to which the applicants belong.
53 The consequences of that failure on the part of an interested party are in fact equivalent, so far as concerns the specific information in question, to impeding a verification visit. It is apparent from paragraphs 273 to 276 of the judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, cited in paragraph 39 above, that Article 18(1) of the basic regulation allows the institutions to use the facts available where an interested party has impeded the verification visit, and that Article 18(3) does not place any obligation on the institutions to check, by reference to other available sources of information available, information which has been supplied by an interested party but which has not been verified on the spot.
54 The non-disclosure of the two companies in question also prevented the Commission from carrying out on site the types of checks mentioned in paragraph 47 above, which are actually less intensive than verification at the premises of the companies covered by question A-3.9 of the anti-dumping questionnaire.
55 Moreover, it is clear from Sun Sang Kong Yuen Shoes Factory v Council, cited in paragraph 40 above (paragraph 107), that the institutions are entitled to refuse to take account of documents supplied out of time, since they could not be verified without a second visit. It must be noted that, in the circumstances of this case, where the information concerning Micawa and Gaoming Annwa was not included in the applicants’ replies to the anti-dumping questionnaire or voluntarily submitted by the applicants during the administrative procedure, even though it was in their possession and there was nothing to prevent its disclosure, verification of the precise activities of those companies in the light of the information belatedly provided by the applicants would have necessitated a second visit.
56 It follows from this that the institutions did not make any error in resorting, in the present case, to the facts available.
57 This finding is confirmed by the considerations relating to the late submission of the information in question and the analysis of Article 18(3) of the basic regulation.
58 First, it appears that the information in question was not supplied within the time‑limits provided for by the basic regulation.
59 As the Council and the interveners submit, the time-limits within which any interested parties must reply to an anti-dumping questionnaire are laid down by Article 6(2) of the basic regulation. That provision reads as follows:
‘Parties receiving questionnaires used in an anti-dumping investigation shall be given at least 30 days to reply … An extension to the 30-day period may be granted, due account being taken of the time-limits of the investigation, provided that the party shows due cause for such extension, in terms of its particular circumstances’.
60 However, it is common ground that confirmation of the existence of Micawa and Gaoming Annwa and the information about their activities was not provided until 25 July 2011, that is 10 months after the deadline for replying to the questionnaire (see paragraph 6 above). Therefore, that information was not provided within the time-limits laid down by the basic regulation.
61 In so far as the applicants maintain, in essence, that the information at issue was provided within the time-limits provided, since their reply of 25 July 2011 was made within the time-limit set by the Commission in its letter of 20 July 2011, it must be observed that such an interpretation of the meaning of the time-limits provided for by the basic regulation would have the effect, in fact, of allowing interested parties not to mention all necessary information immediately in their replies to anti-dumping questionnaires and to reveal such information only in the light of the progress of the investigation. Yet it is clear from the last sentence of Article 6(2) of the basic regulation that an extension of the time-limit for replying to the questionnaire will be granted only if the interested party shows due cause, in terms of its particular circumstances. No extension of that time-limit was requested or granted in the present case.
62 The conclusion regarding the late submission of the information in question is not affected by the interpretation of Article 18(1) of the basic regulation in the light of the corresponding provisions of the Anti-Dumping Agreement.
63 While it is evident from the wording of Article 18(1) of the basic regulation that the facts available may be used in cases in which necessary information is not provided within the time-limits provided for by that regulation, Article 6.8 of the Anti-Dumping Agreement allows the facts available to be used if necessary information is not provided within a ‘reasonable period’. That notion was interpreted by the WTO appellate body in paragraphs 82 to 90 of its report entitled ‘United States — Anti-dumping measures on certain hot-rolled steel products from Japan’ (WT/DS184/AB/R), adopted on 24 July 2001 (‘the US and Japan appellate body report’), on which the applicants rely.
64 However, the Council raised a plea of inadmissibility in respect of the applicants’ argument concerning that report, arguing that it had been put forward for the first time in the applicants’ reply.
65 It is clear in this case from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the General Court that no new plea in law may be introduced after the application has been lodged unless that plea is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the application and which is closely linked to it must be declared admissible (see, to that effect, Case 108/81 Amylum v Council [1982] ECR 3107, paragraphs 25 and 26, and Case T‑345/05 Mote v Parliament [2008] ECR II‑2849, paragraph 85).
66 In the present case, the argument at issue merely develops the applicants’ reasoning that the information concerning the activities of the two companies whose existence had not been mentioned initially was produced to the Commission within the time-limit the Commission had set, that is to say, during the investigation and, therefore, in good time. Moreover, the applicants were responding to an argument raised by the Council which, in referring to the US and Japan appellate body report, was attempting to establish the opposite.
