JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
29 March 2023 (*)
(Dumping – Imports of certain seamless pipes and tubes of iron (excluding cast iron) or steel (excluding stainless steel), of circular cross-section and of an external diameter exceeding 406.4 mm, originating in China – Imposition of a definitive anti-dumping duty – Causal link – Article 3(6) and (7) of Regulation (EU) 2016/1036 – Manifest error of assessment)
In Case T‑500/17 RENV,
Hubei Xinyegang Special Tube Co. Ltd, established in Huangshi (China), represented by E. Vermulst and J. Cornelis, lawyers,
applicant,
v
European Commission, represented by T. Maxian Rusche and K. Blanck, acting as Agents,
defendant,
supported by
ArcelorMittal Tubular Products Roman SA, established in Roman (Romania),
Válcovny trub Chomutov a.s., established in Chomutov (Czech Republic),
Vallourec Deutschland GmbH, established in Düsseldorf (Germany),
represented by G. Berrisch, lawyer,
interveners,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and E. Tichy‑Fisslberger, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the judgment of the Court of Justice of 20 January 2022,
having regard to the observations of the interveners lodged at the Registry of the General Court on 21 March 2022,
having regard to the observations of the Commission lodged at the Registry of the General Court on 30 March 2022,
further to the hearing on 18 November 2022,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Hubei Xinyegang Special Tube Co. Ltd, seeks the annulment of Commission Implementing Regulation (EU) 2017/804 of 11 May 2017 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of iron (other than cast iron) or steel (other than stainless steel), of circular cross-section, of an external diameter exceeding 406.4 mm, originating in the People’s Republic of China (OJ 2017 L 121, p. 3) (‘the contested regulation’), in so far as it concerns it.
Background to the dispute
2 On 13 February 2016, following a complaint lodged by the Defence Committee of the Seamless Steel Tube Industry of the European Union, the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain seamless pipes and tubes of iron (other than cast iron) or steel (other than stainless steel), of circular cross-section, of an external diameter exceeding 406.4 mm, originating in the People’s Republic of China (OJ 2016 C 58, p. 30).
3 The investigation of dumping and injury covered the period from 1 January 2015 to 31 December 2015 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2012 to the end of the investigation period (‘the period considered’).
4 The applicant, a company located in China, producing and exporting to the European Union certain seamless pipes and tubes of iron (other than cast iron) or steel (other than stainless steel), of circular cross-section and of an external diameter exceeding 406.4 mm, originating in China (‘the product under consideration’), was selected to be part of the sample of exporting producers.
5 On 11 November 2016, the Commission adopted Regulation (EU) 2016/1977 imposing a provisional anti-dumping duty on imports of the product under consideration (OJ 2016 L 305, p. 1) (‘the provisional regulation’).
6 On 11 May 2017, the Commission adopted the contested regulation.
7 The contested regulation is based, inter alia, on Article 9(4) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic regulation’).
8 Article 1 of the contested regulation provides for the imposition of a definitive anti-dumping duty on imports of the product under consideration. The rate of the anti-dumping duty, in respect of the products manufactured by the applicant, is 54.9%.
Earlier proceedings before the General Court and the Court of Justice
9 By application lodged at the Registry of the General Court on 7 August 2017, the applicant brought an action, registered under number T‑500/17, for annulment of the contested regulation.
10 By order of 24 January 2018, the President of the Seventh Chamber of the General Court granted ArcelorMittal Tubular Products Roman SA, Válcovny trub Chomutov a.s. and Vallourec Deutschland GmbH leave to intervene in support of the Commission’s heads of claim.
11 By judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691) (‘the original judgment’), the General Court upheld the second part of the first plea in law and the second plea in law, alleging infringement of Article 3(6) of the basic regulation and Article 3.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103), contained in Annex 1A to the Agreement establishing the World Trade Organization (WTO) (OJ 1994 L 336, p. 3), and consequently annulled the contested regulation, without examining either the third or fourth pleas in law of the application.
12 As regards the first part of the first plea in law, the General Court held that, contrary to the applicant’s argument, the Commission had not erred in law in deciding to analyse, in the context of the determination of the existence of injury, price undercutting on the basis of the investigation period, namely 2015 (original judgment, paragraphs 48 to 52).
