JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
21 June 2023 (*) (1)
(Dumping – Extension of the definitive anti-dumping duty imposed on imports of certain aluminium foil originating in China to imports of certain aluminium foil consigned from Thailand – Anti-circumvention investigation – Circumvention – Article 13 of Regulation (EU) 2016/1036 – Sufficient evidence – Manifest error of assessment – Obligation to state reasons)
In Case T‑748/21,
Hangzhou Dingsheng Industrial Group Co., Ltd, established in Hangzhou (China),
Dingheng New Materials Co., Ltd, established in Rayong (Thailand),
Thai Ding Li New Materials Co., Ltd, established in Rayong,
represented by G. Coppo and G. Pregno, lawyers,
applicants,
v
European Commission, represented by P. Němečková, acting as Agent,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, S. Gervasoni and I. Reine (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By their action pursuant to Article 263 TFEU, the applicants, Hangzhou Dingsheng Industrial Group Co., Ltd, Dingheng New Materials Co., Ltd and Thai Ding Li New Materials Co., Ltd, seek the annulment of Commission Implementing Regulation (EU) 2021/1474 of 14 September 2021 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) 2015/2384 and Implementing Regulation (EU) 2017/271 on imports of certain aluminium foil originating in the People’s Republic of China to imports of certain aluminium foil consigned from Thailand, whether declared as originating in Thailand or not (OJ 2021 L 325, p. 6) (‘the contested regulation’).
Background to the dispute
2 The applicants all belong to the Dingsheng Group, a Chinese multinational company active in the manufacture of aluminium products with a presence in Thailand.
3 On 24 September 2009, the Council adopted Regulation (EC) No 925/2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (OJ 2009 L 262, p. 1).
4 The products subject to the anti-dumping measures were aluminium foil of a thickness of not less than 0.008 mm and not more than 0.018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm and of a weight exceeding 10 kilograms, classified under CN code ex 7607 11 19 of the Combined Nomenclature (TARIC code 7607111910) and originating in Armenia, Brazil and the People’s Republic of China.
5 By Commission Implementing Regulation (EU) 2015/2384 of 17 December 2015 imposing a definitive anti-dumping duty on imports of certain aluminium foils originating in the People’s Republic of China and terminating the proceeding for imports of certain aluminium foils originating in Brazil following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2015 L 332, p. 63), the anti-dumping measures were extended.
6 On 31 May 2016, the European Commission adopted Implementing Regulation (EU) 2016/865 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Implementing Regulation 2015/2384 on imports of certain aluminium foil originating in the People’s Republic of China by imports of slightly modified certain aluminium foil from the People’s Republic of China, and making such imports subject to registration (OJ 2016 L 144, p. 35).
7 By Commission Implementing Regulation (EU) 2017/271 of 16 February 2017 extending the definitive anti-dumping duty imposed by Council Regulation No 925/2009 on imports of certain aluminium foil originating in the People’s Republic of China to imports of slightly modified certain aluminium foil (OJ 2017 L 40, p. 51), the anti-dumping measures were extended to the following products:
– ‘aluminium foil of a thickness of not less than 0.007 mm and less than 0.008 mm, regardless of the width of the rolls, whether or not annealed, falling within CN code ex 7607 11 19 (TARIC code 7607111930)’;
– ‘aluminium foil of a thickness of not less than 0.008 mm and not more than 0.018 mm and in rolls of a width exceeding 650 mm, whether or not annealed, falling within CN code ex 7607 11 19 (TARIC code 7607111940)’;
– ‘aluminium foil of a thickness of more than 0.018 mm and less than 0.021 mm, regardless of the width of the rolls, whether or not annealed, falling within CN code ex 7607 11 19 (TARIC code 7607111950)’;
– ‘aluminium foil of a thickness of not less than 0.021 mm and not more than 0.045 mm, when presented with at least two layers, regardless of the width of the rolls, whether or not annealed, falling within CN code ex 7607 11 90 (TARIC codes 7607119045 and 7607119080)’.
8 Following a complaint lodged by an anonymous user (‘the complaint’), on 18 December 2020, the Commission adopted Implementing Regulation (EU) 2020/2162 initiating an investigation concerning possible circumvention of the anti-dumping measures imposed by Implementing Regulation 2015/2384 and Implementing Regulation 2017/271 on imports of certain aluminium foil originating in the People’s Republic of China by imports of certain aluminium foil consigned from Thailand, whether declared as originating in Thailand or not, and making such imports subject to registration (OJ 2020 L 431, p. 48, ‘the initiation regulation’), citing, inter alia, 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’), in particular Article 13(3) and Article 14(5) thereof.
9 On 14 September 2021, the Commission adopted the contested regulation.
10 In recital 30 of the contested regulation, it was stated that the investigation period was from 1 January 2016 to 30 June 2020, whereas the reporting period was from 1 July 2019 to 30 June 2020.
11 It is apparent from Article 1(1) of the contested regulation that the products covered by the extension of the definitive anti-dumping duty are those referred to in paragraphs 4 and 7 above, consigned from Thailand (‘the products concerned’).
12 Under Article 1(2) of the contested regulation, the products concerned were ‘exempted from the … anti-dumping duty if [they were] imported for other uses than household foil’.
Forms of order sought
13 The applicants claims that the Court should:
– annul the contested regulation in so far as it concerns them;
– order the Commission to pay the costs.
14 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
15 The applicants rely on two pleas in law in support of the action: (i) infringement of the basic regulation when the anti-circumvention investigation was initiated; and (ii) infringement of the obligation to state reasons.
First plea: infringement of the basic regulation by the initiation of the anti-circumvention investigation
Preliminary observations
16 By the first plea, the applicants submit, inter alia, that the Commission was required to verify the content of the complaint and, if necessary, to supplement it so that it was sufficient to enable the anti-circumvention investigation to be initiated. In their submission, since the information provided in the complaint was not sufficient for that initiation, the Commission should have supplemented that complaint, at the very least before that initiation.
