Case T‑528/09

Hubei Xinyegang Steel Co. Ltd

v

Council of the European Union

(Dumping — Imports of certain seamless pipes and tubes of iron or steel originating in China — Determination of a threat of injury — Article 3(9) and Article 9(4) of Regulation (EC) No 384/96 (now Article 3(9) and Article 9(4) of Regulation (EC) No 1225/2009))

Summary — Judgment of the General Court (Second Chamber), 29 January 2014

1.      Common commercial policy — Protection against dumping — Imposition of anti-dumping duties — Conditions — Injury — Discretion of the institutions — Vulnerable position of the Community industry — Position contradicted by the relevant economic data — Manifest error of assessment

(Council Regulations No 384/96, Art. 3(9), and No 1225/2009, Art. 3(9))

2.      Common commercial policy — Protection against dumping — Imposition of anti-dumping duties — Conditions — Injury — Threat of serious injury — Analysis of the factors to be taken into consideration

(Council Regulations No 384/96, Arts 3(9), and 9(4), and No 1225/2009, Arts 3(9), and 9(4))

1.      Judicial review of the examination as to the existence of a threat of injury, as carried out by the EU institutions in an anti-dumping proceeding must 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 have been manifest errors in the assessment of those facts or a misuse of powers, as that examination involves the assessment of complex economic questions. That limited judicial review does not mean that the EU judicature must refrain from reviewing the institutions’ interpretation of information of an economic nature. In particular, the Court must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.

The Council thus makes a manifest error of assessment in holding that the Community industry is in a vulnerable situation, where the relevant economic data of the case are all positive, save for the development of the market share of the Community industry, and, on the whole, paint a picture of an industry in a situation of strength, not of fragility or vulnerability.

(see paras 53, 61, 66)

2.      Under Article 3(9) of basic anti-dumping Regulation No 384/96 (now Article 3(9) of Regulation No 1225/2009), a determination of a threat of material injury must be based on facts and not merely on an allegation, conjecture or remote possibility. Furthermore, the change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. It follows that the determination of a threat of injury must be clearly apparent from the circumstances of the case. It also follows that the injury threatened must be impending.

The Council thus infringes Article 3(9) of basic anti-dumping Regulation No 384/96 by holding that there is a threat of injury where, first, its finding that the Community industry was in a vulnerable position at the end of the investigation period is vitiated by a manifest error of assessment, and, second, the four factors laid down in Article 3(9) of the basic regulation relating to the analysis of a threat have been analysed in an incomplete and incoherent manner.

The Council thus also infringes Article 9(4) of basic anti-dumping Regulation No 384/96 (now Article 9(4) of Regulation No 1225/2009) by imposing a definitive anti-dumping duty on exports of the products in question and collecting provisional duties imposed on those exports.

(see paras 54, 91, 92)