13 With regard to the second part of the first plea in law, the General Court held, in essence, that, first, by not carrying out a segment-by-segment analysis of the market, in addition to the comparison by ‘product control number’ (‘PCN’) and, secondly, by not taking into account 17 product types of the category of the product under consideration manufactured by the EU producers, the Commission had failed to take into account all relevant data of the case in the analysis of price undercutting and the effect of dumped imports on prices of like products in the EU market, in violation of Article 3(2) and (3) of the basic regulation (original judgment, paragraphs 53 to 80).
14 As regards the second plea in law, the General Court held in the original judgment, in essence, that, since it had been found in the context of the first plea in law that the Commission had not taken into account all the relevant factors for the purposes of determining price undercutting and the effect of imports on prices of like products in the EU market, the Commission’s finding of causation under Article 3(6) of the basic regulation had to be considered to be based on an incomplete factual basis, so that the Commission had failed to take into account all the relevant data in the case in its analysis of the causal link (original judgment, paragraphs 82 to 89).
15 By application lodged at the Court Registry on 4 December 2019, the Commission lodged an appeal under Article 56 of the Statute of the Court of Justice of the European Union against the original judgment.
16 In support of its appeal, the Commission relied on six grounds, the first alleging that the General Court wrongly held that it was required to carry out an analysis of price undercutting by market segment, the second alleging that the General Court wrongly held that the PCN method was not adequate to take account of market segmentation, the third alleging an error of interpretation of the duty to state reasons and distortion of the evidence by the General Court, the fourth alleging an erroneous interpretation of Article 3(2) and (3) of the basic regulation, the fifth alleging an infringement of Article 17 of the basic regulation and the sixth alleging an error of law in that the General Court carried out too intensive a judicial review in its examination of the Commission’s analysis of price undercutting.
17 In its judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38) (‘the judgment on appeal’), the Court of Justice held that the first, second, third and fourth grounds of appeal and the third part of the sixth ground of appeal were well founded (judgment on appeal, paragraph 172). Accordingly, the Court set aside the original judgment, without examining the fifth ground of appeal or the first and second parts of the sixth ground of appeal. The Court then gave final judgment on the first and second pleas, rejecting them as unfounded, and referred the case back to the General Court for judgment on the third and fourth pleas (judgment on appeal, paragraph 175).
Forms of order sought by the parties after referral
18 The applicant claims that the General Court should:
– annul the contested regulation in so far as it concerns it;
– order the Commission to pay the costs.
19 The Commission and the interveners contend that the General Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
20 The third and fourth pleas in law, which were not examined by the General Court in the original judgment, allege, respectively, a manifest error of assessment in establishing the causal link within the meaning of Article 3(6) and (7) of the basic regulation and a breach of the ‘obligation of due diligence and proper administration’.
The third plea in law, alleging a manifest error of assessment in establishing a causal link within the meaning of Article 3(6) and (7) of the basic regulation
21 The third plea in law is divided into two parts. In the first part, the applicant claims that the Commission committed a manifest error of assessment in the ‘positive’ attribution of injury to the EU industry to the dumped Chinese imports. In the context of the second part, the applicant claims that the Commission committed a manifest error of assessment in concluding, after the assessment of the ‘negative’ attribution, that the causal link between the injury suffered by the EU industry and the dumped Chinese imports had not been broken by the other injury factors recognised by the Commission.
Admissibility of the third plea in law
22 The interveners contest the admissibility of the present plea in law in so far as the applicant did not fulfil its obligation in the application to show that the Commission had committed a manifest error of assessment in establishing the causal link, within the meaning of Article 3(6) and (7) of the basic regulation.
23 In that regard, it should be noted that the evidence to be adduced concerning a possible manifest error of assessment by the Commission is a matter for examination of the substance of the plea in law put forward in support of the action. Consequently, the argument put forward by the interveners, to the effect that the applicant did not provide such proof, cannot lead to the present plea being considered inadmissible. The plea of inadmissibility put forward by the interveners in respect of the third plea in law must therefore be rejected.
The merits of the third plea in law
24 It follows from Article 3(6) of the basic regulation that the institutions must show that the dumped imports are causing material injury to the EU industry, taking into account their volume or price. That analysis, known as the attribution analysis, is however not sufficient to conclude that there is a causal link between the dumped imports and the injury suffered by the EU industry. It follows from Article 3(7) of the basic regulation that those institutions must also examine any other known factors which are injuring the EU industry at the same time as the dumped imports and ensure that injury caused by those other factors is not attributed to the dumped imports. Those other factors, examined in the context of the analysis known as the non-attribution analysis, include, inter alia, the volume and price of the non-dumped imports (judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 40).
