Case T-190/08

Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF)

v

Council of the European Union

(Dumping – Imports of ferro-silicon originating in the former Yugoslav Republic of Macedonia, China, Egypt, Kazakhstan and Russia – Calculation of the export price – Profit margin – Price undertaking – Injury – Causal link – Complaint – Rights of the defence – Duty to state reasons)

Summary of the Judgment

1.      Common commercial policy – Protection against dumping – Dumping margin – Calculation of the export price

(Council Regulation No 384/96, Art. 2(9))

2.      Common commercial policy – Protection against dumping – Dumping margin – Calculation of the export price

(Council Regulation No 384/96, Art. 2(9))

3.      Acts of the institutions – Statement of reasons – Obligation – Scope – Adoption of a regulation imposing an anti-dumping duty

(Art. 253 EC)

4.      Common commercial policy – Protection against dumping – Early disclosure of a provisional disclosure document to a producer established in the former Yugoslav Republic of Macedonia

(Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, Art. 36(2); Council Regulation No 384/96)

5.      Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence

(Council Regulation No 384/96, Art. 20(1))

6.      Common commercial policy – Protection against dumping – Anti-dumping proceeding – Right of access to non-confidential documents relating to the proceeding

(Council Regulation No 384/96, Arts 6(7) and 8(4))

7.      Common commercial policy – Protection against dumping – Injury – Factors to be taken into consideration

(Council Regulation No 384/96, Arts 3(2), (5) and (6), 4(1) and 5(4))

8.      Common commercial policy – Protection against dumping – Injury – Establishing a causal link

(Council Regulation No 384/96, Art. 3(7))

1.      It is apparent from Article 2(9) of the basic anti-dumping regulation, Regulation No 384/96, (now Article 2(9) of Regulation No 1225/2009) that the Commission and the Council may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the institutions are required to base their determination of dumping on that price.

(see para. 26)

2.      Under the second subparagraph of Article 2(9) of the basic anti-dumping regulation, Regulation No 384/96, (now the second subparagraph of Article 2(9) of Regulation No 1225/2009), where the export price is constructed on the basis of the price to the first independent buyer, or on any reasonable basis, adjustment for all costs incurred between importation and resale, and for profits accruing, is to be made so as to establish a reliable export price, at the Community frontier level. The third subparagraph of Article 2(9) of the basic regulation (now the third subparagraph of Article 2(9) of Regulation No 1225/2009) provides that the items for which adjustment is to be made are to include a reasonable margin for selling, general and administrative costs and profit.

Although Article 2(9) of the basic regulation provides that an adjustment is to be made for a profit margin, that provision does not lay down the method for calculating or determining that margin. It merely states that the profit margin that is to be adjusted must be reasonable.

Such a reasonable profit margin may, where there is an association between producer and importer within the Community, be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer.

Accordingly, Article 2(9) of the basic regulation must be interpreted as giving institutions the choice between using the actual profit margin of the related importer and using a notional profit margin of unrelated importers, the sole obligation being that the margin must be reasonable.

In any event, in the field of measures to protect trade, the institutions enjoy a wide discretion and the powers of review enjoyed by the Courts of the European Union are restricted accordingly. In the application of that principle, no exception falls to be made for the determination of a reasonable profit margin since it necessarily entails complex economic assessments.

(see paras 27-30, 38)

3.      The statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the European Union authority which adopted the contested measure, so as to inform the persons concerned of the justification for the measure adopted and thus to enable them to defend their rights and the Courts of the European Union to exercise their powers of review.

In that regard, the Council is not required to reply, in the statement of reasons for the regulation imposing an anti-dumping duty, to all the points of fact and law raised by the persons concerned during the administrative procedure. Moreover, the statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it meets the applicable requirements must be assessed with particular regard to the context of the measure and to all the legal rules governing the matter in question. It is sufficient if the Council sets out the facts and legal considerations which have decisive importance in the context of such a regulation.

(see paras 44-45)

4.      Article 36(2) of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, provides that the Stabilisation and Association Council must be informed of the dumping case as soon as the anti-dumping investigation has been initiated and that if no end has been put to the dumping or no other satisfactory solution has been reached within 30 days of the matter being referred to the Stabilisation and Association Council, appropriate measures may be adopted. It is clear from that provision that exchanges between the Commission and exporting producers established in the former Yugoslav Republic of Macedonia must necessarily take place before provisional anti‑dumping measures are imposed; otherwise, no satisfactory solution for the purposes of that provision can be envisaged. For the same reason, it is clear from that provision that the essential considerations and facts on the basis of which the institutions propose to recommend the imposition of provisional anti-dumping measures must be disclosed to the exporting producers; otherwise it might be difficult for those producers to propose a satisfactory solution.

It follows that a producer established in the former Yugoslav Republic of Macedonia, as it was covered by that provision and received the provisional disclosure document relating to the adoption of anti-dumping measures early, cannot be regarded as being in a similar situation to a producer established in another Member State with which such an agreement has not been concluded. Accordingly, the early disclosure of the provisional disclosure document to the first producer, but not to the second, does not constitute a breach of the principle of equal treatment, since the undertakings were in different situations and there is a legislative basis for that difference in treatment.