67 It follows from this that the plea alleging that the argument in question is inadmissible must be rejected.
68 The appellate body interpreted Article 6.8 in conjunction with Article 6.1.1 of the Anti-Dumping Agreement and also with paragraph 3 of Annex II thereto, since, ‘[t]aken together, these provisions establish a coherent framework for the treatment, by investigating authorities, of information submitted by interested parties’. It stated that the meaning of ‘reasonable period’, as referred to in Article 6.8 of the Anti-Dumping Agreement, was in fact the same as ‘in a timely fashion’, as provided in paragraph 3 of Annex II to that agreement (paragraphs 82 and 83 of the US and Japan appellate body report).
69 The appellate body rejected the United States’ approach whereby investigating authorities were entitled to reject information provided by interested parties solely on the ground that it had been submitted after the deadline for replying to a questionnaire. That interpretation was considered unacceptable in the light of Article 6.8 of the Anti-Dumping Agreement (paragraphs 87 to 90 of the US and Japan appellate body report; see also paragraph 7.49 of the Korea and Indonesia panel report).
70 On the other hand, it considered that reasonableness should be defined on a case‑by-case basis, in the light of the specific circumstances of each investigation, taking into account factors such as the nature and quantity of the information submitted; the difficulties encountered by an investigated exporter in obtaining the information; the verifiability of the information and the ease with which it could be used by the investigating authorities in making their determination; whether other interested parties were likely to be prejudiced if the information was used; whether acceptance of the information would compromise the ability of the investigating authorities to conduct the investigation expeditiously; and the number of days by which the investigated exporter missed the applicable time-limit (paragraphs 83 to 85 of the US and Japan appellate body report).
71 Moreover, in paragraph 86 of its report, the appellate body emphasised the fact that, in determining whether information had been submitted within a reasonable period of time, it was proper for investigating authorities to attach importance to the time-limit fixed for questionnaire responses, and to the need to ensure that the investigation was conducted in an orderly fashion. Articles 6.8 and 6.14 of the Anti-Dumping Agreement and paragraph 1 of Annex II thereto are not a licence for interested parties simply to disregard the time-limits fixed by investigating authorities, and are not intended to prevent the authorities of a WTO member from proceeding expeditiously with regard, inter alia, to reaching determinations.
72 It follows from the relevant provisions of the Anti-Dumping Agreement, as interpreted in the US and Japan appellate body report, that, while simply missing the deadlines for replying to an anti-dumping questionnaire cannot, by itself, lead automatically to the rejection of information submitted by an interested party, neither can the application of the factors mentioned — on an indicative basis, prefaced as they are by the expression ‘such as’ — in paragraph 85 of that report give the interested parties the opportunity to miss, without due cause, the deadlines set by investigating authorities for replying to questionnaires. The notion of a reasonable period, as interpreted by the appellate body consistently with the notions of flexibility and balance, is, therefore, merely intended to relax the rigour of deadlines for replying to questionnaires, in cases in which there is justification for doing so (see, to that effect, paragraph 84 of the US and Japan appellate body report.)
73 As is apparent from paragraph 86 of the US and Japan appellate body report, the assessment of the factors mentioned in paragraph 85 thereof must turn on the time-limits imposed by the investigating authorities, which must be taken as a reference point. The extent to which a missed deadline can be tolerated must therefore necessarily be limited — as evidenced in particular by the last factor mentioned in paragraph 70 above: the number of ‘days’ by which the investigated exporter missed the applicable time-limit — otherwise the investigating authorities would no longer be in a position to ensure the orderly conduct of the investigation and to reach their conclusions promptly, which would run counter to the spirit of the Anti-Dumping Agreement.
74 It must be noted, as regards the first factor mentioned in paragraph 70 above, that the nature of the information that was omitted was very simple, as question A-3.9 merely required interested parties to outline the world-wide structure of their group. The quantity of that information was necessarily very limited. By contrast, the information provided by the applicants on 25 and 26 July 2011 was more complex, in so far as the applicants wished, in particular, to prove that the non‑disclosure of the existence of Micawa and Gaoming Annwa in the reply to the anti-dumping questionnaire had no effect on the calculation of the dumping margin for the Kito Group. It consisted in approximately 20 pages of copies of documents said to have been issued by the Chinese authorities, and their translation into English. Analysis of that factor therefore provides an indication that the period within which the information in question was submitted was unreasonable.