25 In that regard, it is for the EU institutions to verify that the effects of those other factors were not such as to break the causal link between, first, the imports concerned and, secondly, the injury suffered by the EU industry. It is also for those institutions to determine whether the injury caused by those other factors is not relevant for the determination of injury within the meaning of Article 3(7) of the basic regulation, and consequently whether the anti-dumping duty imposed does not exceed what is necessary to remove the injury caused by the dumped imports. However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material, pursuant to Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the EU industry can accordingly be established (judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraphs 24 and 25).
26 According to settled case-law, the question of whether the EU industry has suffered injury and whether that injury is attributable to the dumped imports, as well as the question of whether other known factors have contributed to the injury suffered by the EU industry, involves the assessment of complex economic issues in respect of which the institutions have a wide discretion. It follows that the review by the EU judicature of the institutions’ assessments must be limited to verifying compliance with the procedural rules, the material accuracy of the facts used to make the contested choice, the absence of a manifest error in the assessment of those facts or the absence of misuse of powers (see judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 42 and the case-law cited). That limited judicial review does not, however, imply that the Courts of the European Union refrain from reviewing the interpretation by the institutions of data of an economic nature. In particular, it is for the General Court to verify not only the material accuracy of the evidence relied on, its reliability and consistency, but also whether that evidence constitutes all the relevant data to be taken into consideration in assessing a complex situation and whether it is capable of supporting the conclusions drawn from it (judgment of 29 January 2014, Hubei Xinyegang Steel v Council, T‑528/09, EU:T:2014:35, paragraph 53).
27 It is in the light of those considerations that the applicant’s arguments must be assessed.
– The Commission’s manifest error of assessment in the analysis of the ‘positive’ attribution to dumped imports of the injury suffered by the EU industry
28 The applicant claims that the dumped Chinese imports did not cause material injury to the EU industry. First, it appears from the figures produced by the Commission that during the period considered, namely, from 2012 to 2015, there was no correlation between, on the one hand, the development of prices and import volumes of the dumped Chinese products and, on the other hand, the development of profitability of the EU industry. Secondly, even taking into account the period considered as a whole, the decrease in prices, sales volumes and profitability of the EU industry during that period could not be explained by the sales prices and import volumes of the dumped Chinese products, as the latter remained stable during that period. Thirdly, the applicant contests the Commission’s conclusion that the poor performance of the EU industry during the period considered is explained by the continued price pressure, on the grounds that it does not take into account the segmentation of the market during the period considered.
29 The Commission and the interveners contest the applicant’s arguments.
30 In that regard, first, with regard to the applicant’s argument that there is no correlation between the change of prices and import volumes of the dumped Chinese products, on the one hand, and the profitability of the EU industry, on the other hand, it should be noted that it can be seen from recitals 54 and 72 of the provisional regulation and recitals 90, 91 and 123 of the contested regulation that the indicators set out in the table below developed as follows during the period considered:
| 2012 | 2013 | 2014 | 2015 (Investigation period) |
Average sales price of the EU industry in the European Union (EUR/tonne) | 1 839 | 1 679 | 1 773 | 1 584 |
Sales volume of the EU industry (in tonnes) | 132 241 | 119 894 | 95 054 | 100 975 |
Profitability of the EU industry’s sales in the European Union (as a percentage of turnover) | +5.7 | -2.0 | -3.2 | -7.6 |
Market share of the EU industry (in percent) | 75 | 70 | 61 | 64 |
Average sales price of imports from the People’s Republic of China (EUR/tonne) | 1 096 | 1 079 | 1 037 | 1 099 |
Sales volume of imports from the People’s Republic of China (in tonnes) | 39 195 | 35 337 | 41 590 | 42 539 |
Market shares of imports from the People’s Republic of China (in percent) | 22.2 | 20.6 | 26.8 | 26.8 |
31 It follows from that table that, as pointed out by the applicant, the profitability of the EU industry decreased sharply from 2012 to 2013, from +5.7% to - 2%, while the volume of dumped Chinese imports decreased over that period. The table also shows that the profitability of the EU industry decreased less sharply from 2013 to 2014, from -2% to -3.2%, while the volume of dumped Chinese imports increased sharply. Similarly, the EU industry experienced a further significant decrease in profitability between 2014 and 2015, from -3.2% to -7.6%, while the increase in the volume of dumped Chinese imports was more limited than between 2013 and 2014. The table also shows that the prices of the dumped Chinese imports increased between 2014 and 2015, while the profitability of the EU industry decreased significantly over the same period.
