Case T-192/08
Transnational Company ‘Kazchrome’ AO and
ENRC Marketing AG
v
Council of the European Union
(Dumping – Imports of ferro-silicon originating in the former Yugoslav Republic of Macedonia, China, Egypt, Kazakhstan and Russia – Causal link – Community interest – Lack of cooperation – Facts available – Market economy treatment – Rights of the defence – Duty to state reasons)
Summary of the Judgment
1. Common commercial policy – Protection against dumping – Injury – Establishing a causal link – Criteria
(Council Regulations No 384/96, Art. 3(6) and (7), and No 1225/2009, Art. 3(6) and (7))
2. International agreements – Agreement establishing the World Trade Organisation – GATT 1994 – Direct effect – None – Not possible to rely on the WTO agreements to contest the lawfulness of a Community act – Exceptions – Community measure intended to implement a GATT or WTO rule or expressly and specifically referring thereto
(Art. 230 EC; General Agreement on Tariffs and Trade 1994)
3. Common commercial policy – Protection against dumping – Injury – Discretion of the institutions – Judicial review – Limits
(Council Regulations No 384/96, Art. 3, and No 1225/2009, Art. 3)
4. Common commercial policy – Protection against dumping – Injury – Establishing a causal link – Obligations of the institutions
(Council Regulations No 384/96, Art. 3(7), and No 1225/2009, Art. 3(7))
5. European Union law – Principles – Rights of the defence – Observance thereof in the context of administrative proceedings – Antidumping
6. Common commercial policy – Protection against dumping – Injury – Establishing a causal link – Obligations of the institutions
(Council Regulations No 384/96, Art. 3(7), No 172/2008 and No 1225/2009, Art. 3(7))
7. Procedure – 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 – General reference to other documents, even those annexed to the application – Inadmissibility
(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))
8. Common commercial policy – Protection against dumping – Assessment of the Community interest – Taking into account of information relating to a period subsequent to the investigation period – Whether permissible
(Council Regulations No 384/96, Arts 6(1) and 21(1), and No 1225/2009, Arts 6(1), and 21(1))
9. Common commercial policy – Protection against dumping – Assessment of the Community interest – Discretion of the institutions – Elements to be taken into consideration
(Council Regulations No 384/96, Art. 21(1), and No 1225/2009, Art. 21(1))
10. Acts of the institutions – Statement of reasons – Obligation – Scope – Regulation imposing anti-dumping duties
(Art. 253 EC)
11. Common commercial policy – Protection against dumping – Conduct of the investigation – Facts available – Entitlement to use those facts where a verification visit is cancelled
(Council Regulations No 384/96, Art. 18(1) and (3), and No 1225/2009, Art. 18(1) and (3))
12. Common commercial policy – Protection against dumping – Scope of the obligation on the Commission to examine for accuracy the information supplied by the interested parties – Information supplied in the context of the grant of market economy treatment – Included
(Council Regulations No 384/96, Arts 2(7)(b), 6(8), and 16(1), and No 1225/2009, Arts 2(7)(b), 6(8) and 16(1))
13. Common commercial policy – Protection against dumping – Assessment of the Community interest – Infringement of the rights of the defence – No bearing on the lawfulness of the regulation imposing a definitive anti-dumping duty – Conditions
(Council Regulations No 384/96, Art. 3(7), and No 1225/2009, Art. 3(7))
1. It can be seen from Article 3(6) of the basic anti-dumping regulation No 384/96 (now Article 3(6) of Regulation No 1225/2009) that the institutions must demonstrate that the dumped imports are causing material injury to the Community industry, regard being had to their volume and their price (attribution analysis). It can be seen, next, from Article 3(7) of the same basic regulation (now Article 3(7) of Regulation No 1225/2009) that the institutions must examine all the other known factors which are injuring 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 (non-attribution analysis).
The purpose of those provisions is to ensure that the institutions separate and distinguish the injurious effects of the dumped imports from those of the other factors.
To that end, those other factors must in certain circumstances be analysed collectively. That is the position, in particular, if, after carrying out an individual analysis, the institutions conclude that each of those other factors has had a negative effect on the situation of the Community industry even though on their own the effects cannot be regarded as significant
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. The institutions must examine, at the same time as the dumped imports, all the other known factors which are causing injury to the Community industry and then 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. Consequently, 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. However, such a possibility does not mean that the institutions are obliged as a matter of course to analyse the individual situation of each Community producer.
(see paras 30-31, 37, 41-45, 88, 180, 194-195, 209)
2. In view of their nature and structure, the World Trade Organisation (WTO) agreements are not in principle among the rules in the light of which the Court of the European Union is to review the legality of measures adopted by the EU institutions, pursuant to the first paragraph of Article 230 EC. However, where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Court of the European Union to review the legality of the EU measure in question in the light of the WTO rules. That is the position of the basic anti-dumping regulation No 384/96 whose purpose is to transpose into EU law, as far as possible, the rules laid down in the 1994 Anti-Dumping Agreement. In addition, although the interpretations of the Anti-Dumping Agreement by the WTO’s Dispute Settlement Body cannot bind the Court in its assessment as to whether an implementing regulation is valid, there is nothing to prevent the Court from referring to them, where a provision of the basic regulation has to be interpreted.
