Case T‑6/12
(publication by extracts)

Godrej Industries Ltd
and
VVF Ltd

v

Council of the European Union

(Dumping — Imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia — Adjustment for currency conversion claimed — Burden of proof — Injury — Definitive anti-dumping duty)

Summary — Judgment of the General Court (Fourth Chamber), 6 September 2013

1.      Common commercial policy — Protection against dumping — Injury — Establishing a causal link — Obligations of the institutions — Whether factors extraneous to dumping to be taken into account — Non-attribution of damage caused by those factors

(Council Regulation No 1225/2009, Art. 3(6) and (7))

2.      Common commercial policy — Protection against dumping — Injury — Scope of the EU industry — Imports by an EU producer of products from countries covered by an anti-dumping investigation — Included — Such imports taken into account as ‘other factors’ within the meaning of Article 3(7) of Regulation No 1225/2009 — Lawfulness

(Council Regulation No 1225/2009, Arts 3(7) and 4(1)(a))

1.      It follows from Article 3(6) of the basic Regulation anti-dumping No 1225/2009 that the Union institutions must demonstrate that the dumped imports are causing significant injury to the EU industry, owing to their volume and price. That entails what is known as the ‘attribution analysis’. It also follows from Article 3(7) of the basic regulation that the institutions must examine all other known factors which are injuring the EU industry at the same time as the dumped imports and, moreover, ensure that the injury caused by those other factors is not attributed to the dumped imports. That entails what is known as the ‘non-attribution analysis’.

The objective of Article 3(6) and (7) of Regulation No 1225/2009 is therefore to ensure that the Union institutions separate and distinguish the injurious effects of the dumped imports from those caused by other factors. If the institutions do not separate and distinguish the impact of the various injury factors, they cannot legitimately conclude that the dumped imports have caused injury to the EU industry. Next, when determining the injury, the Council and the Commission must, in particular, examine whether the injury which they propose to find might have its cause in the conduct of EU producers themselves.

(see paras 62-64)

2.      The definition of the EU industry is contained in Article 4(1)(a) of basic anti-dumping Regulation No 1225/2009. The inclusion in the definition of the EU industry of a producer who is himself an importer of the allegedly dumped product does not automatically mean that his imports should no longer be considered to be one of the ‘other factors’ within the meaning of Article 3(7) of the basic regulation. Thus, the self-inflicted nature of the injury that might arise from the purchase by a Union producer of dumped products originating in countries covered by the anti-dumping investigation is one of the ‘other factors’ that the Commission and the Council must consider in the context of the injury analysis. However, it does not follow from either Regulation No 1225/2009 or the case-law that imports by a Union producer of dumped products originating in the countries covered by the investigation can never be taken into consideration in the injury analysis.

(see paras 65, 67)