32 The applicant questions, in addition to the considerations examined above, the Commission’s method of basing its conclusions on the comparison between the data for the beginning and end of the period considered.
33 In recital 107 of the contested regulation, the Commission explained its reasons for adopting that method as follows:
‘The Commission agreed that all the injury indicators do not show a year-to-year correlation with the development of the imports from China. However, the effects are delayed from one year to the next as the prices and business relationships adjust to the increased unfair competition. As the imports from China take place through traders, the investigation of the unrelated importers has shown that there is a significant time-lag between the moment of ordering the products from China and their delivery to the end-user, resulting from the time of production, transport, stocking at the level of the trader and final delivery. The overall impact of the low-priced imports may thus only be observed over the entire period considered. …’
34 In that regard, it should be noted that, according to the case-law, the idea underlying the fixing of a ‘period considered’ is to enable the Commission to examine a longer period than that covered by the investigation itself, so as to base its analysis on actual and virtual trends which, in order to be identifiable, require a sufficiently long period of time (see, to that effect, judgment of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 87).
35 That is precisely what the Commission has done in the present case by not limiting its analysis to developments over one or two years, but by examining trends over a longer period (see, to that effect, judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 145 (not published)). It thus concluded that dumped imports from China increased from 39 195 tonnes to 42 539 tonnes during the period considered, that average prices of imports from China consistently undercut the average sales prices of the EU industry and that as a result of undercutting of the EU industry’s prices, Chinese imports increased their market share from 22.2% to 26.8%, while the EU industry’s market share decreased, which is also reflected in the economic indicators mentioned in paragraph 30 above.
36 Finally, the applicant, in so far as it challenges the possibility for the Commission to rely on the beginning and end of the period considered, calls into question a methodological choice made by that institution.
37 The case-law recognises that the institutions of the European Union have a wide margin of discretion in relation to that type of issue, so that it is for the applicant, in order to challenge the legality of the contested measure in that regard, to demonstrate the existence of a manifest error of assessment (judgment of 14 March 2007, Aluminium Silicon Mill Products v Council, T‑107/04, EU:T:2007:85, paragraph 71).
38 In the present case, it should be noted that, by its argument, the applicant does not provide any evidence of the existence of such an error, but rather proposes an alternative interpretation of the development of the economic indicators (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 172).
39 The applicant’s argument that there was no correlation during the period considered between, first, the development of sales prices and volumes and the profitability of the EU industry and, secondly, the development of prices and import volumes of the dumped Chinese products should therefore be rejected as unfounded.
40 Secondly, it is necessary to reject the applicant’s argument that, even taking into account the whole period considered, the decrease in sales prices, sales volumes and profitability of the EU industry cannot be explained by the development of the sales prices of the dumped Chinese products, nor by the development of the import volumes of the dumped Chinese products, as those remained stable during that period.
41 On the one hand, it should be noted that in recitals 134 and 135 of the contested regulation, the Commission expressly distinguished the different causes of injury by stating that the dumped imports had clearly caused injury through the undercutting of the EU industry’s prices and thus through the downward pressure on sales prices in the EU market, whereas the other injury factors, which were not related to the undercutting of the EU industry’s sales prices and whose cumulative impact was marginal, had caused a decrease in the EU industry’s sales volume. It follows that the applicant’s claim that the volume of imports of the dumped Chinese products could not explain the decrease in the EU industry’s sales volume during the period considered has to be rejected as inoperative.
42 On the other hand, it should be noted that, contrary to the applicant’s claim, the economic indicators mentioned in paragraph 30 above show that dumped Chinese imports did not remain stable during the period considered but, after decreasing in 2013, in 2014 they exceeded their 2012 level and continued to increase in 2015. Furthermore, it should be noted that, as also shown by the economic indicators mentioned in paragraph 30 above, while the prices of the dumped Chinese products decreased slightly in 2013 and 2014 and returned to the level of the beginning of the period considered in 2015, they remained during the same period far below the EU industry’s sales prices. Those two factors combined constitute a plausible explanation for the decrease in the EU industry’s sales prices and profitability during the period considered.
