Case T‑442/12
Changmao Biochemical Engineering Co. Ltd
v
Council of the European Union
(Dumping — Imports of tartaric acid originating in China — Modification of the definitive anti-dumping duty — Partial interim review — Market economy treatment — Costs of major inputs substantially reflecting market values — Change in circumstances — Obligation to state reasons — Period for adopting a decision on market economy treatment — Rights of the defence — Article 20(2) of Regulation (EC) No 1225/2009)
Summary — Judgment of the General Court (Eighth Chamber), 1 June 2017
1. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Burden of proof on producers — Assessment of the evidence by the institutions — Judicial review — Limits
(Council Regulation No 1225/2009, Art. 2(7)(a), (b) and (c))
2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Costs of the main inputs having largely to reflect market values — Burden of proof on producers
(Council Regulation No 1225/2009, Art. 2(7)(c), first indent)
3. Common commercial policy — Protection against dumping — Partial interim review of an anti-dumping duty — Discretion of the institutions — Change in the assessment of circumstances having justified the grant of market economy treatment at the conclusion of the initial investigation — Lawfulness
(Council Regulation No 1225/2009, Arts 2(7)(c), and 11(6))
4. Acts of the institutions — Statement of reasons — Obligation — Scope — Regulation imposing anti-dumping duties
(Art. 296 TFEU)
5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from countries not having a market economy as referred to in Article 2(7)(b) of Regulation No 1225/2009 — Procedure for assessing the conditions enabling a producer to benefit from market economy treatment — Commission exceeding the three-month time-limit laid down by Article 2(7)(c), second subparagraph, of that regulation — Consequences
(Council Regulation No 1225/2009, Art. 2(7)(a), (b), (c), second subparagraph)
6. Common commercial policy — Protection against dumping — Investigation — Observance of the rights of the defence — Duty of the institutions to keep the undertakings concerned informed, to respect the confidentiality of information, and to reconcile those obligations – Infringement of the obligation to provide information — Conditions — Refusal to provide information likely to be useful for the defence of the undertaking
(Council Regulation No 1225/2009, Art. 20(2))
7. Common commercial policy — Protection against dumping — Anti-dumping proceeding — Rights of defence — Judicial review — Account taken of grounds not constituting the basis of the measure which entailed alleged infringement of defence rights — Not permissible
(Council Regulation No 1225/2009, Art. 20(2))
1. See the text of the decision.
(see paras 41-46)
2. See the text of the decision.
(see paras 47-64)
3. In the context of the retrospective and prospective analysis which they must carry out for the purposes of the partial interim review of anti-dumping measures, the institutions may change their assessment of the circumstances having justified granting market economy treatment at the conclusion of the initial investigation.
It would be illogical if the institutions were required to apply Article 2(7)(c) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community in a manner which proved to be incorrect in the light of the evidence adduced in the context of the interim review on the sole ground that such an application had been effected during the initial investigation. Such a conclusion would be even more illogical given that, as provided in Article 11(6) of the basic regulation, only an interim review permits measures to be amended, whereas a review of expiring measures may lead solely to their repeal or maintenance.
(see paras 83, 84)
4. See the text of the decision.
(see paras 89-98)
5. As provided in the second subparagraph of Article 2(7)(c) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, the question whether the producer meets the criteria for granting market economy treatment referred to in the first subparagraph of that provision is to be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Union industry has been given an opportunity to comment.
However, that provision does not contain any indication as regards the consequences of the Commission’s failure to comply with the three-month period. Any failure to comply with that period does not automatically entail the annulment of the regulation adopted subsequently.
Failure to comply with the three-month period cannot affect the lawfulness of the contested regulation unless the undertaking concerned shows that, if the answer to the claim for market economy treatment had been provided within the time limits, it could have been different, and more favourable to the interests of that party.
(see paras 111, 113, 115)
6. As provided in Article 20(2) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, the parties 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.
Moreover, respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. Respect for that principle is of crucial importance in anti-dumping investigations.
In accordance with that principle, 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.
The obligation to provide information which is incumbent on the EU institutions in anti-dumping matters must be reconciled with the obligation to respect confidential information. However, the obligation to respect confidential information cannot deprive the applicant’s rights of defence of their substance. The sufficiency of the information provided by the EU institutions must be assessed in relation to how specific the request for information was.
As regards, more particularly, the Commission’s refusal to supply, to an undertaking concerned by an anti-dumping investigation, information as to the determination of the normal value of the products concerned, the fact of having the detailed calculations made by the Commission available to it and the data used for those calculations, is, in general, capable of enabling the interested parties to make observations that are more useful for their defence. They can then verify exactly how the Commission used those data and compare them with their own calculations, which would enable them to identify possible errors made by the Commission which would otherwise be undetectable. In addition, the undertaking concerned cannot be required to demonstrate that the institutions’ decision would have been different if it had had the said information, but simply that such a possibility cannot be totally ruled out since it would have been better able to defend itself if there had been no procedural error thus in fact affecting the rights of the defence.
(see paras 138-140, 142, 143, 156, 157)
7. The legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted, with the result that the General Court cannot substitute other grounds relied on for the first time before it for the grounds relied on during the investigation procedure.
Accordingly, the Commission’s refusal to supply, to an undertaking concerned by an anti-dumping investigation, information as to the determination of the normal value of the products concerned cannot be justified by a ground relied on during the oral procedure before the Court, namely the protection of the commercial interests of a competitor of the said undertaking.
(see para. 153)