17 In recital 15 of the contested regulation, the Commission claims to have cross-checked and supplemented the complaint. However, it does not provide proof of such verification. Nor, moreover, does the text of the initiation regulation refer to it. The applicants add that the Commission never provided the statistics from the Integrated Tariff of the European Union (TARIC) which they expressly requested in their observations of 3 February 2021 on the initiation of the anti-circumvention investigation. Accordingly, the initiation of that investigation was based solely on the information contained in the complaint.
18 The Commission replies that it is required to initiate an anti-circumvention investigation where a complaint contains sufficient evidence of the factors referred to in Article 13(1) and, where applicable, Article 13(2) of the basic regulation. It adds that the complainant is only obliged to provide information which is reasonably available to it and that it must, as far as possible, examine the accuracy and adequacy of the evidence provided and duly and diligently assess its sufficiency. It takes the view, however, that it is under no obligation to obtain additional information on its own initiative before the initiation of the anti-circumvention investigation. It explains that, in any event, the complaint contained sufficient evidence, in particular as regards the condition relating to change in the pattern of trade, referred to in Article 13(1) of that regulation. In its submission, the substantial increase in imports of the product concerned from Thailand to the European Union, demonstrated in the complaint, was corroborated by the checks carried out by it.
19 As regards the request for access to TARIC statistics, submitted by the applicants, the Commission submits that the general disclosure document of 24 June 2021 presented the aggregated import data and values from the TARIC. The applicants did not request any other statistical information. In addition, the Commission states that it carried out cross-checks with TARIC statistics for a simple declaratory purpose and with the objective of corroborating the complaint rather than supplementing it.
20 In the present case, it is apparent from the case-law that the Commission is not obliged to restrict itself to the information provided in the complaint, with the result that it may collect information on its own initiative in order to satisfy the criterion set out in Article 13(3) of the basic regulation concerning the sufficiency of the evidence necessary in order to initiate an investigation (judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 96).
21 In addition, it should be recalled that the provisions of the basic regulation must, in so far as possible, be interpreted in the light of the corresponding provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the anti-dumping agreement’), contained in Annex IA to the Agreement establishing the World Trade Organisation (OJ 1994 L 336, p. 3). Although the interpretations of the anti-dumping agreement adopted by the Dispute Settlement Body of the World Trade Organisation (‘WTO’) are not capable of binding the Court in its assessment as to whether the contested regulation is valid, there is nothing to prevent the Court from referring to them where provisions of the basic regulation have to be interpreted (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 89 and the case-law cited; judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraphs 88 and 89).
22 In the context of the WTO, the Panel Report entitled ‘Guatemala – Anti-dumping investigation regarding Portland cement from Mexico’, adopted on 19 June 1998 (WT/DS60/R, paragraph 7.53) stated specifically that investigations could be initiated in cases where ‘sufficient evidence’ was not ‘reasonably available’ to the complainant. Thus, there is nothing to prevent an investigating authority from itself seeking evidence and information that would make it possible to fill any gaps in the evidence provided in the complaint, without such a step being required on the part of the authority. However, if such an authority decides to refrain from taking such steps, the words, referring to information, ‘which may be reasonably available to the complainant’ do not allow that authority to open an investigation on the basis of evidence and information which, although being everything that may be ‘reasonably available’ to the complainant, is not objectively sufficient to justify the opening of an investigation.
23 In that regard, it is apparent from recital 7 of the initiation regulation that the Commission relied solely on ‘[information] contained in the [complaint]’, even though that regulation does not refer to checks that took place before the initiation of the anti-circumvention investigation and the file does not contain such information.
24 Therefore, it must be held that, in order to initiate the anti-circumvention investigation, the Commission relied solely on the information and evidence contained in the complaint. Consequently, it is necessary to examine whether the evidence and information contained only in the complaint were sufficient to justify such initiation. Moreover, it is not necessary to rule on the applicants’ complaint alleging failure to disclose the TARIC statistics which they requested in their observations of 3 February 2021. Those observations were submitted subsequently to the initiation of the procedure and cannot, therefore, have any effect on the analysis of the evidence available to the Commission at the time of initiation.
25 The applicants submit that the contested regulation is unlawful, since the Commission initiated the anti-circumvention investigation whereas the complaint on which it relied exclusively in that regard did not meet the evidentiary standard required by Article 5(2) and Article 13(3) of the basic regulation. The Commission also infringed Article 5(3) and Article 13(3) of the basic regulation by failing duly to examine the accuracy and adequacy of the evidence provided in the complaint in order to supplement it with additional information gathered on its own initiative.
26 In the applicants’ submission, for the purposes of initiating the anti-circumvention investigation, the complaint had to contain sufficient evidence, which cannot be limited to a mere quantitative threshold, but should be understood in the sense of the quantity and quality of that evidence. Moreover, the complaint should have been examined in terms of its accuracy and adequacy.
27 In that regard, it should be borne in mind that, under Article 13(3) of the basic regulation, it is for the Commission to initiate an investigation on the basis of sufficient evidence which prima facie suggests circumvention practices. According to the case-law, that provision establishes the principle that the burden of proving circumvention falls to the EU institutions (see judgments of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraphs 31 and 35; of 26 January 2017, Maxcom v City Cycle Industries, C‑248/15 P, C‑254/15 P and C 260/15 P, EU:C:2017:62, paragraph 58; and of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraph 49).
