Case T-249/06

Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT)

v

Council of the European Union

(Dumping – Imports of certain seamless tubes and pipes, of iron or steel, originating in Croatia, Romania, Russia and Ukraine – Calculation of the normal value – Cooperation of the Community industry – Adjustment – Functions comparable to those of an agent working on a commission basis – Single economic entity – Manifest error of assessment – Offer of an undertaking – Rights of the defence – Duty to state reasons)

Summary of the Judgment

1.      Common commercial policy – Protection against dumping – Discretion of the institutions – Judicial review – Limits

2.      Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Recourse to the constructed value

(Council Regulation No 384/96, Arts 6(8) and 18)

3.      Common commercial policy – Protection against dumping – Injury

(Council Regulation No 384/96, Arts 3(2), (3), (5), (6) and (7), 6(2) and 18(3))

4.      Common commercial policy – Protection against dumping – Anti-dumping proceeding – Access to the file – Communication of non-confidential summaries

(Council Regulation No 384/96, Art. 19(3))

5.      Common commercial policy – Protection against dumping – Investigation – Discretion of the Commission

(Council Regulation No 384/96, Art. 5(4))

6.      Community law – Principles – Rights of the defence – Observance thereof in the context of administrative proceedings – Anti-dumping

(Council Regulation No 384/96, Arts 2(10) and 20(2))

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

(Council Regulation No 384/96, Art. 2(10)(i))

8.      Common commercial policy – Protection against dumping – Dumping margin – Comparison between the normal value and the export price – Adjustments

(Council Regulation No 384/96, Art. 2(10))

9.      Common commercial policy – Protection against dumping – Offer of price undertakings – Acceptance – Discretion of the institutions

(Council Regulation No 384/96, Art. 8(1))

1.      In the sphere of measures to protect trade the Community institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine.

Review by the Community Courts of the institutions’ assessments must therefore be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.

(see paras 38-39)

2.      Whilst the Community institutions have a wide power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

Whilst in the area of commercial defence measures, and anti-dumping measures in particular, the Community Courts cannot intervene in the assessment reserved for the Community authorities, it is nevertheless for them to satisfy themselves that the institutions took account of all the relevant circumstances and appraised the facts of the matter with all due care, so that the constructed normal value may be regarded as having been determined in a reasonable manner.

In that regard, where the Commission has contradictory information, or, at the very least, information the validity of which could be called into question, the onus is on the applicant to provide evidence in support of its arguments. In the absence of that evidence, the Commission complies with its obligation to examine, with care and impartiality, all the relevant factors of the case where it states that it cannot take account of new, unverified, information.

(see paras 40-41, 50-51, 53)

3.      Whilst, in the context of basic anti-dumping Regulation No 384/96, it is for the Commission as the investigating authority to determine whether the product concerned by the anti-dumping procedure has been dumped and causes injury when placed in free circulation in the Community, and it is not therefore for that institution, in that context, to exonerate itself from part of the burden of proof which it bears in that regard, the fact remains that that regulation does not confer on the Commission any power of investigation allowing it to compel companies to participate in the investigation or to provide information. In those circumstances, the Council and the Commission depend on the voluntary cooperation of the parties in supplying the necessary information within the time-limits set. In that context, the replies of those parties to the questionnaire referred to in Article 6(2) of that regulation are therefore essential to the operation of the anti-dumping procedure.

Although the parties to an anti-dumping proceeding are in principle required, pursuant to Article 6(2) of Regulation No 384/96, to lodge a reply to the Commission’s questionnaire, it follows from the wording of Article 18(3) of that regulation that information presented in another form or in the context of another document do not have to be ignored where any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding, the information is appropriately submitted in good time and is verifiable, and the party has acted to the best of its ability.

Thus, where a party has failed to lodge a reply to the said questionnaire, but has supplied information in the context of another document, it cannot be accused of lack of cooperation if those four conditions have been satisfied. Such a party will not be regarded as not cooperating if the deficiencies in the production of the data have no significant impact on the running of the investigation. In such a situation, the Council cannot be accused of making a manifest error of assessment by taking the view that the non-submission of questionnaire replies does not distort either the determination of the injury of the calculation of the margin of injury.

(see paras 87-88, 90-92, 98)

4.      In an anti-dumping proceeding, irregularities in the Commission’s communication of non-confidential summaries within the meaning of Article 19(3) of basic anti-dumping Regulation No 384/96 cannot constitute an infringement of procedural rights justifying annulment of the regulation fixing the anti-dumping duties unless the person concerned did not have sufficient knowledge of the essential content of the document or documents in question and was therefore not able validly to express his point of view on their accuracy or relevance. Therefore, use by the Commission of information of which no non-confidential summary was supplied cannot be relied upon by parties to an anti-dumping proceeding as a ground for annulment of an anti-dumping measure unless they are able to demonstrate that use of that information constituted an infringement of their defence rights.