75 As regards the second criterion mentioned in paragraph 70 above, it appears that the applicants have not established that there was any difficulty in providing the information that was omitted. Analysis of that factor therefore also provides an indication that the period within which the information in question was submitted was unreasonable.
76 With regard to the third factor mentioned in paragraph 70 above, it must be concluded that the failure to disclose the existence of Micawa and Gaoming Annwa in the anti-dumping questionnaire cannot mean that the Commission is obliged to limit its investigation and verification to the documents purportedly issued by local authorities and is unable to carry out the checks it deems appropriate. Moreover, in any event, it is not clear and obvious from the documents provided by the applicants that the two companies omitted from the replies to the anti-dumping questionnaire were not involved with the product concerned, with the result that a more thorough investigation than a desk-based investigation would be justified. Those documents cannot therefore be regarded as being verifiable and easy to use by the Commission in the context of the investigation.
77 In the first place, the information relating to the registration of Micawa does not specify the object of its business. Furthermore, according to a statement made at the hearing by the applicants’ representative, Micawa’s business licence mentions the production of ceramic tiles.
78 In the second place, Micawa’s pollution permit, which mentions, under ‘Industry Type’, the ‘manufacture of sanitary product’, and on which the applicants base their argument that that company does not produce ceramic tiles, was issued following an on-the-spot investigation by the local authorities. Although the WTO panel stated in paragraph 7.358 of its EC and Norway report that on-the-spot investigations were not the only way for investigating authorities to verify information, and although the Commission may take the view, on a case-by-case basis, that a desk-based review is sufficient, there is no reason why the Commission should have had to be content in this instance with a lesser investigation than the local authorities with regard to verification of the companies’ activities, particularly in the particular circumstances of this case (see paragraph 55 above). According to paragraph 7.52 of the Korea and Indonesia panel report, it would be unfair to expect an investigating authority to carry out a second visit to verify belatedly submitted information.
79 In the third place, given that specific equipment would be required for the manufacture of ceramic tiles, the Commission could, according to the applicants, easily have verified that the product concerned was not manufactured by Micawa and Gaoming Annwa, for instance by obtaining information concerning the equipment in their possession from the competent Chinese authorities. To that end, the applicants submit, in Annexes 1 and 2 to their comments on the intervention by Cerame-Unie and Others, two certificates which, according to the applicants, were issued by the local authorities, showing that Micawa does not have the necessary equipment to manufacture ceramic tiles. In that regard, first of all, the documents which the applicants submitted to the Commission in their letters of 25 and 26 July 2011 do not mention the list of equipment available to Micawa and Gaoming Annwa. Next, where, as in this case, the applicants are seeking to demonstrate that the information which they failed to disclose in their replies to the anti-dumping questionnaire has no bearing on the determinations already made by the Commission, the Commission cannot be criticised for not actively seeking to ascertain whether the accuracy of their assertions could be confirmed by other evidence or from sources other than those which the applicants had disclosed to it. Lastly, the documents supplied in Annexes 1 and 2 of the applicants’ comments on the intervention by Cerame-Unie and Others were not brought to the attention of the EU institutions before the adoption of the contested regulation. Furthermore, the document submitted in Annex 1 is undated and the document submitted in Annex 2 was not drawn up until 29 September 2012, that is after the adoption of the contested regulation. Consequently, those documents cannot be taken into consideration in assessing the lawfulness of that regulation (see, to that effect, Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7; Case 114/83 Société d’initiatives et de coopération agricoles v Commission [1984] ECR 2589, paragraph 22; and Joined Cases T‑111/01 and T‑133/01 Saxonia Edelmetalle and ZEMAG v Commission [2005] ECR II‑1579, paragraph 67).
80 In the fourth place, although the information relating to the registration of Gaoming Annwa does not mention the manufacture of the product concerned under ‘business scope’, it is evident from the ‘History’ and ‘About Annwa’ tabs on the company’s internet site — referred to in the documents which the Commission received from a third party following final disclosure to the applicants, and to which the applicants refer in order to substantiate their assertions — that that company sells, or even manufactures, the products concerned and that it wishes to attain a strong position, inter alia, on the European market.
81 In the fifth place, the difficulty of taking that information into account also stems from the belated nature of its disclosure to the Commission (see, to that effect, paragraphs 84 to 88 below).
82 Analysis of the third factor mentioned in paragraph 70 above therefore also provides an indication that the period within which the information in question was submitted was unreasonable.