28 In accordance with Article 13(1) of the basic regulation, circumvention of anti-dumping measures is established when four cumulative conditions are met. First, there must be a change in the pattern of trade between a third country and the European Union or between individual companies in the country subject to measures and the European Union. Second, that change must stem from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty. Third, there must be evidence of harm to EU industry or that the remedial effects of the anti-dumping duty are being undermined in terms of the prices or quantities of the like product. Fourth, there must be evidence of dumping in relation to the normal values previously established for the like product (see, to that effect, judgment of 26 January 2017, Maxcom v City Cycle Industries, C‑248/15 P, C‑254/15 P and C‑260/15 P, EU:C:2017:62, paragraph 57).
29 In addition, the third subparagraph of Article 13(3) of the basic regulation provides that ‘the relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article’. It follows that Article 5 of that regulation, entitled ‘Initiation of proceedings’, applies in the present case.
30 Thus, Article 5(3) of the basic regulation provides that the Commission must, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint to determine whether there is sufficient evidence to justify the initiation of an investigation. Moreover, certain procedural constraints imposed on the Commission under that regulation may preclude it from carrying out exhaustive checks and analyses of the information provided in the complaint. Thus, under Article 5(9) of that regulation, the Commission has only 45 days as from the lodging of the complaint to decide to initiate the investigation. That time limit may not be sufficient to carry out full checks and analyses of all the information contained in the complaint. Such a duty of checking and analysis would also risk making the complaint public even before the notice of initiation is published, which would infringe Article 5(5) of the basic regulation (judgments of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraphs 96 and 97, and of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 86).
31 In that regard, it should be noted that the quantity and quality of the evidence necessary to meet the criteria of the sufficiency of the evidence for the purpose of initiating an investigation is different from that which is necessary for the purpose of a final determination of whether there is circumvention. Therefore, evidence which is insufficient in quantity or quality to justify a final determination of circumvention may nevertheless be sufficient to justify the initiation of an investigation (see, to that effect, judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 98). Thus, Article 5(3) of the basic regulation does not require the Commission to analyse all the information available, which would be for the investigation under Article 6 of the basic regulation (judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 106). It is not a requirement that the information provided in the complaint constitute irrefutable evidence of the existence of the facts alleged. Moreover, the sufficiency of the information depends on the circumstances of each case and must, consequently, be assessed on a case-by-case basis. Nor is it a requirement that the complaint contain an analysis of the information (judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraphs 94 and 95).
32 Moreover, although, admittedly, the accuracy and adequacy of the evidence provided in the complaint are relevant to the determination by the institutions of whether there is sufficient evidence to justify the initiation of an investigation, it should be noted that the legal criterion under Article13(3) of the basic regulation is not as such the accuracy and adequacy of the evidence, but the sufficiency thereof (see, to that effect, judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 99).
33 Moreover, the complaint may be limited to information which may be reasonably available to the complainant (judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 92).
34 Furthermore, it cannot be ruled out that, when imposing anti-dumping duties, the EU institutions may rely on a risk of circumvention in so far as such a risk is genuine and is not merely hypothetical (see, to that effect, judgment of 8 June 2022, Guangxi Xin Fu Yuan v Commission, T‑144/20, not published, EU:T:2022:346, paragraph 149 and the case-law cited).
35 According to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 29; see also judgment of 26 January 2017, Maxcom v City Cycle Industries, C‑248/15 P, C‑254/15 P and C‑260/15 P, EU:C:2017:62, paragraph 56 and the case-law cited). However, the EU judicature must satisfy itself that the institutions have taken account of all the relevant circumstances and appraised the facts of the matter with all due care (see judgment of 18 September 2012, Since Hardware (Guangzhou) v Council, T‑156/11, EU:T:2012:431, paragraph 184 and the case-law cited).
36 It is in the light of those considerations that the complaints of the applicants put forward in the context of the first plea in law should be examined.
37 First, the applicants claim that the complaint was based on inaccurate export statistics. Second, those statistics were outdated. Third, the complaint did not provide sufficient evidence to make out proof of the alleged change in the pattern of trade. Fourth, nor did the complaint contain any evidence relating to the undermining of the remedial effects of the original duties. Fifth, according to the applicants, the complaint did not contain sufficient evidence of dumping.
38 It must be observed at the outset that the first two complaints do not concern the conditions referred to in Article 13(1) of the basic regulation and support, in particular, the third complaint, with which they should be examined.
The lack of sufficient evidence relating to the change in the pattern of trade
39 The applicants claim that the complaint did not contain sufficient evidence to establish the alleged change in the pattern of trade, as required by Article 13 of the basic regulation. In their submission, in the first place, the export statistics on which the complaint was based were manifestly inaccurate and outdated.
40 In that regard, first, the applicants observe that the complaint was based on inaccurate and unrepresentative export statistics in that they concerned a wide variety of products which were not limited to the products concerned. In their submission, whilst the anti-circumvention investigation concerned aluminium household foil, those statistics included a variety of products, in particular all aluminium foil, including aluminium converter foil. Such an approach is not permitted by the basic regulation. In that context, the applicants consider that the complainant should have adjusted the data from those statistics, which it failed to do.
41 Second, the applicants maintain that the complaint was based on export statistics which were outdated and therefore unreliable. In particular, those statistics relate to the period between January 2015 and December 2019, that is to say, a period ending almost one year before the complaint of 9 November 2020 was lodged. The complainant could easily have obtained more recent information. The applicants also dispute the Commission’s contention, in recital 15 of the contested regulation, that they had not argued that the use of more recent data would have led to a different conclusion as regards the alleged circumvention practices. It is for the Commission to satisfy itself that it has sufficient evidence to initiate an anti-circumvention investigation.