43 Thirdly, with regard to the applicant’s argument that the finding that the EU industry suffered material injury due to continued price pressure from the dumped Chinese imports does not take into account the segmentation of the market over the whole period considered, namely, from 2012 to 2015, it is important to point out that evidence of injury, including evidence of the effect of imports on prices of like products in the EU market, is taken into account in the context of the Commission’s analysis of causation, referred to in Article 3(6) of the basic regulation.
44 Thus, there is a link between the determination of price undercutting and, more generally, the effect of dumped imports on prices of like products in the EU market, under Article 3(2) and (3) of the basic regulation and the establishment of a causal link under Article 3(6) of the basic regulation (see, to that effect, judgment of 30 November 2011, Transnational Company “Kazchrome” and ENRC Marketing v Council and Commission, T‑107/08, EU:T:2011:704, paragraph 59).
45 However, it should be noted that, in the judgment on appeal, the Court of Justice definitively rejected the arguments put forward by the applicant in support of the first ground relating to an alleged error on the part of the Commission in the analysis of price undercutting according to the PCN method for the year 2015 and the alleged need for a supplementary analysis aimed at taking account of the segmentation of the market in order to verify the existence of that undercutting.
46 In the first place, the Court noted that, with regard to the analysis of price undercutting, the General Court had not found that the Commission, in applying the PCN method, had committed a manifest error of assessment of the facts in that it had not taken account of the segmentation of the market for the product under consideration (judgment on appeal, paragraphs 103 and 104). The Court of Justice stated in that regard that the first digit of each PCN referred to the segment to which the type of product under consideration belonged and that the Commission had compared, PCN by PCN, the prices of the dumped imports and the prices of the EU producers. Thus, according to the Court, in applying the PCN method, the Commission did take into account the segments of the market for the product under consideration for the purposes, inter alia, of analysing price undercutting and, consequently, the Commission cannot be accused of having committed a manifest error of assessment in carrying out that analysis (judgment on appeal, paragraphs 105 and 106).
47 In the second place, the Court noted that it followed from the data provided by the Commission in response to the General Court’s request that the use of the PCN method had shown that the dumped imports and the products sold by the EU industry were fully comparable in the three market segments and that price undercutting had occurred in each of those three segments, so that there was no situation of marked segmentation in the present case, such as that at issue in the WTO Appellate Body report in the dispute ‘China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes (“HP-SSST”) from Japan’ (WT/DS 454/AB/R and WT/DS 460/AB/R, report of 14 October 2015) and in the case giving rise to the judgment of 28 October 2004, Shanghai Teraoka Electronic v Council (T‑35/01, EU:T:2004:317) (judgment on appeal, paragraph 110), invoked by the applicant.
48 The Court of Justice held that, in those circumstances, while, in the light of the principles noted in paragraphs 77 to 80 of the judgment on appeal, an additional analysis of price undercutting consisting of a comparison of prices in each segment in addition to the analysis carried out on the basis of the PCN method, that is to say, a PCN-by-PCN comparison, might be required of the Commission in certain exceptional circumstances of a marked segmentation of the product under consideration involving significant price variations between market segments, even if a wide discretion was to be reserved to the Commission in defining the precise method for analysing price undercutting, such an additional analysis was not, in any event, required in the present case in the light of the data supplied by the Commission at the express request of the General Court after the hearing before it (judgment on appeal, paragraph 111).
49 The Court added that, first, as regards, in particular, the existence of significant price differences between the three market segments, it was clear from recitals 24 and 108 of the contested regulation that, in the present case, those differences were mainly linked to the use of high-alloy steels for the products falling within the power generation sector, whereas non-alloy steels were used for the products falling within the other two sectors, and that, secondly, in applying the PCN method, the differences in costs and prices associated with alloy and high-alloy steels had been taken into account in the comparisons because of the composition of the PCNs, in particular the first characteristic taken into account in the PCN, namely the type of product, distinguishing between non-alloy steels, alloy steels and high-alloy steels (judgment on appeal, paragraphs 112 and 113).
50 The Court concluded that, in the present case, since those price differences between different segments of the market for the product under consideration had already been taken into account in the context, inter alia, of the analysis of price undercutting under the PCN method, they did not require the Commission to carry out an additional analysis by market segment (judgment on appeal, paragraph 114).
