JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
24 May 2012 (*)
(Subsidies – Imports of certain polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates – Definitive countervailing duty and definite collection of provisional duty – Articles 11(8), 15(1) and 30(5) of Regulation (EC) No 597/2009 – Principle of sound administration)
In Case T‑555/10,
JBF RAK LLC, established in Ras Al Khaimah (United Arab Emirates), represented by B. Servais, lawyer,
applicant,
v
Council of the European Union, represented by B. Driessen, acting as Agent, G. Berrisch, lawyer, and N. Chesaites, Barrister,
defendant,
supported by
European Commission, represented by H. van Vliet, M. França and G. Luengo, acting as Agents,
intervener,
APPLICATION for annulment of Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitely the provisional duty imposed on imports of certain polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (OJ 2010 L 254, p. 10),
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 20 January 2012,
gives the following
Judgment
Background to the dispute
1 The applicant, JBF RAK LLC, is a company incorporated under the law of the United Arab Emirates. It specialises in the production of bottle‑grade polyester (‘PET’) chips and PET films.
2 On 3 September 2009, following a complaint lodged by the Polyethylene Terephthalate Committee of Plastics Europe, the Commission of the European Communities announced, pursuant to Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93, the ‘basic regulation’), by a notice published in the Official Journal of the European Union (OJ 2009 C 208, p. 7), the initiation of an anti-subsidy proceeding concerning imports of certain PET originating in, inter alia, the United Arab Emirates.
3 The Commission provided the applicant and the Government of the United Arab Emirates (or ‘UAE’) with anti-subsidy questionnaires. The questionnaire addressed to the applicant related to (i) the scheme under Federal Law No 1 of 1979, which allows the duty-free import of raw materials, and (ii) the Free Trade Zone Regime, which allows the duty‑free import of capital goods. The Commission also asked the applicant to provide it with a list of its raw material purchases for the product concerned during the period from 1 July 2008 to 30 June 2009 (‘the investigation period’ or ‘IP’).
4 On 20 October 2009, the applicant sent the Commission its responses to the questionnaire.
5 On 26 and 27 January 2010, the Commission carried out a verification visit at the applicant’s premises.
6 On 31 May 2010, the Commission adopted Regulation (EU) No 473/2010 imposing a provisional countervailing duty on imports of certain polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (OJ 2010 L 134, p. 25, ‘the provisional regulation’). The countervailing duty for imports of the goods concerned originating in the United Arab Emirates was EUR 42.34 per tonne.
7 On 1 June 2010, the Commission sent the applicant the provisional disclosure provided for in Article 30(1) of the basic regulation, setting out the factual elements and the essential considerations on the basis of which it adopted the provisional countervailing measures on imports of PET. The applicant was invited to submit its comments on the disclosure by 1 July 2010 at the latest.
8 On 1 July 2010, the applicant submitted written comments on the provisional countervailing measures.
9 On 23 July 2010, the applicant made oral observations at a hearing held by the Commission.
10 On 26 July 2010, the Commission sent the final disclosure document to the applicant, pursuant to Article 30(2) of the basic regulation.
11 On 5 August 2010, the applicant submitted its comments on the final disclosure document.
12 On 27 September 2010, the Council of the European Union adopted Implementing Regulation (EU) No 857/2010 imposing a definitive countervailing duty and collecting definitely the provisional duty imposed on imports of certain polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (OJ 2010 L 254, p. 10, ‘the contested regulation’). The contested regulation imposes a definitive countervailing duty of EUR 42.34 per tonne on imports of the products concerned originating in the United Arab Emirates.
Procedure and forms of order sought
13 By application lodged at the Registry of the General Court on 3 December 2010, the applicant brought the present action.
14 By document lodged at the Court Registry on 31 January 2011, the Commission sought leave to intervene in the present case in support of the form of order sought by the Council.
15 By order of 15 March 2011, the President of the Seventh Chamber of the Court granted the Commission leave to intervene.
16 On 18 April 2011, the Commission lodged a statement in intervention.
17 The applicant claims that the Court should:
– annul the contested regulation;
– order the Council to pay the costs.
18 The Council and the Commission contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
19 The applicant submits that there are errors in the calculation of countervailable subsidy in that the Council failed to take into account the fact that a significant part of the raw materials which the applicant purchased was consigned from Saudi Arabia – a member state of the Gulf Cooperation Council (‘GCC’) and of the customs union between GCC member states (the ‘GCC customs union’) – and not therefore subject to any customs duties when imported into the United Arab Emirates and that, as a consequence, no exemption of import duties occurred.