42 In the second place, according to the applicants, even if the export statistics were accurate, imports into the European Union from both China and Thailand are on the rise. It was impossible to infer therefrom that exports from the People’s Republic of China into the European Union had been replaced by exports from Thailand into the European Union, particularly since the complaint merely made assumptions in that regard. The applicants add that circumvention cannot be based on a mere risk of circumvention. In the reply, they state that, in their Thai facilities, they processed foil stock into aluminium foil. There is therefore no ‘assembly’ of separate parts to create a new single product.
43 The Commission disputes the applicants’ arguments.
44 It should be borne in mind that the definition of ‘circumvention’ is set out in Article 13(1) of the basic regulation in very general terms, which leaves a broad discretion to the EU institutions, since no details of the nature of and detailed arrangements for the ‘change in the pattern of trade between third countries and the Union’ are given (judgments of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 48, and of 8 June 2022, Guangxi Xin Fu Yuan v Commission, T‑144/20, not published, EU:T:2022:346, paragraph 145).
45 In the present case, in the first place, it is apparent from the complaint that, in 2017, which corresponds to the year of adoption of Implementing Regulation 2017/271, by which the definitive anti-dumping duty was extended to all the products concerned, exports to the European Union from Thailand amounted to a total quantity of 375 tonnes, as opposed to the 25 tonnes exported from that third country in 2016. Moreover, in 2018, the volume of those exports rose to 3 417 tonnes to reach an overall level of 7 240 tonnes in 2019.
46 The applicants do not dispute the truth of those data. They do submit, however, that they relate to CN codes 7607 11 19 and 7607 11 90 of the Combined Nomenclature, which concern a wide variety of products not limited to the products concerned.
47 It is true that CN codes 7607 11 19 and 7607 11 90 of the Combined Nomenclature include, in addition to the products concerned, other products such as aluminium converter foil.
48 However, the applicants admit, without providing further details, that CN code 7607 11 19 of the Combined Nomenclature covers the most representative product types. Moreover, in view of the considerable increase, in the space of three years, in the volume of imports of aluminium foil, including those intended for household use and processing, that volume being 289 times higher since the extension of the definitive anti-dumping duty in 2017, the Commission did not make a manifest error of assessment in finding that there was sufficient evidence relating to the change in the pattern of trade, or at least a risk of circumvention in relation to the products concerned.
49 First, in view of the increase in imports of aluminium foil from Thailand, it was likely that the proportion of the products concerned in that increase was equally large. The applicants have not claimed that those imports related almost solely to products different from the products concerned, such as aluminium converter foil. Second, as is apparent from the case-law cited in paragraph 34 above, the imposition of an anti-dumping duty may be based on a risk of circumvention where such a risk is genuine and is not merely hypothetical. In the light of the case-law cited in paragraph 31 above, those principles apply a fortiori where an anti-circumvention investigation is initiated. In view of the foregoing, the Commission could find, at the very least, that such a risk was present at the time of the initiation of that investigation.
50 In the second place, the complaint contains statistics relating to imports into Thailand of the raw material from China, namely foil stock and jumbo rolls, which are used for the production of the products concerned in Thailand and which contribute to the export of the products concerned to the European Union. First, it is apparent that, between 2016, the year of adoption of Implementing Regulation 2016/865, by which the anti-circumvention investigation was initiated in respect of the products concerned subject to registration, and 2019, imports of aluminium foil falling within HS code 7607 11 of the Harmonised System increased annually by between almost 9% and 32%. Second, between 2015 and 2018, imports of aluminium alloy plates, sheets and strip falling within HS code 7606 12 of the Harmonised System from China into Thailand increased by between 13% and 18% and then decreased by 22% in 2019.
51 Those statistics support the point that there was a considerable increase in exports of the products concerned from Thailand to the Union. The Commission could rely on those data in order to find that imports from China into Thailand were likely to support the production of the products concerned in Thailand so that they could be exported to the European Union, in circumvention of the anti-dumping duty imposed on exports of the products concerned from China. Even though it is true that HS codes 7606 12 and 7607 11 of the Harmonised System include a range of products broader than only the products concerned, by analogy with the reasons set out in paragraph 48 above, that does not mean that there is a manifest error of assessment on the part of the Commission for the purposes of initiating the anti-circumvention investigation. Such an error is even less proven since, in accordance with the case-law cited in paragraph 31 above, it is not required that the information provided in the complaint constitute irrefutable proof of the existence of the facts alleged.
52 Moreover, it is clear that, in the application, the applicants do not dispute the Commission’s findings relating to assembly operations, which means that nor do they deny that there are in fact imports of raw material into Thailand from China.
53 It was only at the stage of the reply that the applicants began to challenge the existence of assembly operations.
54 However, under Article 84(1) of the General Court’s Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
55 Furthermore, according to the case-law, Article 84(1) of the Rules of Procedure is also applicable to complaints or arguments which do not amplify pleas in law or complaints set out in the application (see, to that effect, judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 59 and the case-law cited).
56 Lastly, it should be noted that the Commission’s findings relating to assembly operations are set out in recital 9 of the initiation regulation and in recitals 42 and 79 to 82 of the contested regulation, to which reference was also made in the complaint.
57 Consequently, the applicants were fully in a position to challenge those findings in the application.
58 As a result, the applicants’ arguments relating to the existence of assembly operations, relied on in the reply, which do not amplify the present complaint put forward in the application, are inadmissible pursuant to Article 84 of the Rules of Procedure.
59 In any event, the applicants merely state in the reply that, in their Thai facilities, they processed foil stock into aluminium foil. There is therefore no ‘assembly’ of separate parts to create a new single product. However, they do not substantiate their claims in any way.
60 It follows that the applicants have not validly called into question the facts relating to the assembly of the products concerned and, consequently, to imports of raw material into Thailand from China.
61 In the third place, it should be borne in mind that Article 13(1) of the basic regulation makes no reference to any requirement as to the replacement of imports originating in countries subject to the anti-dumping duty by those from circumvention countries as a condition necessary for a finding of circumvention (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 47).
