Case T‑156/11

Since Hardware (Guangzhou) Co., Ltd

v

Council of the European Union

(Dumping — Imports of ironing boards originating in China — Proceeding initiated against a single company — Market economy treatment — Three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of Regulation (EC) No 1225/2009 — Burden of proof — Determination of injury)

Summary — Judgment of the General Court (Eighth Chamber), 18 September 2012

1.      Common commercial policy — Protection against dumping — Initiation of the investigation — Undertakings concerned — Whether it is possible to initiate an anti-dumping proceeding against a single producer

(General Agreement on Tariffs and Trade 1994, Art. VI.1; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, ‘Anti-dumping code of 1994’, Arts 1, 5.2(ii), 6.1.3, 6.7, 6.10 and 9.2; Council Regulation No 1225/2009, Arts. 5(1), (2), (7) and (9), 9(3) to (6), and 17)

2.      Common commercial policy — Protection against dumping — Review of factors justifying imposing anti-dumping duties — World Trade Organisation report excluding an exporter from the scope of anti-dumping measures adopted at the conclusion of the original procedure and prohibiting any review — Initiation of a new procedure against that exporter by the institutions — Lawfulness — Conditions

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, Art. 5.8; Council Regulation No 1225/2009, Art. 5)

3.      European Union law — Interpretation — Methods — Interpretation in the light of international agreements concluded by the Community — Interpretation of Regulation No 1225/2009 in the light of GATT anti-dumping Code 1994

(General Agreement on Tariffs and Trade 1994, Art VI.1; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade ‘Anti-dumping Code of 1994’; Council Regulation No 1225/2009)

4.      Common commercial policy — Protection against dumping — Termination of the proceedings — Dumping margin below 2% — Initiation of a new investigation — Discretion enjoyed by the institutions

(Council Regulation No 1225/2009, Art. 9(3))

5.      Common commercial policy — Protection against dumping — Injury — Factors to be taken into consideration — Initiation of a new investigation — Review procedure — Analysis to be carried out by the institutions — Scope

(Council Regulation No 1225/2009, Arts. 3(1) and 11(3))

6.      Common commercial policy — Protection against dumping — Fixing of anti-dumping duties — Period of validity — Council’s margin of discretion

(Council Regulation No 1225/2009, Art. 11(1) and (2))

7.      Actions for annulment — Grounds — Misuse of powers — Concept

(Art. 263 TFEU)

8.      Common commercial policy — Protection against dumping — Injury — Factors to be taken into consideration — Plurality — Discretion enjoyed by the institutions — Judicial review — Limits — Not all factors or indices pertaining to the state of the Union industry examined — Only factors relevant to the particular case taken into account — Manifest error of assessment — None

(Council Regulation No 1225/2009, Art. 3(5))

9.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Abstract statement of the grounds — Inadmissibility

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1))

10.    Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market-economy countries 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 — Failure by the Commission to comply with the three-month time‑limit laid down in the second subparagraph of Article 2(7)(c) of that regulation — Consequences

(Council Regulation No 1225/2009, Art. 2(7)(c))

11.    Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market-economy countries as referred to in Article 2(7)(b) of Regulation No 1225/2009 — Application of the rules for countries with a market economy — Application reserved for producers satisfying the cumulative conditions set out in Article 2(7)(c) of that regulation

(Council Regulation No 1225/2009, Art. 2(7)(c))

12.    Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market-economy countries as referred to in Article 2(7)(b) of Regulation No 1225/2009 — Application of the rules for countries with a market economy — Discretion enjoyed by the institutions — Judicial review — Limits — Burden of proof lying with producers

(Council Regulation No 1225/2009, Art. 2(7)(b) and (c))

1.      Whilst anti-dumping proceedings relate, in principle, to all imports of a certain category of products from a third country and not to products manufactured by specific undertakings, the wording of the provisions of Articles 5(1), (2), (7) and (9) and 17 of basic anti-dumping Regulation No 1225/2009 provides no support for the claim that an anti-dumping proceeding can never be initiated against a single producer. Moreover, Article 5(9) of the basic regulation cannot be interpreted as prohibiting the EU institutions, where a complaint has been properly lodged with them containing evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury, from initiating a proceeding against a single producer, if it was established in an earlier investigation that the producer in question had a zero or de minimis dumping margin and anti‑dumping measures are in force against all the other producers of the like product concerned.

Similarly, as Article 9(4) of Regulation No 1225/2009 simply provides that anti-dumping duty is to be imposed where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention, it does not impose any requirement as to the number of companies for which such facts must be established and on which it should be possible to impose anti-dumping duty. With regard to the requirement imposed in the second sentence of the first subparagraph of Article 9(5) of that regulation, to the effect that the regulation imposing the duty is to specify the duty for each supplier or, if that is impracticable, the supplying country concerned, the words ‘each supplier’ must be interpreted as referring to each supplier affected by the proceeding. That provision does not therefore require duty to be imposed on all the producers of the third country concerned. Support for that interpretation is also to be found in the wording of Article 9.2 of the Agreement on Implementation of Article VI of General Agreement on Tariffs and Trade 1994 (anti-dumping agreement), which expressly refers to the fact that the authorities are to name the supplier or suppliers of the product concerned.