20 In support of its action, the applicant raises four pleas in law, alleging, respectively, breach of Articles 15(1), 30(5) and 11(8) of the basic regulation, and infringement of the principle of sound administration.
21 First of all, it must be noted that recital 105 in the preamble to the contested regulation states that the applicant submitted that there were errors in the calculation of the subsidy margin and that it argued in that regard that it ‘realised following definitive disclosure that procurements of raw material made from Saudi Arabia bear no customs duty because UAE and Saudi Arabia form part of the customs union of the Gulf Cooperation Council’. Recital 105 states that the applicant ‘provided a set of documentation related to its claims’. The recital also states that, ‘[i]n this respect it is noted that these representations form part of a totally new set of information that should already have been presented in the questionnaire reply or in the verification visit at the latest so that the Commission would have been able to verify the veracity of these claims’. The recital continues, ‘[t]hus the data provided cannot be verified at this late stage of the investigation’ and ‘[m]oreover, there is also no conclusive evidence to corroborate these claims’. In addition, recital 105 states that, ‘[f]urthermore it was argued that the benefit should be calculated on the basis of raw materials consumed during the IP and not on the basis of raw materials purchased’ and that, ‘[i]n this respect it is noted that the split between raw materials consumed and purchased is irrelevant as the amount countervailed is the total amount attributable to the IP’.
The first plea: breach of Article 15(1) of the basic regulation
22 In the first plea, the applicant submits that the countervailing duty exceeds the amount of countervailable subsidy. It submits that the Council had the necessary information regarding the existence of the GCC customs union to which the United Arab Emirates belongs and that it failed to take into consideration the impact of such a customs union on the amount of countervailable subsidy. The applicant submits that it made a number of purchases of raw materials from an undertaking (‘undertaking S’) established in Saudi Arabia, a member state of the GCC customs union, and that those purchases were therefore exempt from customs duties.
23 Under Article 15(1) of the basic regulation, the amount of the countervailing duty must not exceed the amount of countervailable subsidies, but should be less than the total amount of countervailable subsidies if such lesser duty would be adequate to remove the injury to the Community industry.
24 First of all, it must be noted that the parties’ arguments relate solely to (i) whether, in view of the documents and information submitted by the applicant, the Commission and the Council ought to have concluded that the applicant’s exemption from customs duties for the purchase of raw materials from undertaking S established in Saudi Arabia had been granted by virtue of the GCC customs union, and, accordingly, (ii) whether those institutions had the necessary information to conclude that the amounts of duty applicable to the purchase of those raw materials ought not to have been taken into account when calculating the amount of subsidy.
25 In order to determine whether, as the applicant claims, the evidence it submitted shows that its raw material purchases from the undertaking S were exempt from customs duty by virtue of the GCC customs union, the Court must ascertain, first of all, the information that was requested by the Commission and the comments and evidence submitted by the applicant at the various stages of the administrative procedure, before then examining whether the Commission and the Council erred in their assessment of those comments and evidence.
26 In the first place, the Court must ascertain which information was requested by the Commission and which comments and evidence were submitted by the applicant.
27 First, the Council is wrong to argue that, in the course of its replies to the Commission’s questionnaire, the applicant ought to have submitted to the Commission the list of raw material purchases.
28 It should be noted that all the questions concerning the purchases of raw materials exempt from customs duties and the request for the submission of the list of purchases had been set out in the section of the questionnaire to the applicant relating to the Ras Al Khaimah Free Trade Zone. The applicant stated that it no longer formed part of that free trade zone during the investigation period, which the Council does not dispute. The applicant cannot therefore be criticised for responding to the questions and the request referred to with the words ‘[N]ot applicable’.
29 The Council’s assertion that the Commission believed that the applicant had formed part of the free trade zone in question during the investigation period and that it was for that reason that the questions on the raw materials had been asked in the section of the questionnaire to the applicant concerning that zone does not affect that finding.
30 Similarly, the Council seeks unsuccessfully to argue that, in any event, the applicant was required to submit to the Commission the list of its raw material purchases on the ground that it was clear from the notice of initiation of the anti‑dumping proceeding and another part of the questionnaire to the applicant that it had been invited to submit full details of any subsidy programme that had not been mentioned in the questionnaire. The question referred to by the Council related only to the existence of subsidies within the meaning of the basic regulation and cannot be interpreted as seeking to ascertain whether purchases of raw materials were exempt from customs duties by virtue of the existence of a customs union.
