Appeal brought on 28 December 2020 by Zhejiang Jiuli Hi-Tech Metals Co. Ltd against the judgment of the General Court (Sixth Chamber) delivered on 15 October 2020 in Case T-307/18, Zhejiang Jiuli Hi-Tech Metals v Commission

(Case C-718/20 P)

Language of the case: English

Parties

Appellant: Zhejiang Jiuli Hi-Tech Metals Co. Ltd (represented by: K. Adamantopoulos, dikigoros, P. Billiet, advocaat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

set aside the contested judgment in its entirety;

grant the form of order sought by the appellant in its action before the General Court and annul Commission Implementing Regulation (EU) No 2018/330¹ , in so far as it relates to the appellant, pursuant to Article 61 of the Statute of the Court of Justice;

order the Defendant to pay the appellant's costs of this appeal and those of the proceedings before the General Court in Case T-307/18.

In the alternative, the appellant respectfully requests the Court of Justice to:

refer the case to the General Court for it to rule on any of the appellant’s pleas, as justified by the state of procedure; and

reserve the costs.

Pleas in law and main arguments

According to the first plea, the General Court erred in law in concluding that the Commission had offered disclosure of all essential facts and considerations in good time to the appellants in the present case. Had the Commission complied with its duties under Article 20(2) and (4) of Regulation (EU) 2016/1036² (“Basic Regulation”), the appellant would have submitted meaningful comments to the Commission and the resultant dumping determination would have been beneficial to the appellant. The General Court also distorted the facts when it held that the normal value for the appellant’s casing and drilling SSSPT (seamless pipes and tubes of stainless steel) category was established by reference to product control numbers reported by the Indian producer.

According to the second plea, the contested judgment is vitiated by an error in law in considering that the legality of EU acts adopted pursuant to Article 2(7) of the Basic Regulation may not be reviewed in light of the Protocol on the Accession of the People’s Republic of China to the WTO. Alternatively, the contested judgment is vitiated by an error in law by failing to recognise that Article 2(7) of the Basic Regulation is an exception from Articles 2(1) to (6) of that regulation that may specifically only be applied to China’s imports into the EU by virtue of China’s WTO Accession Protocol provisions 15(1)(d) and for as long as these provisions are in force. The use by the Commission of India as an analogue country in the appellant’s case was erroneous under both EU and WTO law. This approach resulted in a finding by the Commission of a very high dumping margin for the appellant where there would have been none, had the Commission instead applied the provisions of Articles 2(1) to (6) of the Basic Regulation to the appellant. In addition, the General Court did not deal at all with the issue of inaccurate information provided to the Commission by the Indian producer in paragraph 154 of the contested judgment and, as a result, in subsequent parts thereof, although it had properly set out this argument of the appellant in paragraph 150 of the contested judgment.

According to the third plea, the General Court’s findings are vitiated with errors in the application of Articles 2(10) and (11) as well as 11(9) of the Basic Regulation, which set out the obligation of EU Institutions to ensure, in the case of the appellant, a fair comparison between normal value and the appellant’s export price.

According to the fourth plea, the General Court findings are vitiated by errors in law and distort the facts. The methodology adopted by the Commission for the determination of the coefficients applied to the normal value of the appellant’s “C” type SSSPTs; as well as the determination of the normal value of the appellant’s “casing and drilling” SSSPTs was erroneous and did not guarantee a fair normal value for the appellant under Article 2 of the Basic Regulation, thus resulting in greatly inflated dumping margins for the appellant. These General Court findings also completely disregard the WTO Appellate Body jurisprudence in EC Fasteners.

According to the fifth plea, the General Court erred in law by including in its findings on the impact of the price undercutting of the appellant’s SSSPTs on the EU, the prices of the appellant’s SSSPTs used in inward processing customs procedures.

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¹ Commission Implementing Regulation (EU) 2018/330 of 5 March 2018 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of stainless steel originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2018, L 63, p. 15).

² Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on the protection against dumped imports from countries not members of the EU (OJ 2016, L 176, p. 21).