62 Consequently, the applicants cannot validly argue that it was not demonstrated that exports from the People’s Republic of China into the European Union had been replaced by exports from Thailand into the European Union.
63 In the fourth place, as regards the allegedly outdated statistics in the complaint, first of all, in the light of the considerations set out in paragraph 24 above, the Commission’s argument to the effect that it collected more detailed data concerning the period from 1 July 2019 to 30 June 2020 must be rejected, as it has not made out proof of this.
64 It is apparent, however, from the data in the complaint that the Commission relied on a body of consistent evidence in order to find that there was circumvention and that the change in the pattern of trade between Thailand and the European Union coincided with the initiation of the anti-circumvention investigation in 2016 and the extension of the anti-dumping duty to the products concerned originating in China in 2017. That coincidence in time constitutes significant evidence making it possible to establish a link based on logic and reason between the considerable increase in imports into the European Union from Thailand and the previous anti-circumvention investigation (see judgment of 8 June 2022, Guangxi Xin Fu Yuan v Commission, T‑144/20, not published, EU:T:2022:346, paragraph 159 and the case-law cited).
65 Furthermore, it is apparent from the complaint that, at the time of initiation of the anti-circumvention investigation, the information available to the Commission appeared to suggest that there was a significant amount of assembly operations of the product concerned in Thailand (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 53).
66 Therefore, the Commission could rely solely on the information contained in the complaint for the purpose of initiating the anti-circumvention investigation.
67 In those circumstances, even though, as concluded in paragraph 63 above, the Commission has not demonstrated that it collected more detailed data concerning the period between 1 July 2019 and 30 June 2020, in accordance with the principles cited in paragraph 22 above, it was not required to do so, since the complaint contained sufficient evidence, without its being necessary to gather such more detailed data.
68 Furthermore, it should be noted that, in the context of a challenge to the Commission’s assessment, an applicant cannot merely propose its interpretation of the various economic factors, but must state the reasons why the Commission should have reached a different conclusion on the existence of circumvention on the basis of those factors (see, by analogy, judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 54). That is all the more so at the stage of the initiation of an investigation which may be justified as soon as there is a risk of circumvention in accordance with Article 5(3) of the basic regulation.
69 In the present case, first, the applicants have not challenged the findings of fact or the figures in the complaint on which the Commission relied. Second, they merely stated that the export statistics were outdated. However, they have not adduced the slightest evidence that the Commission made a manifest error of assessment in using statistics covering the period from 2015 to 2019. Nor have they provided more recent statistics to substantiate their allegations, even though they claim that they could be obtained easily by the complainant.
70 Moreover, the more recent data in Tables 1 and 2 of the general disclosure document of 24 June 2021, reproduced in recitals 44 and 48 of the contested regulation, show that, during the reporting period, from 1 July 2019 to 30 June 2020, exports of jumbo rolls from Thailand to the European Union rose, as did exports of raw materials from China to Thailand. Thus, in any event, the applicants could not have found support in those more recent statistics.
71 In the light of all the foregoing, the present complaint must be rejected.
The lack of evidence relating to the undermining of the remedial effects of the original duties
72 The applicants claim that the complaint did not contain sufficient evidence relating to the undermining of the remedial effects of the original duties. In their submission, in order to determine the underselling margin of the indicative prices, the complaint was based on average production costs of the Union industry during the reporting period of Implementing Regulation 2015/2384 (the period between October 2013 and September 2014), to which a target profit of 6% was added. However, the complainant failed to adjust the costs of production (and hence, the non-injurious price) in order to reflect the fluctuation in the price of aluminium, which is the principal cost in the manufacturing of aluminium household foil.
73 The Commission disputes the applicants’ arguments.
74 It should be noted that, in order to establish circumvention, Article 13(1) of the basic regulation refers to the maintenance of the remedial effects of the anti-dumping duty in terms of prices and/or quantities of the like product. It follows from that criterion that it is sufficient for such remedial effects to be established alternatively, either in terms of the prices of like products or in terms of the quantities of such products.
75 In the present case, it is apparent from the complaint that the allegations relating to the undermining of the remedial effects of the original duties are based not only on a line of reasoning about the prices of like products, but also on factors relating to the quantities of such products imported into the European Union from Thailand.
76 In the reply, the applicants admit that they did not raise any specific argument about the undermining of the remedial effects of the anti-dumping measures in relation to the quantities of like products. They nevertheless justify that omission by stating that it is the logical corollary of their arguments relating to the incorrect and outdated statistics provided in the complaint.
77 In that regard, first, in the light of the considerations set out in paragraphs 54 and 55 above, that argument must be rejected as out of time, since it is apparent from the complaint and from recital 10 of the initiation regulation that the anti-circumvention investigation was initiated, inter alia, because of the undermining of the remedial effects of the existing anti-dumping measures in terms of quantities as well. Hence, the applicants were in a position to put forward arguments in that regard at the stage of the application.
78 Second, under Article 76(d) of the Rules of Procedure, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. It follows from the case-law that the application must specify the nature of the grounds on which the action is based. Thus, the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst it is true that the body of the application may be supported and supplemented in the reply, that cannot make up for the absence of essential arguments in law which, in accordance with the abovementioned provision, must appear in the application. The application must specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. In order to guarantee legal certainty and the sound administration of justice, the summary of the applicant’s pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent Court to rule on the action. Thus, it is not for the Court to seek and identify the pleas on which it may consider the action to be based (see, to that effect, judgments of 14 May 1998, Mo och Domsjö v Commission, T‑352/94, EU:T:1998:103, paragraph 333, and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 110).