31 It must be noted that, in recital 105 of the contested regulation, it is alleged that the applicant failed to present in the questionnaire reply the set of information concerning the raw materials from Saudi Arabia which would have enabled the Commission to verify the veracity of the applicant’s claims. In so doing, the contested regulation is mistaken on that point, because it effectively alleges that the applicant failed to submit information and evidence which had not in fact been requested from it in the questionnaire.
32 However, that illegality is not in itself sufficient to entail the annulment of the contested regulation. The Council also complains that the applicant failed to submit the information ‘in the verification visit at the latest’ and also states that there was no conclusive evidence submitted by the applicant that corroborated its claims.
33 Second, the Court must therefore examine which information was requested by the Commission officials during the verification visit and which information and evidence was submitted to them.
34 It must be recalled that the Commission officials carried out a verification visit at the applicant’s premises on 26 and 27 January 2010. It is not disputed that those officials requested the applicant to submit to them the list of raw material purchases and specify the duty applicable and the duty paid for each of those purchases.
35 In order to respond to that request, the applicant submitted a table comprising 17 columns setting out the raw material purchases. It must be noted that, according to the information in that table, customs duty was payable for the purchase of most of the raw materials. The amount in the sixteenth column (Duty applicable) is equal to 5% of that in the tenth column (Invoice value in your accounting currency). That percentage corresponds to the customs duty which the United Arab Emirates applies to imports.
36 More specifically, the column relating to the duty applicable shows, in particular, that a 5% customs duty is payable on the import of raw materials from undertaking S, established in Saudi Arabia, that is, a member state of the GCC customs union.
37 The applicant submits in its pleadings that a member of its staff had incorrectly shown that a customs duty was applicable to raw materials consigned from undertaking S, but that that error was only discovered when the applicant received the Commission’s final disclosure document.
38 Even if substantiated, an error in the table setting out the list of raw material purchases is not attributable to the Commission. That is all the more so since the information relating to duty applicable and duty paid had been specifically requested by the Commission officials. Although the table containing the list of raw material purchases – which the applicant submitted to the Commission officials during the verification visit – is identical with regard to fifteen columns of the table already provided to the Commission in the parallel anti‑dumping investigation, it is specifically supplemented by two additional columns relating to duty applicable and duty paid.
39 It cannot validly be argued that, since certain raw materials set out in the list were consigned from an undertaking located in a member state of the GCC customs union, the Commission ought to have known that the applicant had made an error when providing the customs duties for those raw materials. Such an approach would mean that the Commission was supposed to be aware of the rules governing the operation of the GCC customs union and the fact that, pursuant to those rules, the raw materials of certain undertakings were imported duty free.
40 Third, it must be noted that, in the provisional disclosure sent to the applicant on 1 June 2010, the Commission set out, pursuant to Article 30(1) of the basic regulation, the factual elements and essential considerations on the basis of which it had adopted the provisional countervailing measures on PET imports. The applicant does not dispute that that provisional disclosure included a calculation table showing that the Commission had determined the amount of countervailable subsidy by having regard to the information provided to it by the applicant, including that relating to the duty applicable and the duty paid in relation to the raw materials consigned from undertaking S.
41 It must be stated that, in its comments of 1 July 2010 on the provisional disclosure, the applicant did not object to the detailed calculation of the amount of subsidy. In so doing, the applicant did not draw the Commission’s attention to the alleged error or its effect on the amount of subsidy, even though it had one month to do so.
42 Fourth, the applicant made oral observations on the provisional disclosure at a hearing at the Commission’s premises on 23 July 2010. No comment was made on the Commission’s alleged calculation error in taking into account that a customs duty was applicable to the raw materials consigned from undertaking S.
43 Fifth, on 26 July 2010, the Commission sent the applicant the final disclosure document, pursuant to Article 30(2) of the basic regulation, in which it informed the applicant of the factual elements and the essential considerations on the basis of which it was intended to recommend the imposition of definitive measures on PET imports.
44 In a letter of 5 August 2010, the applicant submitted its comments on the final disclosure document.
45 It must be noted that it was not until that stage of the administrative procedure that the applicant disputed the amount of the subsidy, arguing that the raw material purchases from undertaking S were exempt from customs duty by virtue of the GCC customs union and providing documents to demonstrate the truth of its assertions.