51 Furthermore, as regards the years 2012 to 2014, it should be noted that, contrary to what the Commission maintains, the applicant’s argument that the trade statistics on which the Commission relied did not take account of the segmentation of the market, was not raised for the first time at the hearing, but was already included in paragraph 99 of the application. It follows that that argument cannot be rejected as inadmissible on the ground that it does not satisfy the conditions laid down by Article 76(d) in conjunction with Article 84(1) of the Rules of Procedure of the General Court.
52 As already recalled in paragraph 34 above, the idea behind setting a ‘period considered’ is to allow the Commission to examine a longer period than that covered by the investigation itself, so as to base its analysis on real and virtual trends which require a sufficiently long period of time to be identified, which is also apparent from recital 18 of the provisional regulation.
53 The methodology chosen by the Commission to assess the relevant trends in the period preceding the investigation period is, as already noted in paragraph 37 above, within the wide margin of discretion enjoyed by the EU institutions in that regard.
54 In the present case, it should be noted that the Commission relied, as regards the economic indicators for the years 2012 to 2014, on the trade statistics provided by Eurostat, which are not disputed by the applicant.
55 In that regard, the applicant merely claims, in essence, that, since those statistics did not take into account the product range, as the Commission acknowledged in recital 58 of the provisional regulation and recital 109 of the contested regulation, they did not allow the situation in the different market segments to be known. Therefore, it could not be inferred from those statistics that the prices of the dumped Chinese imports undercut those of the EU industry in the three market segments identified during the three years preceding the investigation period.
56 In that regard, it should be pointed out that, as noted in paragraph 47 above, in the judgment on appeal, the Court of Justice found that the PCN-by-PCN analysis showed that, during the investigation period, price undercutting by dumped Chinese imports had taken place in all three market segments identified.
57 The applicant does not provide any argument, including with regard to its own exports to the EU market, to show that the situation was different in the three years preceding the investigation period.
58 In those circumstances, it must be concluded that the applicant has not shown that the Commission committed a manifest error of assessment by basing its conclusion that the EU industry was subject to constant price pressure during the period considered on the finding, following a PCN-by-PCN analysis, of the existence of price undercutting for the year 2015 as well as on the trade statistics provided by Eurostat for the years 2012 to 2014.
59 In view of the above, it must be concluded that the applicant still fails to demonstrate that the Commission committed a manifest error of assessment in the analysis of the positive attribution to the dumped imports of the injury suffered by the EU industry.
60 The first part of the third plea in law must therefore be rejected as unfounded.
– The Commission’s manifest error of assessment in the analysis of the non-attribution of injury to factors other than Chinese imports
61 The applicant states that the Commission had to establish what injury would have been suffered by the EU industry in the absence of the dumped imports. In that context, the applicant submits that the Commission committed a manifest error of assessment in concluding that three factors did not break the causal link.
62 In the first place, the applicant refers to the poor export performance of the EU industry which, given the extent of the loss of sales volume which it represents, is a more important reason for the injury suffered by the EU industry in that respect than the dumped Chinese imports. The arguments put forward by the Commission in the contested regulation to justify that that situation did not break the causal link are unfounded. First, a reallocation within the European Union of the lost export sales would have led to a fall in average prices even in the absence of the Chinese imports. In that regard, the applicant states that the loss of sales volume due to other injury factors would ultimately result in price decreases for the EU industry. Secondly, with regard to the adjustment made by the Commission in the context of the calculation of the injury margin, the applicant points out that the purpose of that calculation is different from that of the analysis of the other factors in the context of the causal link.
63 In the second place, the applicant refers to imports from other third countries and notes that they increased more than the dumped Chinese imports. The stability of the market shares of the other imports in absolute terms is not decisive as their development shows an increase. Furthermore, the Commission’s finding that the average price of other imports increased is manifestly incorrect. Finally, the Commission’s argument that the price of other imports was higher than the price of Chinese imports does not take into account the different market segments. The Chinese imports are concentrated in the construction segment, which is characterised by lower prices.
64 In the third place, the applicant refers to the contraction in demand and notes that demand has mainly contracted in the oil and gas segment. Demand in the construction segment, where most of the Chinese imports take place, increased. The Commission should have concluded, on the basis of the facts of the case, that the contraction in demand was sufficiently large to break the causal link.
65 The applicant adds that it accepts that, in the context of the non-attribution analysis, the mere presence of other injury factors does not necessarily mean that the causal link is broken. However, the applicant points out that the Commission must show that the dumped imports are causing material injury. In the present case, the applicant submits that it has demonstrated that the effect of the dumped Chinese imports was limited to 4% of the EU industry’s loss of production volumes. The remaining 96% of the losses were due to other injury factors.