(see paras 32-33, 36)
3. The question whether a Community industry has suffered injury and, if so, whether that injury is attributable to the dumped imports and whether other known factors contributed to the injury to the Community industry involves the assessment of complex economic matters in respect of which the institutions enjoy a wide discretion. Consequently, review by the Courts of the European Union of the assessments made by the institutions must be confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers.
(see paras 51, 90, 164)
4. It cannot be claimed that basing the analysis of causation between the dumped imports and the injury to the Community industry on theoretical nominal utilisation capacity, rather than on actual utilisation capacity, is necessarily in breach of the non-attribution principle. Although switching the means of production to another market must lead to the adjustment of the figures relating to production capacity, those figures do not have to reflect all the temporary stoppages of the production machinery. On the other hand, in such circumstances, the institutions must ensure that the obligations referred to in Article 3(7) of the basic anti-dumping regulation No 384/96 (now Article 3(7) of Regulation No 1225/2009) are complied with and properly carry out a non-attribution analysis which must separate and distinguish the injury caused, where relevant, by those temporary stoppages, from the injury caused by the dumped imports.
(see paras 105, 109)
5. The requirements stemming from the right to a fair hearing must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular, 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.
As regards the alleged inconsistencies and anomalies of the essential facts and considerations on the basis of which it is intended to impose provisional duties, an interested party cannot confuse failure to observe its rights of defence with the existence of other, substantive, errors which may affect the legality of the regulation imposing a definitive anti-dumping duty. The [mere allegation of such inconsistencies and anomalies] does not prove, however, that the Commission infringed an applicant’s rights of defence. In any event, in order to observe the right to a fair hearing the institutions are not required to reply to each argument raised by an exporting producer in the course of the proceeding, but only to place the interested parties in a position in which they may effectively defend their interests.
(see paras 110, 319, 321, 326-327, 332)
6. The institutions infringe Article 3(7) of the basic anti-dumping regulation No 384/96 (now Article 3(7) of Regulation No 1225/2009) by failing to separate and distinguish the effects of the substantial investments made by the Community industry during the investigation period from the effects of the dumped imports. The same is true of the failure by the institutions to assess the impact of the lack of profitability of certain Community producers on the Community industry as a whole.
However, such an infringement gives grounds for annulling an implementing regulation, such as Regulation No 172/2008, only if it calls in question the lawfulness of the regulation by invalidating the institutions’ entire analysis of causation. That is not the case when the investments in question did not make a considerable contribution to the injury sustained by the Community industry during the investigation period.
(see paras 116, 119-120, 180-182, 211)
7. Under the first paragraph of Article 21 of the Statute of the Court of Justice – applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute and Article 44(1)(c) and (d) of the Rules of Procedure of the General Court – all applications must indicate the subject-matter of the proceedings and the form of order sought by the applicant, and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the General Court to decide the case. In order to ensure legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, for the essential facts and points of law on which the action is based to be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law, which must appear in the application.
(see para. 212)
8. Article 6(1) of the basic anti-dumping regulation No 384/96 (now Article 6(1) of Regulation No 1225/2009) does not apply in the context of determining whether there is a Community interest as contemplated in Article 21(1) of that basic regulation (now Article 21(1) of Regulation No 1225/2009), which means that information relating to a period subsequent to the investigation period may be taken into account for those purposes. Fixing an investigation period and precluding consideration of factors arising subsequently are intended to ensure that the results of the investigation are representative and reliable. The investigation period under Article 6(1) is intended to ensure, in particular, that the factors on which the determination of dumping and injury is based are not influenced by the conduct of the producers concerned after the anti-dumping proceeding has been initiated and, accordingly, that the definitive duty imposed as a result of the proceeding is appropriate to remedy effectively the injury caused by the dumping.
Moreover, first, Article 21 of the basic regulation does not contain any temporal restriction as to the information which may be taken into account by the institutions for the purposes of determining whether there is a Community interest. Second, examination of the Community interest requires an evaluation of the likely consequences, both for the interest of the Community industry and for the other interests at stake, of applying – and of not applying – the measures proposed. That evaluation involves a forecast based on hypotheses regarding future developments, which includes an appraisal of complex economic situations. Such an assessment entails a broad measure of discretion on the part of the Commission and, consequently, a review by the judicature of the European Union restricted to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate or whether there has been a manifest error of appraisal or a misuse of powers.