46 In that connection, the applicant’s assertion that the Commission ought already to have known that the GCC customs union had an effect on the calculation of the amount of subsidy, on the ground that that union had been referred to in the applicant’s replies to the questionnaires, must be rejected. The GCC was referred to only in passing in the applicant’s replies. In any event, that single reference to the GCC did not enable the Commission to assume that the raw materials purchased from undertaking S were imported duty free.
47 Consequently, the applicant is wrong to criticise the Council for finding, in the contested regulation, that the comments of 5 August 2010 formed part of a totally new set of information that it should have presented during the verification visit, so that the Commission would have been able to verify the veracity of the applicant’s claims.
48 In the second place, in order to determine whether the Commission and the Council incorrectly assessed the comments and evidence and, in particular, those submitted in response to the final disclosure document, the Court must have regard to the circumstances that arose during the administrative procedure and to the comments made and evidence submitted during it, as set out in paragraphs 27 to 46 above.
49 First, in order to analyse that question the rules governing the operation of the GCC customs union must be examined in order to identify the documents which had to accompany the goods so that they might move freely within that union.
50 It is clear from the documents submitted by the parties that, since 1 January 2003, the ‘national products’ of a GCC member state have been able to move freely throughout the GCC customs union provided that they are accompanied, inter alia, by their local invoices. In that connection, the applicant contradicts itself by stating that the mere fact that it purchased raw materials from an undertaking located in a second GCC member state was sufficient to allow those goods to enter the United Arab Emirates duty free, on the one hand, while acknowledging that local invoices and statistical declarations were necessary, on the other.
51 It can be seen from the document entitled ‘Process of the Customs Union of the Cooperation Council for the Arab States of the Gulf 2002‑2010’ submitted by the Council that, during the transitional period between 2003 and 2010, there were two methods of proving to the United Arab Emirates customs authorities that goods imported into the country were in free circulation with the GCC customs union. First, for goods originating from a GCC member state, it was necessary to produce the local invoice and to show, as proof of origin and of the manufacturer’s name, that that origin and name were affixed in a non‑removable manner. Where it was impossible to affix the manufacturer’s name on the goods because of their nature, in addition to the local invoice, the goods had to be accompanied by a certificate of origin. Second, for non-GCC originating goods, the goods had to be accompanied by the single customs declaration demonstrating the accomplishment of customs formalities.
52 In that connection, the applicant disputes to no avail the fact that the raw materials had to be accompanied by a certificate of origin. In the context of a written question from the Court, the applicant was invited to submit its observations on the document provided by the Council referred to in paragraph 51 above, in particular on the application of the special scheme set out in that document. However, the applicant simply answered that, to the best of its knowledge, there was no special scheme regarding the free circulation of raw materials within the GCC customs union during the transitional period 2003-2010. It must be found that the applicant has not therefore seriously challenged the fact that the special scheme in the document provided by the Council was applicable throughout the investigation period.
53 In the present case, it must be noted that the raw materials (mono‑ethylene glycol (MEG) and di-ethylene glycol (DEG)) are in granular form and that the origin and the manufacturer’s name cannot be affixed to them, by way of proof, in a non‑removable manner. It must therefore be concluded that those raw materials had to be accompanied by a certificate of origin, in addition to the local invoice, in order to prove that they were in free circulation within the GCC customs union. In that connection, the fact that the applicant itself acknowledges that it deposited certificates of origin at the Saudi/UAE border for 10 MEG purchases and all the DEG purchases from undertaking S serves to confirm that those certificates have to be provided. Its reply that there was nothing to prevent it from producing those certificates of origin is not convincing.
54 Second, the Court must examine whether the information and evidence submitted by the applicant in the context of its comments of 5 August 2010 on the final disclosure document were taken into account and examined by the Commission and the Council and whether the latter made an error of assessment in finding that no conclusive evidence corroborated the applicant’s claims.
55 First of all, it must be stated that the applicant has not produced photocopies of the certificates of origin for 9 purchases of MEG or for any of the purchases of DEG from undertaking S.
56 In that connection, the argument that the certificates of origin in question were deposited at the Saudi/UAE border and were therefore no longer available cannot succeed. The applicant unsuccessfully seeks to rely on Case T‑80/07 Starway v Council [2000] ECR II‑3099, which states that the Community institutions cannot require an undertaking to adduce evidence of a nature that it was impossible for it to provide. In the case giving rise to that judgment, the undertaking in question had submitted a range of additional evidence, which had been rejected by the Council automatically without even examining it. In the present case, the applicant has not provided any additional evidence in order to prove that the 9 MEG purchases and all the DEG purchases from undertaking S were exempt from customs duty by virtue of the GCC customs union.