79 Consequently, the applicants cannot rely on a logical correlation which is not readily apparent from the application.
80 Accordingly, the applicants’ arguments relating to the undermining of the remedial effects of the anti-dumping measures in relation to quantities, put forward for the first time in the reply, even though they could have been included in the application and do not amplify the present complaint put forward in the application, must be rejected as inadmissible.
81 It follows that the present complaint is based solely on reasoning relating to the prices of like products whereas, under Article 13(1) of the basic regulation, the Commission could refer solely to the undermining of the remedial effects in terms of quantities of like products, without also being required to refer to the prices of such products.
82 Therefore, since the present complaint is formulated solely in terms of prices of the like product, it must be rejected as ineffective.
The lack of evidence of dumping
83 The applicants submit, first of all, that, for the purposes of determining normal value, the complaint did not take account of the fact that, at the time when Implementing Regulation 2015/2384 was adopted, the definition of the product concerned by the measures was narrower than that of the products concerned. They infer therefrom that the comparison made in the complaint between the normal value, based on that implementing regulation, and the export price is irrelevant and that the complainant did not make any corrections by applying appropriate adjustments. Next, in the complaint, the export price was calculated on the basis of export statistics concerning a wide variety of products. Lastly, the Commission also failed to complete the complaint prior to the initiation of the anti-dumping investigation.
84 The Commission disputes the applicants’ arguments.
85 In the light of the conclusion set out in paragraph 24 above, the present complaint must be analysed solely in the light of the evidence and information contained in the complaint.
86 That said, as is apparent from the case-law cited in paragraph 28 above, in accordance with Article 13(1) of the basic regulation, circumvention of anti-dumping measures is established, inter alia, where there is evidence of dumping in relation to the normal value previously established for the like product.
87 As regards the determination of the normal value, it is apparent from the complaint that the demonstration of dumping was based on the data used in Implementing Regulation 2015/2384 in connection with an expiry review.
88 It follows that the complaint took into account the normal value established previously.
89 In that regard, first, it should be noted that, according to the case-law, where the product concerned contains several product types, as is the case here, the basic regulation does not require that the complaint provide information on all those product types. Rather, it follows from Article 13(1) and (3) of that regulation that the evidence relating to dumping of the product as a whole must be sufficient for the Commission to be able to conclude that there is sufficient evidence to justify the initiation of the investigation. Therefore, evidence relating to dumping of an insignificant subcategory of the product imported would not be sufficient in that context (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 100).
90 The applicants have not claimed that the product referred to in Implementing Regulation 2015/2384, namely aluminium foil of a thickness of not less than 0.008 mm and not more than 0.018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm, of a weight exceeding 10 kg, constitutes an insignificant subcategory of the products concerned.
91 Second, it must also be ascertained whether, in the complaint, the normal value established related to like products, namely the products concerned, in relation to the product referred to in Implementing Regulation 2015/2384, in accordance with Article 13(1) of the basic regulation.
92 Under the first subparagraph of Article 13(1) of the basic regulation, ‘anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries, of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place’.
93 In the light of the first subparagraph of Article 13(1) of the basic regulation, the products listed in paragraph 7 above, to which the initial anti-dumping duty was extended by Implementing Regulation 2017/271, must be regarded as being like the product referred to in Implementing Regulation 2015/2384.
94 It should also be borne in mind that the determination of the like product falls within the exercise of the wide discretion conferred on the institutions and is therefore subject to limited review (see judgment of 11 July 2013, Hangzhou Duralamp Electronics v Council, T‑459/07, not published, EU:T:2013:369, paragraph 71 and the case-law cited).
95 It follows that the taking into account, in the complaint, of the normal value previously established for the only product referred to in Implementing Regulation 2015/2384 is consistent with Article 13 of the basic regulation.
96 The Commission accordingly could, without making a manifest error of assessment, rely on the data contained in the complaint relating to the normal value previously established in Implementing Regulation 2015/2384.
97 As regards the determination of the export price, it is apparent from the complaint that that price was determined by reference to products falling within CN code 7607 11 19 of the Combined Nomenclature.
98 It is true, as the applicants maintain, that the products falling within CN code 7607 11 19 of the Combined Nomenclature cover a wide array of products which are not limited to the products concerned.
99 However, the applicants themselves acknowledge that CN code 7607 11 19 of the Combined Nomenclature covered the most representative product types.
100 In any event, as observed in paragraphs 30 and 89 above, under Article 5(3) of the basic regulation, applicable in the present case by reason of the third subparagraph of Article 13(3) of that regulation, the Commission must determine whether there is sufficient evidence, assessed as a whole, justifying the initiation of an investigation. In the light of the considerations set out in the context of the present plea, the Commission could, without making a manifest error of assessment, conclude that the complaint contained sufficient evidence and rely on a body of consistent evidence in order to decide to initiate the anti-dumping investigation (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 52). In that regard, it should be borne in mind that, in accordance with the case-law cited in paragraph 32 above, the legal test to be applied in accordance with Article 13(3) of the basic regulation is not the accuracy and adequacy per se of the evidence, but rather its sufficiency.
101 In addition, first, according to the case-law cited in paragraph 44 above, the definition of the term ‘circumvention’ is set out in Article 13(1) of the basic regulation in very general terms which leave a broad discretion to the EU institutions. That principle must apply a fortiori in the context of the initiation of an anti-circumvention investigation provided for in Article 5(3) of that regulation.
102 Second, as has been stated in paragraphs 31, 34 and 49 above, the Commission could rely on a risk of circumvention, without its being required that the information provided in the complaint constitute irrefutable evidence of the existence of the facts alleged. An anti-dumping investigation is a process where certainty on the existence of all of the elements necessary in order to adopt a measure is reached gradually as the investigation moves forward (see, to that effect, in the context of the WTO, the Panel Report entitled ‘Mexico – Anti-dumping duties on steel pipes and tubes from Guatemala’, adopted on 8 June 2007) (WT/DS331/R, paragraph 7.22).