(see paras 221-224, 227)
9. An assessment of the Community interest with the meaning of Article 21(1) of the basic anti-dumping regulation No 384/96 (now Article 21(1) of Regulation No 1225/2009) requires the interests of the various parties concerned to be balanced against the public interest. The Commission has a broad measure of discretion when evaluating the Community interest, which must be exercised on a case-by-case basis, with reference to all the relevant facts. Nevertheless, for the purposes of applying Article 21(1) of the basic regulation, an earlier decision finding that anti-dumping measures imposed on imports of the same goods from the same countries as those covered by the investigation procedure lacked remedial effect may be relevant if it helps to show that the adoption of anti‑dumping measures is not in the general interest.
(see paras 240-241)
10. The statement of reasons required under Article 253 EC must show clearly and unequivocally the reasoning of the EU 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. On the other hand, the institutions are not required to reply, in the statement of reasons for the provisional or definitive regulation relating to anti-dumping duties, to all the points of fact and law raised by the persons concerned during the administrative procedure. Since the Commission analysed in a clear and unequivocal manner the consequences of the anti-dumping measures for Community ferro-silicon users and the Council conducted a shorter, yet no less clear, examination of the impact of the imposition of anti-dumping duties on those users, it cannot be claimed that the institutions acted in breach of the obligation to state reasons.
(see paras 256-257)
11. In the context of investigations carried out in the course of an anti-dumping procedure, the cancellation of a verification visit by an interested party must be analysed not in the light of Article 18(3) of the basic anti-dumping regulation No 384/96 (now Article 18(3) of Regulation No 1225/2009) but in the light of Article 18(1) of that regulation (now Article 18(1) of Regulation No 1225/2009). Although the cancellation of a verification visit is not covered by any of the last three cases envisaged in Article 18(1) of that basic regulation, it must be regarded – save in the case of force majeure – as a refusal of access to information which the Commission has considered to be necessary, as in the first case envisaged in that provision. In addition, Article 18(3) of the basic regulation may not be used in order to circumvent the obligation to allow a verification visit to go ahead where such a visit has been considered necessary by the Commission’s services. Admittedly, under Article 18(3) of the basic regulation, where the information is not ideal in all respects, the use of the facts available is to be disregarded only if the interested party has acted to the best of its ability. As it is, where there has been a refusal to allow a verification visit to go ahead, a party cannot be considered to have acted to the best of its ability.
As regards the purpose of Article 18(1) of the basic regulation, since the basic regulation does not give the Commission any power of investigation enabling it to compel the producers or exporters complained of to participate in the investigation or to produce information, the Council and the Commission depend on the voluntary cooperation of the parties concerned in supplying the necessary information within the time-limits set. The refusal to allow a verification visit to go ahead runs counter to the objective of honest and diligent cooperation with which Article 18(1) of the basic regulation seeks to ensure compliance.
Lastly, it follows from an analysis of the scheme of the basic anti-dumping regulation, first, that it is for the institutions to decide whether, for the purposes of checking the information supplied by an interested party, they consider it necessary to corroborate that information by a verification visit at the premises of that party and, second, that, where an interested party impedes verification of the information which it has supplied, Article 18 of the basic regulation applies and the facts available may be used.
(see paras 270-276)
12. Since Article 6(8) of the basic regulation anti-dumping regulation No 384/96 (now Article 6(8) of Regulation No 1255/2009) does not place any limitation on the scope of the obligation to check the facts upon which the institutions base their findings, such an obligation extends to information supplied by an interested party in the course of a claim for market economy treatment (‘MET’). In addition, Article 16(1) of the basic regulation (now Article 16(1) of Regulation No 1225/2009) does not limit the possibility of carrying out visits at the premises of the interested parties, if the Commission considers it appropriate, depending on the information which it seeks to corroborate. It follows that Article 16(1) of the basic regulation authorises the Commission to carry out a visit at the premises of an exporting producer in order to deal with its MET claim and to satisfy itself as to the accuracy of the information supplied therein, if the Commission considers it necessary.
Consequently, the fact that Article 2(7)(b) of the basic anti-dumping regulation No 384/96 (now Article 2(7)(b) of Regulation No 1225/2009) does not require a verification visit to be carried out at the premises of the exporting producer making the MET claim does not mean that such a visit may not take place. Similarly, the organisation of a verification visit, in the context of dealing with an MET claim, cannot be regarded as imposing a condition additional to those laid down in Article 2(7)(b) of the basic regulation.
(see paras 294-296)
13. In the context of an anti-dumping proceeding, the institutions are not required to request explanations from the Community producers for the trends observed in relation to them, since it is not for those producers to carry out a non-attribution analysis under Article 3(7) of the basic anti-dumping regulation No 384/96 (now Article 3(7) of Regulation No 1225/2009). By contrast, such an analysis has to be carried out by the institutions for the purposes of the provisional and definitive determinations. In addition, even if the principle of the right to a fair hearing requires exporting producers to be informed of the essential facts and considerations on the basis of which it is intended to impose provisional duties, a failure to respect that right cannot in itself have the effect of vitiating the regulation imposing definitive duties where, in the course of the procedure for the adoption of the latter regulation, the defect vitiating the procedure for the adoption of the corresponding regulation imposing provisional duties was remedied.
(see paras 314, 319)