83 Regarding the fourth factor mentioned in paragraph 70 above, it is not apparent either from the parties’ arguments or from the file that the use of the information belatedly produced by the applicants might have prejudiced the other interested parties in the investigation. This, therefore, provides an indication that the period within which the information in question was submitted was reasonable.
84 As to the fifth and sixth factors mentioned in paragraph 70 above, the information concerning Micawa and Gaoming Annwa was provided not just a few days late, but on 25 July 2011, that is to say, more than 10 months after the deadline for replying to the anti-dumping questionnaire, and then only following an express request to that effect by the Commission. As the Council and the interveners correctly submit, the existence of those companies was confirmed only at the very end of the administrative procedure. The same applies to the information about their activities.
85 Under Article 6(9) of the basic regulation, for proceedings initiated pursuant to Article 5(9) thereof, investigations are in all cases to be concluded within 15 months of initiation. Since the investigation to which the present dispute relates was launched by the notice of initiation of 19 June 2010 (paragraph 3 above), it was required to be concluded no later than 18 September 2011. In accordance with Article 9(4) of the basic regulation, the Council must have at least one month to decide what action to take on a termination proposal, so that the Commission was required to send the Council its proposal by 18 August 2011 at the latest.
86 This proposal can be made only after the Advisory Committee has been consulted. Although there is provision in Article 15(1) and (3) of the basic regulation for that consultation to take place within a period which allows the time-limits set by that regulation to be adhered to, the committee must have an appropriate amount of time to study the documents submitted to it if the consultation is to be effective. The period of at least 10 working days provided for in Article 15(2), equivalent in fact to a minimum of 12 calendar days, must be regarded as appropriate where it is decided that an oral consultation is to be held. Furthermore, the importance of that consultation is underlined by the fact that it is an essential procedural requirement, breach of which may affect the legality of the act adopted subsequently if it is proved that failure to forward certain material information did not allow the committee to deliver its opinion in full knowledge of the facts, that is to say, without being misled in a material respect by inaccuracies or omissions (see, to that effect, Case T‑290/94 Kaysersberg v Commission [1997] ECR II‑2137, paragraph 88; Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR v Commission [2000] ECR II‑491, paragraph 742; and judgment of 17 February 2011 in Case T‑122/09 Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, not published in the ECR, paragraph 104).
87 It follows from this that the provision of information that was new and potentially capable of calling into question the findings relating to the applicants, at as late a stage in the procedure as was the case in this instance — approximately 26 days before the end of the period provided by the basic regulation for the proposal to be forwarded to the Council, or approximately 12 days before referral to the Advisory Committee — and at a time when the Commission’s essential determinations had already been made, unquestionably runs counter to the objective of ensuring the orderly conduct of the investigation and of reaching conclusions promptly (see, to that effect, paragraph 86 of the US and Japan appellate body report). The effect of an obligation to take account of new and significant information at that stage of the administrative procedure would be to expose the institutions to the risk of failure to comply with the time-limits laid down.
88 That conclusion is, moreover, supported by paragraph 7.54 of the Korea and Indonesia panel report, according to which information that had been provided at a much earlier stage of the investigation than is the case here, namely after the on‑the-spot verification, but two weeks before the preliminary determination, and five months before the final determination, had to be regarded as having been received with a ‘substantial’ delay.
89 The point is further reinforced by the fact that the information in question was not volunteered. Had it been, it would have been for the Commission actively to investigate, on the basis of the information received from third parties, what further relevant information the interested parties might have in addition to the information already disclosed in their replies to the questionnaire.
90 Analysis of those last two factors therefore provides a very strong indication that the period within which the information in question was submitted was unreasonable.
91 It follows from paragraphs 72 to 90 above that, taken together, the factors considered demonstrate that the period of time by which the deadline for providing information concerning Micawa and Gaoming Annwa was missed was not reasonable.
92 Furthermore, it is apparent from Article 6.1.1 of the Anti-Dumping Agreement, interpreted in conjunction with Articles 6.8 and 6.14 thereof and with paragraph 3 of Annex II thereto, that the interested party must state the reasons why the information in question could not be provided within the time-limits for submission of replies to the anti-dumping questionnaires. The applicants claim that they took the view that the companies of the Lehua Group were going to disclose the existence of Micawa and Gaoming Annwa, which are related to that group. However, it is not disputed as between the parties that Micawa and Gaoming Annwa are related to the applicants within the meaning of the glossary in Annex II to the anti-dumping questionnaire (see paragraph 7 above), and therefore all the applicants should have mentioned them in response to question A-3.9. The information in question was in their possession and there was nothing to prevent it from being communicated to the Commission within the time-limit laid down for submission of replies to anti-dumping questionnaires. Moreover, even the applicants considered to belong to the Lehua Group did not claim that they had disclosed the existence of the two companies in question.