103 Consequently, the present complaint must be rejected, as must, therefore, the present plea in its entirety.
Second plea: infringement of the obligation to state reasons
104 The present plea is divided into two parts. The first concerns the calculation of the non-injurious price and the second concerns the adjustments to the London Metal Exchange (‘the LME’) price.
Preliminary observations
105 According to the case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its power of review (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 75).
106 That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 76).
107 It should also be emphasised that the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned, but that it is sufficient to set out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 15 March 2018, Caviro Distillerie and Others v Commission, T‑211/16, EU:T:2018:148, paragraph 104 and the case-law cited).
108 It must be added that the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to the observations which it has made during the administrative procedure (judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 173).
109 However, where, in a case of dumping, the interested parties insist during the administrative proceeding on obtaining answers or clarifications in respect of the key method to be used by the institutions in making the calculations, it must be held that it is even more important for the institutions to give reasons for their decision in such a way that the persons concerned are able to understand the calculations thus made (judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 127).
110 In addition, the reasons for a measure must appear in the actual body of the measure and may not, save in exceptional circumstances where there is inadequate reasoning, be stated in written or oral explanations given subsequently when the measure is already the subject of proceedings brought before the European Union Courts (see judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 128 and the case-law cited).
111 Where the institutions enjoy a wide power of appraisal, respect for the safeguards guaranteed by the European Union legal order in administrative procedures is of even greater fundamental importance, especially since those guarantees include, in particular, the obligation of the competent institution to give an adequate statement of the reasons for its decision (judgments of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 175, and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 98).
112 It is in the light of those principles that the Court must examine the two parts of the present plea.
First part: calculation of the non-injurious price
113 The applicants claim that, in the contested regulation, the Commission did not explain how the non-injurious price was actually calculated. In their submission, however, that information ought to have been provided to them in the context of the anti-circumvention procedure.
114 First of all, the applicants observe that the non-injurious price was not indicated either in Implementing Regulation 2015/2384 or in Implementing Regulation 2017/721.
115 The applicants further claim that the Commission presented the non-injurious price in ranges. They add that, by using the method for calculating that price applied in the complaint, they do not obtain the same results as the Commission, since those results even show a considerable deviation in a context of very price-sensitive products. In that context, they state that they do not dispute the accuracy of those ranges, but complain that they cannot be checked.
116 Next, the applicants submit that they do not know whether the non-injurious price calculated by the Commission concerns the products exported by them during the reporting period of the anti-circumvention investigation or all product types exported during the previous anti-circumvention investigation.
117 Lastly, the applicants observe that, in their observations on the general disclosure document of 24 June 2021, they specifically requested the Commission to provide them with additional details on how the non-injurious price was calculated. Recital 88 of the contested regulation does not provide sufficient information in that regard.
118 The Commission disputes the applicants’ arguments.
119 In the present case, it is apparent from recital 85 of the contested regulation that the Commission took into consideration ‘the average non-injurious price as established in the previous expiry review’.
120 In recital 88 of the contested regulation, it is stated that ‘the non-injurious price level was provided to the Dingsheng Group in the specific disclosure of 24 June 2021, and presented in ranges’, that ‘from the information provided in the specific disclosure, it could also easily be determined that the target profit used was 6%’, that ‘the information provided was therefore considered sufficient to verify the accuracy and adequacy of the Commission’s calculations’ and that ‘in addition, it should be noted that the one cooperating company in the review investigation is also part of the Dingsheng Group, and the Group was thus provided with more details at that point in time’.
121 In the first place, first of all, in accordance with the case-law cited in paragraphs 108 and 110 above, for the purposes of its obligation to state reasons, the Commission may not rely on information which is not contained in the contested regulation or which was not communicated to the applicants during the administrative procedure of the anti-circumvention investigation that led to the adoption of the contested regulation. Consequently, information allegedly communicated in previous and separate proceedings cannot be taken into account.
122 In addition, the non-injurious price established in the context of Implementing Regulation 2015/2384 is not readily apparent either from that act or from the information provided to the applicants during the administrative procedure.
123 Next, during the administrative procedure, the Commission did not explain the methodology it had applied in order to calculate the non-injurious price determined for the purposes of the anti-circumvention investigation and presented in ranges. Nor do those explanations appear in the contested regulation.
124 Thus, in their observations on the general disclosure document of 24 June 2021, the applicants specifically requested the Commission to provide them with additional details on how the non-injurious price was calculated. However, in recital 88 of the contested regulation, the Commission merely indicated that the target profit used was 6%.
125 In accordance with the case-law cited in paragraph 109 above, in the light of the request for additional information put forward by the applicants during the administrative procedure, the Commission was all the more required to state reasons for its decision in such a way that they were in a position to understand the calculations made. The information provided by the Commission fails to satisfy that requirement, however.
126 Moreover, in the complaint, the non-injurious price was determined on the basis of data provided in Implementing Regulation 2015/2384. However, the ranges provided by the Commission in the anti-circumvention proceeding differ considerably from the non-injurious price calculated in the complaint. In view of the applicants’ request for information during the administrative procedure, the Commission should have provided greater clarification for its approach. Yet in that context, the Commission merely maintains that it is not required to explain the difference between the calculations resulting from the complaint and its own calculations and that such a discrepancy is a challenge on the substance.
127 Lastly, as regards the Commission’s duty of confidentiality, it should be borne in mind that, according to the case-law, a failure to state reasons cannot be justified by the obligation to respect business secrets, which cannot be given so wide an interpretation that the obligation to state reasons is deprived of its essential content (see, to that effect, judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 48; see also, by analogy, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142).