66 The Commission and the interveners contest the applicant’s arguments.
67 In that regard, first, with regard to the applicant’s argument that the loss of sales volume of the EU industry was due more to the poor export performance of the EU industry than to the dumped Chinese imports, it should be noted that, as already noted in paragraph 41 above, in recitals 134 and 135 of the contested regulation, the Commission expressly distinguished the different causes of injury by stating that the dumped imports had clearly caused injury by undercutting the prices of the EU industry and thus by the downward pressure on sales prices in the EU market, whereas the other injury factors, which were not related to the undercutting of the EU industry’s sales prices and whose cumulative impact was marginal, had led to a decrease in the EU industry’s sales volumes.
68 Furthermore, it should be noted that the applicant did not put forward any evidence to support the claim that the injury caused by the decrease in sales volumes of the EU industry linked to the other factors that contributed to the injury necessarily had an impact on the decrease of the EU industry’s prices.
69 In addition, it is important to point out, as the Commission did, that, even if the decrease in sales volumes of the EU industry led to a downward pressure on the prices of the EU industry, that circumstance in itself is not capable of calling into question the finding of price undercutting of the Chinese imports of the product under consideration within the meaning of Article 3(3) of the basic regulation, so that the applicant’s argument in that regard must be rejected as inoperative.
70 Furthermore, and in any event, contrary to the applicant’s claim, it is not apparent from recital 116 of the contested regulation that the adjustment of the costs relating to the EU industry’s lost export sales volume was only made in the context of the injury margin calculation. It is apparent from recital 116 of the contested regulation, as well as recitals 81, 84, 90 and 91 of that regulation, that the cost of lost export sales volume for the EU industry was excluded from the calculation of the profitability of the EU industry’s sales for the period considered, in the context of the injury determination. It follows that the injury found by the Commission did not take into account the additional costs incurred by the poor export performance of the EU industry.
71 The applicant’s argument that the injury suffered by the EU industry was caused more by its poor export performance than by the dumped Chinese imports must therefore be rejected.
72 Secondly, as regards imports from third countries other than the People’s Republic of China, it should be noted that, if, as claimed by the applicant and indeed found by the Commission in recital 120 of the contested regulation, they increased during the period considered, their average selling prices were much higher than the selling prices of the dumped Chinese imports during the same period, as can be seen from the economic indicators set out in recital 123 of that regulation.
73 In that regard, it should be noted that the applicant’s argument that that finding does not take into account the fact that the dumped Chinese imports are concentrated in the low-priced construction sector was contradicted by the data on the Commission’s file on the basis of which the Court of Justice found that Chinese imports were spread over the three market segments identified (judgment on appeal, paragraph 85). Furthermore, it should be noted that, even excluding the figures for imports from the United States in order to take into account their unreliability as suggested by the applicant, the decrease in prices of imports from third countries other than the People’s Republic of China does not appear to be such as to have caused injury to the EU industry. According to the data provided by the applicant in paragraph 133 of the application, the prices in question remained well above the EU industry’s sales prices throughout the period considered. Likewise, it should be noted that the market share of imports from third countries other than the People’s Republic of China did indeed increase during the period considered. However, it should be pointed out that, first, that market share remained low, increasing from 3% to 9.5% and, secondly, that increase was comparable to the increase in the market share of the dumped Chinese imports from 22.2% to 26.8%.
74 The applicant’s argument that the causal link between the injury suffered by the EU industry and the dumped Chinese imports was broken by the injurious effect of imports from third countries other than the People’s Republic of China must therefore also be rejected.
75 Thirdly, the applicant submits that the contraction in demand could have broken the causal link as it was mainly the result of a crisis in the oil and gas sector, in which the EU industry was concentrated. According to the applicant, the maintenance of the sales volumes of the dumped Chinese imports could be explained by the fact that the construction sector in which they were concentrated was not affected by the contraction in demand. However, that argument again conflicts with the finding of the Court in the judgment on appeal that the dumped Chinese imports and the sales of the EU industry were equally present in the three market segments identified during the investigation period (judgment on appeal, paragraph 85). It follows that the applicant cannot validly argue that the contraction in demand broke the causal link between the injury suffered and the dumped Chinese imports.