93 It follows from this that the reasons put forward by the applicants to justify the delay in providing that information are not credible and cannot be accepted.
94 The delay in the submission of the information in question therefore bears out the conclusion reached in paragraph 56 above.
95 The institutions did not, therefore, err in making their findings regarding the individual dumping margin for the Kito Group on the basis of the facts available, pursuant to Article 18(1) of the basic regulation.
96 Secondly, in any event, the conditions for the application of Article 18(3) of the basic regulation are not met.
97 Article 18(3) is not intended to apply where findings are made, in accordance with Article 18(1) of the basic regulation, on the basis of the facts available.
98 It follows from paragraphs 268 and 269 of the judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, cited in paragraph 39 above, that paragraphs 1 and 3 of Article 18 of the basic regulation concern different situations. Thus, whereas Article 18(1) of the basic regulation sets out in general terms cases in which the information needed by the institutions for the purposes of the investigation has not been supplied, Article 18(3) of the basic regulation contemplates the cases in which the information necessary for the purposes of the investigation has been supplied but is not ideal in all respects, with the result that the facts available do not necessarily have to be used.
99 However, it has just been held that the institutions did not err in resorting to the facts available when establishing the individual dumping margin for the Kito Group. Therefore, Article 18(3) of the basic regulation is not applicable to the making of those findings.
100 Moreover, Article 18(3) of the basic regulation provides that, where the information submitted by an interested party is not ideal in all respects, it should nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability. It is evident from the wording of that provision that the four conditions are to be applied cumulatively. Accordingly, if just one of them is not satisfied, that provision cannot be applied and the information in question cannot be taken into account.
101 Those conditions must be assessed, on the one hand, in relation to the information concerning Micawa and Gaoming Annwa submitted on 25 July 2011, and, on the other, in relation to the information supplied previously concerning the other companies of the Kito Group.
102 In the first place, as regards the information concerning Micawa and Gaoming Annwa submitted on 25 July 2011, it is, first of all, apparent from the case-law that a failure to meet the condition requiring the interested parties to have acted to the best of their abilities is in itself sufficient to rule out the application of Article 18(3) of the basic regulation (Sun Sang Kong Yuen Shoes Factory v Council, cited in paragraph 40 above, paragraphs 105 and 106, and Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, cited in paragraph 39 above, paragraph 271).
103 In that regard, the WTO appellate body indicated in paragraph 102 of its US and Japan report that, while investigating authorities are not entitled to insist upon absolute standards or impose unreasonable burdens upon investigated exporters, they are entitled to expect a very significant degree of effort — to the ‘best of their abilities’ — from investigated exporters as regards their cooperation in the investigation.
104 In the present case, the condition requiring the interested parties to act to the best of their abilities cannot be regarded as having been satisfied by the applicants who, without any due cause, omitted to provide the necessary information even though it was in their possession before the deadline for replying to the anti‑dumping questionnaire expired, and who provided it only very belatedly when they were confronted with the documents sent to the Commission by third parties.
105 Article 18(3) of the basic regulation does not, therefore, in any event require the institutions to take into account the information concerning Micawa and Gaoming Annwa submitted on 25 July 2011.
106 Next, as regards the condition requiring information to be provided ‘in a timely fashion’, it is apparent from paragraph 68 above that that expression, which is used in paragraph 3 of Annex II to the Anti-Dumping Agreement and which, together with paragraph 5 of that annex, lays down, in essence, the same rule as Article 18(3) of the basic regulation, is in fact the same as the concept of a reasonable period, referred to in Article 6.8 of the Anti-Dumping Agreement. However, it follows from paragraphs 68 to 93 above, in relation to the assessment of the reasonableness of the period within which the information in question was submitted, that that condition has not been met either. The finding in the preceding paragraph of the present judgment is, therefore, borne out.
107 Lastly, as regards the condition that any deficiencies should not be such as to cause undue difficulty in arriving at a reasonably accurate finding, and the condition relating to the verifiability of the information in question, examination of the third, fifth and sixth factors set out in paragraph 70 above — relating, respectively, to the verifiability of the information and the ease with which it can be used by the investigating authorities in making their determination; the question whether acceptance of the information would compromise the ability of the investigating authorities to conduct the investigation expeditiously; and the numbers of days by which the investigated exporter missed the applicable time‑limit — shows that those conditions also are not satisfied.