128 Moreover, the Commission does not explain how disclosure of the non-injurious price would have undermined its duty of confidentiality. That is all the more so since it maintains that the level of that price was the same as that which had been established in the previous expiry review. Moreover, in the complaint, that price was determined on the basis of the unit cost of production set out in Table 8 of Implementing Regulation 2015/2384 and a target profit. That information is not confidential, however. The Commission’s arguments in that regard must therefore be rejected.
129 In the light of all the foregoing, the Court finds that the Commission provided an inadequate statement of reasons as regards the calculation of the non-injurious price.
130 However, in the second place, it must be noted that recitals 85 and 88 of the contested regulation form part of the analysis relating to the undermining of the remedial effects of the anti-dumping duty. As has been stated in paragraph 74 above, it is sufficient for such remedial effects to be established alternatively, either in terms of the prices of like products or in terms of the quantities of such products.
131 The infringement of the obligation to state reasons found in paragraph 129 above relates only to the remedial effects of the anti-dumping duty in terms of the prices of like products.
132 In that regard, it should be observed that, in recital 84 of the contested regulation, read in conjunction with recital 86 thereof, the Commission explained that, due to the considerable increase in imports of jumbo rolls from Thailand during the reporting period, the condition relating to the remedial effects of the anti-dumping duty in terms of quantities of like products was met.
133 Since the establishment of the remedial effects of the anti-dumping duty in terms of quantities of like products is sufficient to establish the undermining of those remedial effects and is the subject of an adequate statement of reasons in the contested regulation, the infringement of the obligation to state reasons found in paragraph 129 above cannot lead to the annulment of that regulation.
134 Consequently, this part of the plea must be rejected as ineffective.
Second part: the adjustments to the LME price
135 The applicants claim that the failure to state reasons concerning the adjustments to the LME price has an impact on the verification of the accuracy of the Commission’s calculations concerning both the non-injurious price and the dumping margin.
136 In that regard, first of all, the applicants observe that, in the contested regulation, the Commission merely stated that the data used had been provided by a financial IT company without giving them access to that paying database. They also complain that, without any justification, the Commission used that database as the sole source of the LME ‘trend’.
137 Next, the applicants claim that they do not know whether the adjustment made by the Commission reflects only the LME price itself or also includes the ‘metal premium’, which is the surcharge paid by EU producers to aluminium smelters or traders.
138 Lastly, the calculations made by the applicants, based on other reliable and publicly available sources, did not produce results that could be reconciled with the information provided by the Commission. The LME price is a single indicator communicated to the various distributors by the LME itself and, therefore, the corresponding adjustment should not vary according to the source.
139 The Commission disputes the applicants’ arguments.
140 In that regard, it should be noted that, in recital 90 of the contested regulation, it is stated that the ‘normal values established during the last expiry review (for the original like product) and anti-circumvention investigation (for the slightly modified product) [were] duly adjusted to [LME] fluctuations’.
141 As is apparent from recital 91 of the contested regulation, the Dingsheng Group claimed that ‘the LME adjustment was incorrect’. In its view, ‘the upward adjustment should have been a downward adjustment, as the LME price experienced a decreasing trend between the review investigation and the reporting period’.
142 In recital 92 of the contested regulation, the Commission replied that ‘the calculations were based on the normal values previously established for the like product. This includes the LME values that were used at the time of those investigations’. It added ‘using the values established in the previous investigations and comparing these to the LME data from the same data source as originally used (Bloomberg) for the reporting period, i.e. applying the same methodology as in the previous investigations, showed that the upward adjustment done by the Commission was accurate’.
143 It follows that the contested regulation provides sufficient information as to the method used by the Commission for the purpose of adjusting the LME price.
144 Moreover, since the Commission justified the use of the database in question, in particular by its initial use (see recital 92 of the contested regulation), contrary to what the applicants maintain, it was not required to state expressly in the contested regulation the reasons why it had decided not to use other sources of information.
145 Moreover, in stating that the LME price is a single indicator communicated to the various distributors by the LME itself and that, therefore, the corresponding adjustment should not vary according to the source, the applicants are arguing, in essence, that the lack of access to the database used by the Commission should not have any implications for understanding the calculations made by it. Accordingly, their arguments resemble challenges on the substance linked to an alleged incorrect adjustment of the LME price, including the applicants’ allegedly irreconcilable calculations with those of the Commission. It should be borne in mind that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 343, and of 30 April 2015, VTZ and Others v Council, T‑432/12, not published, EU:T:2015:248, paragraph 201).
146 Moreover, it is apparent from the applicants’ observations on the general disclosure document of 24 June 2021 that they did not request access to the information relating to the adjustment of the LME price used by the Commission, but merely challenged the Commission’s calculations. The fact that the applicants were able to challenge those adjustments and calculations shows that they were in a position to understand them and to have sufficient knowledge of the underlying details.
147 Lastly, since the ‘metal premium’ does not appear anywhere in the contested regulation, the applicants may not rely on a possible ambiguity in that regard in terms of its potential inclusion in the adjustment of the LME price. Moreover, as stated by the Commission, Implementing Regulation 2017/271 does not refer to it, whereas Implementing Regulation 2015/2384 addresses that concept solely in relation to harm suffered.
148 In the light of the foregoing, the present part of the plea must be rejected, as must, accordingly, the present plea in its entirety.
149 In light of all the foregoing, the appeal is dismissed.
Costs
150 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.
151 Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Hangzhou Dingsheng Industrial Group Co., Ltd, Dingheng New Materials Co., Ltd and Thai Ding Li New Materials Co., Ltd to bear their own costs and to pay those incurred by the European Commission.
da Silva Passos | Gervasoni | Reine |
Delivered in open court in Luxembourg on 21 June 2023.
V. Di Bucci | | M. van der Woude |