57 Next, none of the certificates of origin submitted is an original. In addition, as the Council notes, two photocopies of certificates of origin submitted by the applicant with regard to the MEG purchases are illegible. Only the invoice number may be read. The applicant argues to no avail that it was possible to establish a link between the two certificates and the corresponding invoices on the basis of the invoice number indicated on the certificates. Since the applicant did not submit the originals or photocopies of the corresponding invoices, the Commission, and all the more so the Council, were unable to compare them with the evidence submitted at that late stage of the investigation.
58 In addition, the applicant cannot validly maintain that the Commission officials had ample opportunities during the verification visit to check the invoices for the various transactions with undertaking S and that it was not therefore necessary to provide photocopies. The verification carried out by the officials during the verification visit had been guided by the information supplied to them by the applicant prior to and during the verification visit. If that information had related to the exemptions from customs duty by virtue of the GCC customs union, the checks carried out by the officials would have been organised differently. Since, at the very late stage of the administrative procedure at which the information was provided, the Commission could not have been required to carry out a new verification visit, it was for the applicant to provide the Commission with the various invoices to enable it to compare them with the new information it had received.
59 Lastly, the applicant does not dispute that there are differences between the photocopies of the certificates of origin, provided in support of its assertions concerning the transactions with undertaking S, and the information in the list of raw material purchases handed over to the Commission at the verification visit. In particular, for 33 of the 40 purchases of MEG from undertaking S for which certificates of origin were provided, the quantity or value indicated on the certificate of origin differs from that reported in the applicant’s list of raw material purchases.
60 The applicant submits that the Commission wrongly compared the MEG quantity and value reported on the certificate of origin and the quantity and value reported in the list of raw material purchases remitted during the verification visit. As regards the MEG quantity, the applicant states that the quantity reported in the list of raw material purchases is based on the weighing made by the transport company when unloading the goods from the ship and corresponds to the quantity indicated in one of the invoices. As regards the MEG value, the applicant attributes the difference in question to the fact that the MEG value mentioned in the list of raw material purchases corresponds to the final value paid by it to undertaking S after the price adjustment issued by that undertaking at the end of the quarter and subsequent to the commercial invoice.
61 By that submission, the applicant confirms that the quantity or value stated on the certificate of origin differed from those reported in the list of raw material purchases. Consequently, the applicant would have been required not only to provide, in annex to its comments of 5 August 2010, the original certificates of origin, other documents proving the origin of the goods for which it did not possess such certificates, and purchase invoices for the goods, but also explain, in those comments, why the quantity stated on the certificates of origin differed from that reported on the invoices, in order to demonstrate that those certificates did indeed relate to the purchases of raw materials from undertaking S.
62 In that connection, the Court must reject the applicant’s argument according to which, in the context of the parallel antidumping proceeding, other Commission officials requested an explanation for the difference between the MEG value reported in the list of raw material purchases and that recorded on the certificate of origin. The purpose of the verification visit was not to check claims that had not then been raised in the anti-subsidy proceeding.
63 Admittedly, at the verification of 26 and 27 January 2010, the Commission officials examined one of the transactions for raw material purchases from undertaking S. They thereby became aware of an invoice relating to that transaction and a copy of the certificate of origin annexed thereto.
64 However, the Council correctly notes that the verification focussed only on the general information regarding that transaction (quantity, purchase price etc.). The question of whether the raw materials purchased from undertaking S in the context of that transaction had been imported duty free by virtue of the GCC customs union was not raised until after the final disclosure. The checks carried out by the Commission officials were not therefore directed at that issue and there was no reason for that to be otherwise. In addition, as stated in paragraph 61 above, it must be stated that the quantity indicated on the certificate of origin differed from that reported on the invoice and that, in its comments of 5 August 2010, the applicant did not explain the reason for that discrepancy between those two documents. The fact that it annexed to those comments an English-language translation of the certificate in question has no bearing in that regard.
65 Consequently, given that originals of the new documents aimed at supporting the applicant’s new assertions had not been submitted, that there were contradictions between the information in the new documents and that reported in the documents already at the Commission’s disposal, that the new documents were submitted at a very late stage in the administrative procedure and that a number of documents were not submitted even in copy, the Commission and the Council were entitled to conclude, in the present case, without making an error of assessment, that the evidence did not show that the raw material purchased from undertaking S had been imported duty free.