108 It has, in particular, been held that those documents cannot be regarded as being verifiable and easy to use by the Commission in the context of the investigation (paragraph 76 above). Moreover, the provision of information that was new and potentially capable of calling into question the findings relating to the applicants, at as late a stage in the procedure as was the case in this instance, unquestionably runs counter to the objective of ensuring the orderly conduct of the investigation and of reaching conclusions promptly. The effect of an obligation to take account of new and significant information at that stage of the administrative procedure would be to expose the institutions to the risk of failure to comply with the time‑limits laid down (paragraph 87 above).
109 These considerations also therefore preclude the institutions from taking into account, pursuant to Article 18(3) of the basic regulation, the information concerning Micawa and Gaoming Annwa submitted on 25 July 2011.
110 In the second place, as regards the information supplied previously concerning the other companies of the group, it has already been noted in paragraph 50 above that it is stated in paragraphs 7.60 to 7.62 and 7.67 of the US and India panel report that a decision to reject certain information may have consequences for the rest of the information submitted and, depending on the specific facts and circumstances of the case, may justify the decision to reject other information which, if it were considered separately, would be satisfactory.
111 However, as is apparent from paragraph 49 above, the lack of full and wholly reliable information regarding the precise composition of the whole group of companies in question casts serious doubt on the accuracy of the Commission’s entire calculation, undermining, as a result, the usefulness of the information the applicants had previously provided in relation to other companies in the group. In those circumstances, it would be unduly difficult, if not impossible, to arrive at a reasonably accurate finding on the basis of that information, in the light of its relationship to rejected information.
112 It follows from this that Article 18(3) of the basic regulation also cannot compel the institutions to take that information into account.
113 Consequently the first plea in law must be rejected.
Second plea in law: infringement of the obligation to state reasons
114 The applicants claim, in essence, that, given the circumstances of this case, the Council infringed Article 296 TFEU in not stating sufficient reasons for the application of Article 18 of the basic regulation, and that therefore they were not in a position to defend themselves to the best of their ability.
115 In the first place, the applicants argue that neither the communications sent to them by the Commission during the investigation nor the contested regulation specified whether Article 18(1) or (3) of the basic regulation had been applied. Paragraphs 1 and 3 of Article 18 of the basic regulation relate to very different situations and have different rules. The applicants none the less admit retrospectively that the institutions appear to have applied Article 18(1) of the basic regulation.
116 In the second place, the applicants claim, in essence, that, in its letter of 20 July 2011, the Commission merely asked them for their comments on the failure to disclose the existence of related companies involved with the product concerned, and that they were unable subsequently to establish whether the institutions had considered the information the applicants had provided in their comments on the activities of those related companies to be inadequate, resulting in the possible application of Article 18(3) of the basic regulation.
117 In the third place, although the two paragraphs in question are alternatives, the institutions had given no adequate explanation as to why they considered Article 18(1) of the basic regulation applicable rather than Article 18(3). The Council had therefore failed to state clear reasons why the information provided by the applicants during the administrative procedure could not be used ‘without undue difficulties in the light of its relationship to rejected information’, as stipulated in paragraph 7.61 of the US and India panel report.
118 In the fourth place, the applicants wonder why, in applying Article 18 of the basic regulation, the Commission and the contested regulation refer only to the Kito Group, and do not mention the Lehua Group.
119 The Council and the interveners, on the other hand, contend that the institutions have fully complied with their obligation to state reasons.
120 It is apparent from case-law that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the Courts to exercise their power of review. It is not, however, necessary for the reasoning to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 October 2012 in Case T‑170/09 Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, not published in the ECR, paragraph 126 and the case-law cited). Moreover, the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to its observations submitted during the administrative procedure (Sun Sang Kong Yuen Shoes Factory v Council, cited in paragraph 40 above, paragraph 150). In particular, the statement of the reasons on which anti-dumping regulations are based is not required to specify the often very numerous and complex matters of fact and law dealt with in the regulations, provided that they fall within the general scheme of the body of measures of which they form part. It is sufficient for the reasoning of the institutions in the regulations to appear clearly and unequivocally (Case T‑2/95 Industrie des poudres sphériques v Council [1998] ECR II‑3939, paragraph 357).
121 In the first place, it is clear both from recital 54 in the contested regulation and from the Commission’s letters of 20 and 25 July 2011 that the institutions referred to paragraph 1 of Article 18 of the basic regulation, not to paragraph 3. Indeed, they mentioned the application of the ‘facts available’, which are envisaged only in the first of those two paragraphs. The applicants themselves, moreover, acknowledged in the reply that it appeared retrospectively that it was Article 18(1) of the basic regulation that had been applied.
