Case T-206/07

Foshan Shunde Yongjian Housewares & Hardware Co. Ltd

v

Council of the European Union

(Dumping – Imports of ironing boards originating in the People’s Republic of China and Ukraine – Market economy treatment – Rights of the defence – Article 2(7)(c) and Article 20(5) of Regulation (EC) No 384/96)

Summary of the Judgment

1.      Common commercial policy – Protection against dumping – Dumping margin

(Council Regulation No 384/96, Art. 2(7)(c))

2.      Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

3.      Common commercial policy – Protection against dumping – Anti-dumping proceeding – Acts adversely affecting a party

(Council Regulation No 384/96, Art. 20(4))

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

(Council Regulation No 384/96, Art. 20(4) and (5))

1.      Since the reason for the refusal to alter the initial determination on market economy treatment (MET) made in the provisional regulation is not the prohibition on the reassessment of old facts contained in the last sentence of Article 2(7)(c) of the basic anti-dumping Regulation No 384/96, but rather the fact that the undertaking’s accounts are not in line with the International Accounting Standards and the absence of any new evidence likely to affect that finding, the refusal arises from application of the substantive criteria of the second indent of the first subparagraph of Article 2(7)(c) of that regulation.

(see paras 44-50)

2.      Under the obligation laid down in Article 253 EC, the final act adopted at the end of an administrative procedure must state the reasons on which it was based only as regards all the elements of fact and of law that are relevant for the purposes of the findings made in it. The purpose of the obligation to state reasons is not to explain the way in which the institution’s position has evolved during the administrative procedure and is not therefore intended to justify any differences between the outcome reached in the final act and the provisional position set out in the documents sent to interested parties during that procedure in order to enable them to submit their observations. Nor, therefore, does that obligation require the institution to explain in what way a position envisaged at a particular stage in the administrative procedure may have been unfounded.

(see para. 52)

3.      The purpose of the final disclosure document provided for by Article 20(4) of the basic anti-dumping Regulation No 384/96 is disclosure, during the administrative procedure, of the essential facts and considerations on the basis of which the Commission intends to recommend to the Council the imposition of definitive measures. It is intended to inform all interested parties of the proposed guidelines and to obtain observations from them in that regard and does not constitute an act adversely affecting a person concerned or conferring rights. As it is open to amendment in the light of the observations received, the position set out by the Commission is necessarily provisional, as is clear from the last sentence of that provision; accordingly, it is not necessary for the definitive statement of reasons to contain any explanation as to why the findings in a final general disclosure document on which the Commission reversed its position are unfounded.

(see paras 53-54)

4.      The principle of respect for the rights of the defence is a fundamental principle of Community law, whereby the undertakings affected by an investigation preceding the adoption of a regulation introducing definitive anti-dumping duties must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged.

Those requirements are implemented through Article 20(4) of the basic anti-dumping Regulation No 384/96, which provides that final disclosure of the essential facts and considerations on the basis of which the Commission intends to recommend to the Council the adoption of definitive measures must be given in writing to the undertakings concerned, which implies that any changes must be disclosed as soon as possible.

Since Article 20(4) of the basic regulation makes express reference to ‘different facts and considerations’, it also requires that alteration of the assessment of factual information that remains unchanged be communicated to the interested parties, so that they can submit their observations in that regard.

It follows from Article 20(5) of the basic regulation that submission by the Commission of its proposal for definitive measures to the Council cannot take place before expiry of a 10-day time-limit following final disclosure being given to those undertakings, which ensures that any representations made by the undertakings which are likely to have significant consequences for the content of the final act are actually taken into account by the Commission before submission of the proposal to the Council. However, failure to comply with that time-limit can result in annulment of the Council regulation only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome actually affecting the rights of defence of the undertakings concerned.

(see paras 63-67, 69, 71)