66 It follows that the applicant has not shown that there were errors in the Council’s calculation of the amount of countervailable subsidy. Consequently, the first plea in law, alleging breach of Article 15(1) of the basic regulation, must be rejected.
The second plea: breach of Article 30(5) of the basic regulation
67 It should be recalled at the outset that Article 30 of the basic regulation is concerned with the disclosure which may be requested by companies concerned by an investigation procedure which may result in the adoption of an anti-subsidy regulation.
68 Article 30(1) of the basic regulation provides that companies ‘may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed’. It states that ‘[r]equests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and [that] the disclosure shall be made in writing as soon as possible thereafter’.
69 Under Article 30(5) of the basic regulation, the companies concerned may make representations. Article 30(5) provides that ‘[r]epresentations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter’.
70 Article 30(2) of the basic regulation also provides that those companies ‘may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures’.
71 The companies concerned may also make representations on the final disclosure pursuant to Article 30(5) of the basic regulation.
72 The applicant submits that the Commission infringed Article 30(5) of the basic regulation by failing to take into consideration the information submitted in the context of its comments of 5 August 2010. It submits that, in addition to the fact that that information was incorrectly categorised as new, Article 30 does not preclude, in any event, the submission of comments in response to the final disclosure different from those made in relation to the provisional disclosure.
73 That argument cannot be accepted.
74 In the present case, the applicant made written comments on two occasions. First, on 1 July 2010, it submitted comments on the provisional disclosure sent to it by the Commission on 1 June 2010. Second, in response to the final disclosure document sent to it on 26 July 2010, the applicant sent a letter of 5 August 2010 in which it made comments and to which it annexed evidence to substantiate them.
75 The Council and the Commission do not dispute that the comments on the final disclosure document and the evidence to substantiate them were submitted within the time-limit laid down by Article 30(5) of the basic regulation. Moreover, the contested regulation does not state that the comments and evidence were submitted too late or that they could not be taken into consideration for that reason.
76 Since the comments and evidence were submitted within the time-limits laid down by Article 30(5) of the basic regulation, the Court must examine whether the Commission and the Council fulfilled their obligation under Article 30 to take them into account.
77 First, it is apparent from the analysis of the first plea in law (see paragraphs 54 to 66 above), that the Commission and the Council examined the information and evidence submitted in the context of the comments of 5 August 2010. The applicant therefore incorrectly submits that they were disregarded on the ground that they had been submitted too late.
78 Second, the Court must reject the applicant’s argument in so far as it is to be construed as meaning that, by stating that ‘the data provided cannot be verified at this late stage of the investigation’, the Council did not actually take them into account and therefore infringed Article 30(5) of the basic regulation.
79 It is necessary to recall the stages of the administrative procedure and the circumstances that arose during each stage.
80 The first stages of that administrative procedure are (i) the investigation during which the companies concerned are requested to reply to the Commission’s questionnaire and (ii) the verification visit during which the Commission officials may request further details. In that regard, it must be noted that the basic regulation does not confer on the Commission investigating powers enabling it to compel companies in respect of whom a complaint has been filed to participate in an investigation or to produce 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 the parties to the questionnaire referred to in Article 11(2) of the basic regulation, and the subsequent on-the-spot verification which the Commission may carry out under Article 26 of that regulation, are essential to the operation of the anti‑dumping procedure (see, to that effect and by analogy, Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243, paragraph 65). It is therefore for the cooperating companies to be precise and accurate in the information and evidence they submit both in their replies to the written and oral questions and during the verification visit.
81 In the present case, as regards the verification stage, the applicant submitted precise factual information to the Commission officials, namely the duty applicable and the duty paid in respect of the raw materials purchased by the applicant. It is precisely on the basis of those facts that the Commission determined the amount of the countervailable subsidy in the provisional regulation.
82 It must be noted that the facts concerning the purchases of raw materials were called in question at the stage of the comments on the final disclosure document, namely at the end of the administrative procedure. The applicant did not argue, either in its written comments of 1 July 2010 in relation to the provisional disclosure or in its explanations at the hearing of 23 July 2010, that the raw materials consigned from undertaking S were purchased duty free by virtue of the GCC customs union.
83 It must also be noted that the information in the final disclosure document on which the applicant commented did not amount to new information notified to it for the first time in that document and that the Commission’s assessment set out therein had not been amended with regard to its assessment in the provisional disclosure and provisional regulation. Consequently, the applicant had already had the opportunity, at an earlier stage in the administrative procedure, to give its view on the position set out once again in the final disclosure document.