122 In the second place, suffice it to note that it is evident from the Commission’s reply of 25 July 2011 that the applicants were informed that, in the Commission’s view, they had provided an incomplete answer to question A-3.9 of the questionnaire and that it was consequently intending to use the facts available. Furthermore, by letter of 26 July 2011, the applicants put forward arguments intended to counter the Commission’s approach. It follows from this that the applicants’ line of argument, set out in paragraph 116 above, must be rejected as unfounded.
123 In the third place, it is sufficiently clear from recital 54 in the contested regulation that the institutions considered that the existence of Micawa and Gaoming Annwa had been disclosed only at a very late stage in the administrative procedure, namely ‘following final disclosure’, and that the fact that the information regarding the activities of those two companies could not be accepted meant that the findings for the group to which the applicants belonged could no longer be regarded as complete. Those circumstances meant that the institutions were not in a position to make ‘a proper assessment and verification of the group’s activities in relation to the product concerned’.
124 As already stated in paragraphs 47 and 49 above, it is not disputed by the applicants that, owing to the need to prevent anti-dumping duties from being circumvented by means of the exporting producer undertakings with the lowest anti-dumping duty rates, the final individual dumping margins are calculated not by companies but by groups of related companies as a weighted average of the dumping margins of the companies which those groups comprise. It is, moreover, evident from the applicants’ letters of 26 July and 25 August 2011 that they were well aware of the method of calculating the individual dumping margin for a group such as the group to which they belonged, from which it follows that the Commission must be informed not only of the existence and identity of companies that are related and involved in the production and sale to the European Union of the product concerned, but also of all other related companies, so that it can assess whether verification of their possible involvement with the product concerned is necessary, or carry out such verification as it considers appropriate. Thus, the lack of full and wholly reliable information regarding the precise composition of the whole group of companies in question casts serious doubt on the accuracy of the Commission’s entire calculation, undermining, as a result, the usefulness of the information the applicants had previously provided in relation to other companies in the group. Accordingly, the applicants are not justified in maintaining that rejection of the information concerning the activities of the two companies in question would have no bearing on the information previously supplied.
125 It follows from this that, taking into consideration not only all the legal rules governing anti-dumping proceedings and the context of the anti-dumping proceeding following which the contested regulation was adopted, but also the procedure for making the determinations in question which neither the applicants nor their advisers could disregard, the institutions have, to the requisite legal standard, given reasons for the fact that the information provided during the administrative procedure could no longer be used without undue difficulty in the light of its relationship to rejected information. Having regard to the application, it must also be held that the statement of reasons in the contested regulation was such as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights. Likewise, that statement of reasons enabled the Court to exercise fully its power of review.
126 In the fourth place, as regards the applicants’ assertion that the contested regulation refers only to the Kito Group, without mentioning the Lehua Group, the Council and the interveners rightly contend that the applicants do not make clear how that would invalidate the contested regulation. In any event, the institutions regarded all the applicants as being part of the Kito Group, and this was not challenged by the applicants during the investigation. Further, it is apparent from the last paragraph of the applicants’ letter of 26 July 2011 that they themselves had indicated that they all belonged to the Kito Group. That is why, in so far as that assertion should be regarded as an argument in support of the second plea, it should be rejected as unfounded.
127 The second plea in law must therefore be rejected as unfounded.
Third plea in law: breach of the general principles of sound administration and transparency, and of the rights of the defence, and infringement of Article 20(2) and Article 18(4) of the basic regulation
128 In the first place, the applicants believe that the Council based its decision to use the facts available on information submitted to the Commission by an apparently unknown party, in circumstances where the validity and origin of the information appear dubious. In particular, the documents in question were apparently fabricated for the purpose of the investigation. Certain faults identified should have been apparent to the Commission as well, for example an English abbreviation in an official Chinese-language document.
129 In the second place, the applicants claim that they did their utmost to cooperate fully throughout the investigation and submitted correct and necessary information, which was verified in detail on site. Despite this allegedly good cooperation, the institutions made no attempt to engage with the applicants with a view to clarifying the matter. Furthermore, on 25 July 2011, the Council decided to apply Article 18 of the basic regulation only a few hours after replying to the applicants. That behaviour on the part of the institutions was therefore not transparent; it was arbitrary and therefore in breach of the principle of sound administration.
130 In the third place, the applicants note that the rights of the defence must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti‑dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (Case C‑49/88 Al-Jubail Fertilizer v Council [1991] ECR I‑3187, paragraphs 15 and 17).