Concerning the right of access to the investigation file, defence rights are infringed only where there is a chance, which may be slight, that disclosure of the documents in question might have caused the administrative procedure to have a different result if the undertaking concerned had been able to rely on them during that procedure.

(see paras 131, 134)

5.      In an anti-dumping proceeding, Article 5(4) of basic anti-dumping Regulation No 384/96 does not place any obligation on the Commission to terminate an anti-dumping proceeding in progress where the level of support for the complaint falls below a minimal threshold of 25% of Community production. That article concerns only the degree of support for the complaint necessary for the Commission to be able to initiate a proceeding. That interpretation is confirmed by the wording of Article 9(1) of the basic regulation. Thus, even if the complaint is withdrawn by the Community industry, the Commission is not placed under an obligation to terminate the proceeding, but merely has the option to do so.

(see para. 139)

6.      Under the principle of compliance with defence rights, the undertakings concerned by investigative proceedings prior to the adoption of an anti-dumping regulation must be placed in a position during the administrative procedure effectively to state 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.

However, although the legislature intended to confer on the parties concerned, particularly exporters, a right under Article 20(2) of basic anti-dumping Regulation No 384/96 to be informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive anti-dumping duties, the Commission is not required to inform the parties concerned of all the various factual or legal matters relevant in that respect, such as details of the assessment of the injury.

Moreover, in the context of the comparison between normal value and export price, the parties concerned by an anti-dumping proceeding have the right to be informed not only that an adjustment has been made in accordance with Article 2(10) of the basic regulation, but also of the reasons why it was made. Thus, the Commission’s merely notifying the parties concerned that an adjustment has been made, without explaining the reasons, cannot be regarded as sufficient having regard to the obligation to comply with defence rights.

Nevertheless, such an irregularity on the part of the Commission is not capable of constituting an infringement of defence rights, justifying annulment of a regulation imposing definitive anti-dumping duties, unless the applicants have established, not that the said regulation would have had a different content, but that they would have been better able to defend themselves in the absence of that irregularity.

(see paras 64, 146, 148, 200-201, 208)

7.      In an anti-dumping proceeding, and in particular when calculating the export price, the sharing of production and sales activities within a group formed by legally distinct companies does not alter the fact that one is dealing with a single economic entity which organises in that manner a series of activities which are carried out, in other cases, by an entity which is also a single entity from the legal point of view.

Where it is found that a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company for the distribution of its products which it controls economically and with which it forms a single economic entity, the fact that the institutions base their reasoning on the prices paid by the first independent buyer from the affiliated distributor is justified. Taking the prices of the affiliated distributor into account avoids costs which are clearly included in the sale price of a product when that sale is carried out by an integrated sales department in the producer’s organisation no longer being included where the same sales activity is carried out by a company which is legally distinct, even though economically controlled by the producer.

A single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company for distributing its products which it controls economically. Moreover, the capital structure is a relevant indicator of the existence of a single economic entity. In addition, a single economic entity may exist where the producer assumes part of the sales functions complementary to those of the distribution company for its products.

(see paras 177-179)

8.      It is apparent both from the wording and the general system of Article 2(10) of the basic anti-dumping Regulation No 384/96 that an adjustment of the export price or normal value may be made only in order to take account of differences concerning factors which affect prices and thus their comparability. The raison d’être of an adjustment is to re-establish the symmetry between normal value and export price. Thus, if the adjustment has been validly made, that implies that it has re-established that symmetry. By contrast, if the adjustment has not been validly made, that implies that it has maintained or created an asymmetry between the normal value and the export price.

Moreover, just as a party who is claiming adjustments under Article 2(10) of Regulation No 384/96 in order to make the normal value and the export price comparable for the purpose of determining the dumping margin must prove that his claim is justified, it is incumbent upon the institutions, where they consider that they must make an adjustment of that type, to base their decision on direct evidence or at least on circumstantial evidence pointing to the existence of the factors for which the adjustment was made, and to determine its effect on price comparability.

(see paras 180, 184, 194-195)

9.      There is no provision of basic anti-dumping Regulation No 384/96 requiring the Community institutions to accept proposed price undertakings formulated by the traders concerned by an investigation prior to the establishment of anti-dumping duties. On the contrary, it is apparent from that regulation that the acceptability of such undertakings is defined by the institutions in the context of their discretionary power.

By virtue of Article 8(1) of the basic regulation, a fundamental condition for the Commission’s acceptance of an offer of undertaking is that ‘[exporters have given] satisfactory voluntary undertakings … to revise [their] prices or to cease exports … at dumped prices’. Thus, rejection of an offer of undertakings may validly result in the finding that minimum import prices are not sufficient to eliminate the prejudicial effect of the dumping.

(see paras 225, 230)