84 It was therefore at that late stage of the administrative procedure that the Commission examined the new comments and the new evidence aimed at supporting them. It found that a number of documents were missing, that the evidence submitted was not that of original documentation and that there were contradictions between the information in the new evidence and that in the documents already at its disposal.
85 In the light of the foregoing, it must be found that (i) the Commission fulfilled its duty to inform the applicant of the factual elements and the essential considerations on the basis of which it intended to recommend the imposition of definitive measures, (ii) the applicant could defend its interests effectively by submitting comments and evidence in respect of those facts and considerations, (iii) in that regard, the applicant could even call in question, at a very late stage of the administrative procedure, the content of the factual information which it had itself submitted, and (iv) the Commission carried out an examination of the evidence in order to determine whether it supported the new comments.
86 In addition, since the evidence was clearly insufficient, incomplete and contradictory and because of the very late stage of the administrative procedure at which it was submitted, the Commission was not in a position, in the context of its examination, to carry out a new verification visit or, more generally, make a new request for information.
87 Consequently, the Commission and the Council fulfilled the obligation under Article 30(5) of the basic regulation by taking into account the information and evidence submitted by the applicant after the final disclosure document and examining them in accordance with the information at their disposal at that very late stage of the administrative procedure.
88 None of the arguments advanced by the applicant can cast doubt on those findings.
89 First, the applicant’s argument that the Council had all the necessary information to conclude that the raw materials consigned from undertaking S were not subject to customs duties and that, therefore, its comments did not form part of a totally new set of information, must be rejected.
90 As is apparent from the analysis of the first plea in law, the applicant’s comments on the raw materials consigned from undertaking S form part of a new set of information. It was not until the reply to the final disclosure document that the applicant argued that the raw materials purchased from undertaking S had been imported duty free. Similarly, it was not until the annex to those comments of 5 August 2010 that the applicant submitted a new table containing the list of raw material purchases from undertaking S and certificates of origin in relation to those raw materials.
91 Second, the Court must also reject the applicant’s argument that the Council misinterpreted Article 30(5) of the basic regulation by finding that only the applicant’s comments on the issues raised for the first time in the final disclosure document could be taken into account, not the comments on the issues raised in the provisional disclosure document and confirmed in the final disclosure document.
92 First, it is not apparent from recital 105 of the contested regulation that the Commission and the Council refused to take into account the totally new set of information submitted to the Commission but rather that, at that stage of the investigation, they took the view that they were unable to verify that information. Recital 105 also states that the evidence to corroborate the new set of information was not conclusive, which confirms that the Commission and the Council did in fact take it into account.
93 Second, it follows from the foregoing and, in particular, from paragraphs 65 and 84 above that the evidence submitted by the applicant was examined by the Commission and that it found that that evidence could not support the new comments.
94 Consequently, the second plea in law, alleging breach of Article 30(5) of the basic regulation, must be rejected.
Third plea: breach of Article 11(8) of the basic regulation
95 Article 11(8) of the basic regulation provides that the information which is supplied by interested parties and upon which findings are based is to be examined for accuracy as far as possible.
96 The Court must examine whether, as the applicant submits, the Commission rejected the documentation submitted on 5 August 2010 on the mere ground that it had not been provided before the verification visit and, therefore, whether the Commission failed to fulfil its obligation to examine the accuracy of that documentation ‘as far as possible’.
97 First, although, under Article 11(8) of the basic regulation, the information supplied by interested parties and upon which findings are based must be examined by the Commission as far as possible, except in the circumstances provided for in Article 28 of that regulation, that is to say, in cases of non‑cooperation, there is nothing to prevent it from verifying that information in the way it deems most appropriate and not solely by means of a visit. That interpretation is borne out by the fact that Article 26 of the basic regulation provides that verification visits must only be carried out where the Commission considers it appropriate (see, to that effect and by analogy, Case T‑299/05 Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II‑565, paragraph 209).
98 Second, it was not until after the final disclosure document, that is, at a very late stage of the investigation, that the information and evidence aimed at challenging the basis on which the amount of countervailable subsidy was calculated was submitted to the Commission.
99 In that connection – contrary to what the applicant claims – it is not apparent from the contested regulation that the information and evidence were rejected on the mere ground that they had been submitted after the verification visit. In recital 105 of the contested regulation, the Council in essence found that, given the nature of the comments and the fact that they were entirely new, it ought to have been possible to verify them at the latest during the verification visit. Since the verification visit had already taken place when those comments were submitted to the Commission, the Commission examined whether they were borne out by the documents which it already had at its disposal and by the new evidence annexed to those new comments. It concluded from them that that evidence was insufficient, incomplete and contradictory.