131 However, contrary to that case-law and to Article 20(2) and Article 18(4) of the basic regulation, the applicants were not informed of the reasons why the information they had submitted on 25 and 26 July 2011 was insufficient to refute the allegations of which they had been notified by the Commission, or of the essential considerations on the basis of which the Commission was intending to recommend the imposition of definitive measures, and were not given the opportunity to provide additional information. The applicants were therefore not in a position to defend their rights effectively.
132 The Council and the interveners dispute the applicants’ arguments.
133 In that regard, first, it must be noted that the institutions did not base their decision to use the facts available on the documents received from a third party, but on the applicants’ acknowledgement of the fact that they had not disclosed the two related companies in the anti-dumping questionnaire and in the subsequent stages of the administrative procedure. The Court cannot therefore find any breach of the obligation of sound administration and transparency in that respect.
134 Secondly, as regards the fact that the Commission did not verify the documents and information which the applicants sent it on 25 and 26 July 2011, it is sufficiently clear from the analysis carried out in connection with the first plea that the institutions did not err in making use of the facts available when establishing the individual dumping margin for the Kito Group. Accordingly, the Commission did not act in an arbitrary fashion or in breach of its duty of sound administration.
135 Thirdly, so far as concerns the claim of an infringement of Article 20(2) of the basic regulation, it should be borne in mind that Article 20(2) provides that ‘[t]he 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’. That provision therefore relates to the information which the Commission must communicate to the interested parties in the final disclosure document.
136 However, the information that the applicants had not revealed the existence of the companies Micawa and Gaoming Annwa in their questionnaires was brought to the Commission’s attention only after final disclosure (paragraph 12 above), which the applicants have not disputed. The applicants were, moreover, immediately given an opportunity to comment on that information.
137 Article 20(2) of the basic regulation cannot therefore be considered to have been infringed in the present case.
138 Fourthly, as to the arguments that the Commission infringed Article 18(4) of the basic regulation, or generally the applicants’ rights of defence, it should be borne in mind, first of all, that, in its reply of 25 July 2011, the Commission informed the applicants that it noted that they had confirmed the existence of two companies which had not previously been disclosed, and that it was intending to use the facts available, in application of Article 18 of the basic regulation.
139 Next, while the Commission was not explicit, in its letters of 25 July and 25 August 2011, as regards the reasons for rejecting the information provided by the applicants, these should have been evident for prudent traders aware of the legal rules governing anti-dumping proceedings, the context of the anti-dumping procedure following which the contested regulation was adopted, and the procedure for making the determinations in question.
140 Taking advantage of the Commission’s invitation to comment on the intended use of the facts available, the applicants stated first of all that, in their opinion, it was immaterial that they had not disclosed the existence of the two related companies, since those companies did not produce the product concerned, and that they were related only indirectly through private holdings. In so far as Gaoming Annwa was marketing the product concerned, it had not exported it to the European Union during the investigation period. The information that was omitted was not ‘necessary’ within the meaning of Article 18 of the basic regulation, since the data for the companies that were related but not involved with the product concerned was not taken into account in calculating the dumping margin for the Group. On the other hand, the applicants admitted that they would consider the application of Article 18 of the basic regulation justified if the two companies had been involved with the product concerned. They went on to emphasise that they had participated fully in the investigation and had not intentionally omitted to mention the two companies. Lastly, the applicants argued that the omission did not in any case justify calling into question conclusions based on facts already verified by the Commission.
141 It follows from this, in the first place, that the applicants were able to put their case properly as regards the Commission’s intention to use the facts available. In the second place, the applicants are not justified in claiming that they could legitimately expect the institutions to apply Article 18(3) of the basic regulation in their case. They were or ought to have been aware of the fact that, in view of the situation in this case, the Commission was intending to use the facts available instead of all the information, including that previously supplied, relating to the calculation of the individual dumping margin for the Kito Group.
142 Those arguments must therefore be rejected, with the result that the third plea in law must be rejected as unfounded.
143 It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
144 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the Council.
145 In addition, in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently the Commission, which intervened in support of the form of order sought by the Council, must bear its own costs.
146 Finally, Cerame-Unie and Others must bear their own costs, in accordance with the third subparagraph of Article 87(4) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders the applicants to bear their own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs;
4. Orders Cerame-Unie AISBL, Associación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), Confindustria Ceramica, Casalgrande Padana SpA and Etruria Design Srl to bear their own costs.
Forwood | Dehousse | Schwarcz |
Delivered in open court in Luxembourg on 22 May 2014.
[Signatures]