(see paras 68-69, 72)

5.      Article 20(1) of the basic anti-dumping regulation, Regulation No 384/96, (now Article 20(1) of Regulation No 1225/2009) concerns disclosure to the parties. More specifically, it provides that the parties concerned may request disclosure of the essential facts and considerations on the basis of which provisional measures have been imposed and lays down the practical details. Thus, Article 20(1) of the basic regulation provides that requests for disclosure are to be made in writing immediately following the imposition of provisional measures, and the disclosure is to be made in writing as soon as possible thereafter.

There is nothing in the wording of that provision from which to conclude that the provisional disclosure document cannot be disclosed to exporters until after the adoption of provisional anti-dumping measures and upon a written request. Although it may be inferred from Article 20(1) of the basic regulation that the parties concerned cannot request disclosure of the disclosure document before the imposition of provisional measures and must make their request in writing, that provision does not preclude the Commission from taking the initiative of disclosing that document before the imposition of provisional measures and without a request being made to it in writing to that effect.

(see paras 81-82)

6.      In essence, Article 6(7) of the basic anti-dumping regulation, Regulation No 384/96, (now Article 6(7) of Regulation No 1225/2009) provides that the parties concerned may apply in writing for leave to inspect the non-confidential file of the proceeding, and that they may make comments on the information on that file and that the Commission must take those comments into consideration. In addition, Article 8(4) of the basic regulation (now Article 8(4) of Regulation No 1225/2009) provides that parties which offer a price undertaking are required to provide a non-confidential version of that undertaking, so that it can be made available to interested parties to the investigation.

There is nothing in the wording of those provisions to conclude that the fact that the price undertaking offered by a producer was not added to the non-confidential file of the proceeding until after the formal publication of the provisional regulation was contrary to Articles 6(7) and 8(4) of the basic regulation. Although those provisions impose both an obligation for parties which have offered a price undertaking to provide a non-confidential version of that undertaking and an obligation for the Commission to provide access to that non-confidential version for interested parties which have made a request for it in writing, they do not mention – and, a fortiori, impose no obligation – as regards the precise time at which a copy of the price undertaking must be added to the non-confidential file of the proceeding.

(see paras 84-85)

7.      It is apparent in essence from paragraphs 2, 5 and 6 of Article 3 of the basic anti‑dumping regulation, Regulation No 384/96, (now paragraphs 2, 5 and 6 of Article 3 of Regulation No 1225/2009), read together, that determination of injury involves an objective examination based on positive evidence of the impact of the volume and/or prices of dumped imports on the state of the Community industry and that that examination consists in an evaluation of the relevant economic factors and indices with regard to the state of that industry.

In addition, the term ‘Community industry’, to which paragraphs 2, 5 and 6 of Article 3 of the basic regulation refer, is defined in Article 4(1) of that regulation (now Article 4(1) of Regulation No 1225/2009), which provides that the term ‘Community industry’ is to be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4) of the basic regulation (now Article 5(4) of Regulation No 1225/2009), of the total Community production of those products.

Moreover, Article 5 of the basic regulation concerns the initiation of the anti‑dumping proceeding. Article 5(4) provides that a complaint leading to the initiation of an anti-dumping investigation is to be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total Community production of the product concerned.

Thus, it is apparent from analysis of those provisions that, although the examination by the institutions must lead to the finding that the injury to the Community industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend. Also, the institutions must evaluate the impact of the dumped imports on the state of the Community industry as a whole – that is to say, on Community producers as a whole or at least on the state of Community producers which have supported the initiation of the anti-dumping proceeding whose collective output represents more than 50% of the total Community production of the product concerned – but they are free to choose the method to be used in order to do so. Accordingly, the institutions are just as entitled to prove that injury has been caused to each Community producer as to prove such injury on the basis of the aggregated or weighted data of Community producers as a whole comprising the Community industry within the meaning of Article 4(1) and Article 5(4) of the basic regulation.

(see paras 111-114)

8.      In the context of the adoption of anti-dumping measures, the analysis of causation does not necessarily have to be carried out at the level of the Community industry as a whole, with no possibility of taking into consideration injury caused to a single Community producer by a factor other than the dumped imports. In the context of the ‘non-attribution’ analysis envisaged in Article 3(7) of the basic anti‑dumping regulation, Regulation No 384/96, (now Article 3(7) of Regulation No 1225/2009), the institutions must, examine all the other known factors which caused injury to the Community industry at the same time as the dumped imports and, ensure that the injury caused by those other factors is not attributed to the dumped imports. Article 3(7) of the basic regulation does not state that that examination must take account only of injury caused by the other factors to the Community industry as a whole. In the light of the purpose of that provision, which is to ensure that the institutions separate and distinguish the injurious effects of the dumped imports from those of the other factors, it is possible that, in certain circumstances, injury caused individually to a Community producer by a factor other than the dumped imports must be taken into consideration, where it has contributed to the injury observed in relation to the Community industry as a whole.

(see para. 172)