100 It was therefore by having regard to the information in its possession that the Commission checked the new data and evidence and that it concluded from them that ‘there is … no conclusive evidence to corroborate these claims’.
101 In reaching that conclusion, the Commission and the Council fulfilled the obligation under Article 11(8) of the basic regulation.
102 The arguments put forward by the applicant cannot cast doubt on that conclusion.
103 In the first place, the applicant submits to no avail that the Council contradicts itself by affirming, on the one hand, that the information does not need to be ‘verified’ but ‘examined’, and by rejecting, on the other, the evidence provided on 5 August 2010 because it allegedly cannot be verified.
104 First of all, it follows from the case-law cited in paragraph 97 above, that the obligation to examine information under Article 11(8) of the basic regulation does not automatically entail a verification visit within the meaning of Article 26 of the regulation.
105 Next, in the circumstances of the present case, it cannot be considered that the obligation under Article 11(8) of the basic regulation could only be fulfilled by carrying out a new verification visit.
106 Lastly, it was observed in paragraphs 99 and 100 above that the Commission and the Council did not dismiss the information and evidence submitted to them on 5 August 2010, but that they examined them as far as possible in order to ascertain whether they supported the new comments.
107 In the second place, the applicant submits that, during the verification visit, the Commission did not raise any questions as regards the GCC customs union in order to verify whether the purchases of raw materials were as a matter of law subject to import duties and that, therefore, it was all the more important for it to examine the information provided after the visit.
108 It is appropriate to point out that, during the verification visit and at the specific request of the Commission officials, the applicant submitted the list of raw material purchases which clearly showed that the purchases of raw materials from undertaking S were not duty free. The Commission officials had therefore no reason to raise the question of the geographical origin of the raw materials used by the applicant and even less so the consequences of the GCC customs union on the customs duties on imports of them.
109 Third, the argument according to which the verification visit lasted only two days instead of the three initially anticipated and that, during that period, the Commission officials could have been able to collect the necessary information concerning the GCC customs union is not relevant. In addition to the fact that, for the reasons set out above, the Commission officials cannot be criticised for not raising the question of the geographical origin of the raw materials used by the applicant, the applicant does not in any way indicate which documents would have warranted those officials staying an additional day, nor in what way they had failed to check sincerely and objectively the information submitted to them.
110 It follows from the foregoing considerations that the third plea in law, alleging breach of Article 11(8) of the basic regulation, must be rejected.
Fourth plea: infringement of the principle of sound administration
111 The applicant submits that the Council infringed the principle of sound administration by failing to draw reasonable conclusions from the fact that the United Arab Emirates is a member of the GCC customs union. The applicant submits that the Commission was aware of the fact that some of the imports were consigned from the Kingdom of Saudi Arabia and thus were not subject to import duties. The Commission should therefore have gathered information aimed at establishing the correct amount of countervailable subsidy.
112 According to the case-law, where the European Union institutions have a wide power of appraisal, respect for the rights guaranteed by the European Union 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 (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Shandong Reipu Biochemicals v Council, paragraph 80 above, paragraph 63; and judgment of 23 September 2009 in Case T‑296/06 Dongguan Nanzha Leco Stationery v Council, not published in the ECR, paragraph 58).
113 It is clear from the arguments in relation to the first three pleas in law that the institutions carried out the investigation diligently and impartially in order to assess carefully all the information submitted to them. It must be stated, first of all, that, even if it were indeed incorrect, that information was supplied by the applicant. Indeed, it was on the basis of information provided by it that the institutions determined the amount of countervailing duty. Next, it must be noted that the Commission analysed the information aimed at confirming that the initial information was incorrect and that the purchases of raw materials from undertaking S were duty free by virtue of the GCC customs union. The Commission demonstrated that that evidence was insufficient, incomplete and contradictory. Lastly, it must be recalled that the institutions analysed those documents in a context where the specific procedures governing the operation of the GCC customs union during its transitional period were not obvious.
114 Consequently, the fourth plea in law, alleging infringement of the principle of sound administration, must be rejected.
115 It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
116 Under Article 87(2) of the Rules of Procedure of the Court, 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 pay the costs, in accordance with the form of order sought by the Council.
117 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders JBF RAK LLC to bear its own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Dittrich | Wiszniewska-Białecka | Prek |
Delivered in open court in Luxembourg on 24 May 2012.
[Signatures]