Furthermore, it cannot be maintained that it is apparent from Article VI.1 of the General Agreement on Tariffs and Trade (GATT) and Article 1 of the anti-dumping agreement that a proceeding can never be initiated against a single producer. Article VI.1 GATT does not concern the initiation of proceedings or the number of producers against whom such proceedings may be directed. Nor do Article 5.2(ii) or Articles 6.1.3, 6.7, 6.10 and 9.2 of the anti-dumping agreement impose any restriction on the number of producers that may be targeted when proceedings are initiated.

(see paras 65, 68, 74, 76-77, 92-93)

2.      A World Trade Organisation Appellate Body report finding that an exporter did not have a margin above de minimis in an original investigation and was consequently to be excluded from definitive anti-dumping measures, without being subject to any review, cannot prevent the EU institutions from initiating a fresh proceeding against such an exporter if a complaint is properly lodged with them containing evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury.

It is on account of the fact that he is excluded from the anti‑dumping measure and his exports are exempt from duty that the producer concerned cannot be subject to reviews, since such reviews examine duty paid and the need for continued imposition of duty and are not therefore applicable to a producer with a de minimis margin.

(see paras 80, 82-83)

3.      EU legislation must be interpreted, so far as possible, in the light of international law, in particular where such legislation is specifically intended to implement an international agreement concluded by the Community, as is the case with basic anti-dumping Regulation No 1225/2009, which was adopted to meet international obligations arising under the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994. The primacy of international agreements concluded by the Community over provisions of secondary EU legislation means that such provisions must, so far as possible, be interpreted in a manner that is consistent with those agreements.

(see paras 108-109)

4.      Article 9(3) of basic anti-dumping Regulation No 1225/2009 simply provides that the institutions may carry out a review, but are not obliged to do so, if it has been established that an exporter has a de minimis margin. It is apparent from the wording of that provision that proceedings are to be terminated immediately in respect of individual exporters where it is found in the investigation that their dumping margin is de minimis and it is only the investigation that is to be terminated, since such exporters remain subject to the proceeding and may be reinvestigated in any subsequent review carried out.

It is apparent from the use of the modal verb ‘may’ that the institutions have the power, but are not under any obligation, during a review to reinvestigate a producer whose dumping margin was de minimis. That provision therefore confers on the institutions a discretion as to whether to reinvestigate individual exporters whose dumping margin was less than 2% in any subsequent review.

(see paras 110-112)

5.      See the text of the decision.

(see paras 119-123)

6.      See the text of the decision.

(see paras 125-126)

7.      See the text of the decision.

(see para. 130)

8.      See the text of the decision.

(see paras 134-143, 148)

9.      See the text of the decision.

(see para. 153)

10.    As a rule, any market economy treatment decision should, in accordance with the wording of the second subparagraph of Article 2(7)(c) of basic anti-dumping Regulation No 1225/2009, be taken within three months of the initiation of the investigation and that determination should remain in force throughout the investigation. However, the fact nevertheless remains that under EU law as it currently stands and according to the EU judicature’s interpretation of that provision, first, the adoption of a decision outside that period does not, by virtue of that fact alone, lead to the annulment of the regulation imposing anti‑dumping duty and, second, such a decision may be amended in the course of the proceeding if it proves to be incorrect.

Failure to comply with the three-month time‑limit can entail such annulment only if the applicant shows that, in the absence of such failure, the Council might have adopted a different regulation more favourable to its interests than the contested regulation.

Moreover, the Court did not find that the legal rationale of the second subparagraph of Article 2(7)(c) of the basic regulation justified the annulment of a regulation imposing definitive anti‑dumping duties on an undertaking every time the Commission was in a position to know the effect of a market economy treatment decision on the calculation of that undertaking’s dumping margin simply because it was in possession of such knowledge at the time that decision was taken. There is no immediate link between the three‑month time‑limit and any knowledge on the part of the Commission of the effect of a market economy treatment decision on an undertaking’s dumping margin. Furthermore, the basic regulation does not require that the market economy treatment decision should be adopted at a time when the Commission does not possess information enabling it to ascertain the effect of such a decision on an undertaking’s dumping margin. Even where the time‑limit has not in any way been exceeded at the time the market economy treatment decision is adopted, the Commission might take such a decision, notwithstanding the fact that it is already in possession of information enabling it to calculate its effect on the dumping margin of the undertaking concerned.

(see paras 160, 165, 167)

11.    See the text of the decision.

(see para. 177)

12.    In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of power.

The same applies to factual situations of a legal and political nature in the country concerned which the EU institutions must assess in order to determine whether an exporter operates under market conditions without significant State interference and may, accordingly, be granted market economy status.

However, whilst, in the sphere of measures to protect trade, in particular anti-dumping measures, the EU judicature cannot interfere in the assessment reserved to the EU authorities, its task is nevertheless to satisfy itself that the institutions have taken account of all the relevant circumstances and appraised the facts of the matter with all due care.

Moreover, it is apparent from Article 2(7)(c) of basic anti-dumping Regulation No 1225/2009 that the burden of proof lies with the producer wishing to claim market economy status. Article 2(7)(c) provides that a claim submitted under subparagraph (b) must be made in writing and contain sufficient evidence that the producer operates under market economy conditions. Accordingly, it is not incumbent on the EU institutions to prove that the producer does not satisfy the conditions laid down for recognition of such status. On the contrary, the task of those institutions is to assess whether the evidence supplied by the producer is sufficient to show that the requirements laid down in Article 2(7)(c) of the regulation are fulfilled and that of the EU judicature to examine whether that assessment is vitiated by a manifest error.

(see paras 182-185)