76 Fourthly, with regard to the applicant’s argument that dumped Chinese imports accounted for only 4% of the EU industry’s loss of production, it should be noted that that finding is irrelevant in the present case, since the injury identified by the Commission in the contested regulation concerns the decrease in the EU industry’s sales prices and market shares.
77 It follows from the above that the applicant has not shown that the Commission committed a manifest error of assessment in the analysis of the non-attribution of the injury suffered by the EU industry to factors other than the dumped imports.
78 The second part of the third plea in law must therefore be rejected as unfounded.
79 Consequently, the third plea in law must be rejected as unfounded.
The fourth plea in law, alleging breach of the ‘obligation of due diligence and proper administration’
80 The applicant claims that, by failing to carry out a market segment analysis for the purposes of determining injury and causation, the Commission failed in its ‘obligation of due diligence and proper administration’. In particular, the applicant submits that it, together with the representative association of Chinese producers, drew the Commission’s attention during the proceeding to the importance of the existence of different market segments and requested that an injury and causation analysis be carried out with regard to industries. Admittedly, the Commission was not obliged to carry out a segment-by-segment analysis. However, the General Court has already held that such an analysis may be necessary (judgment of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317). In addition, the applicant refers to the Appellate Body report in the dispute ‘China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes (“HP-SSST”) from Japan’ (see paragraph 47 above).
81 The Commission and the interveners submit that, in view of the Court of Justice’s rejection in the judgment on appeal of the applicant’s argument that the Commission was required to carry out, in addition to the PCN-by-PCN analysis, a segment-by-segment analysis of the market in the context of the determination of injury, the fourth plea in law in the action should be rejected in so far as it is based on that argument.
82 The Commission and the interveners dispute, in any event, the applicant’s arguments.
83 In response to a question from the General Court, the applicant stated at the hearing on 18 November 2022 that, having regard to the judgment on appeal, its fourth plea in law related solely to the analysis of the causal link under Article 3(6) and (7) of the basic regulation, and not to the existence of price undercutting under Article 3(2) and (3) of that regulation.
84 It should be noted that, where the institutions of the European Union have a wide discretion, compliance with the guarantees conferred by the EU legal order in administrative procedures is all the more fundamental and that those guarantees include, in particular, the obligation for the competent institution to examine, with care and impartiality, all the relevant elements of the case, the right of the person concerned to make his or her point of view known and to have the decision adequately reasoned. In that context, it is for the Courts of the European Union to ensure that the institutions have taken account of all the relevant circumstances and that they have assessed the elements of the case with all due diligence (judgment of 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraphs 63 and 64).
85 In that regard, it should be noted that the fourth plea in law, as pointed out by the applicant at the hearing, is closely linked to the argument put forward in support of the third plea in law, according to which the Commission was obliged to carry out an analysis by market segment in the context of the verification of the causal link between the injury suffered by the EU industry and the dumped Chinese imports during the period considered, under Article 3(6) and (7) of the basic regulation. However, as that argument was rejected in the context of the examination of the third plea in law in paragraphs 43 to 58 and 72 to 75 above, and as the applicant did not put forward any other argument in support of the fourth plea in law, the latter can only be rejected as unfounded.
86 It follows from all the foregoing considerations that the action must be dismissed.
Costs
87 Under Article 219 of the Rules of Procedure, in decisions given after its decision has been set aside and the case referred back to it, the General Court is to decide on the costs relating, first, to the proceedings instituted before it and, secondly, to the appeal proceedings before the Court of Justice.
88 Given that, in the judgment on appeal, the Court of Justice set aside the original judgment and reserved the costs, it is for the General Court to decide, in the present judgment, on all the costs relating to the proceedings brought before it, and on the costs relating to the proceedings on the appeal in Case C‑891/19 P.
89 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission and the interveners, in accordance with the form of order sought by them, in the original proceedings before the General Court, in the proceedings before the Court of Justice and in the present proceedings after referral.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Hubei Xinyegang Special Tube Co. Ltd to bear its own costs as well as those incurred by the European Commission, ArcelorMittal Tubular Products Roman SA, Válcovny trub Chomutov a.s. and Vallourec Deutschland GmbH in the proceedings before the Court of Justice in Case C‑891/19 P and in the proceedings before the General Court in Cases T‑500/17 and T‑500/17 RENV.
Costeira | Kancheva | Tichy-Fisslberger |
Delivered in open court in Luxembourg on 29 March 2023.