JUDGMENT OF THE GENERAL COURT (First Chamber)
14 December 2022 (*)
(Dumping – Imports of solar glass originating in China – Article 2(8) to (10) and Articles 19 and 20 of Regulation (EC) No 1225/2009 (now Article 2(8) to (10) and Articles 19 and 20 of Regulation (EU) 2016/1036) – Right to access confidential documents – Manifest error of assessment – Rights of the defence)
In Case T‑586/14 RENV II,
Xinyi PV Products (Anhui) Holdings Ltd, established in Anhui (China), represented by Y. Melin and B. Vigneron, lawyers,
applicant,
v
European Commission, represented by L. Flynn and T. Maxian Rusche, acting as Agents,
defendant,
supported by
GMB Glasmanufaktur Brandenburg GmbH, established in Tschernitz (Germany), represented by R. MacLean, Solicitor,
intervener,
THE GENERAL COURT (First Chamber),
composed, at the time of deliberations, of H. Kanninen, President, M. Jaeger (Rapporteur) and N. Półtorak, Judges,
Registrar: E. Coulon,
having regard to the order of the President of the Court of Justice of 13 October 2016, Commission v Xinyi PV Products (Anhui) Holdings (C‑301/16 P, not published, EU:C:2016:796), by which GMB Glasmanufaktur Brandenburg was granted leave to intervene in support of the form of order sought by the Commission,
having regard to the judgment of the Court of Justice of 28 February 2018, Commission v Xinyi PV Products (Anhui) Holdings (C‑301/16 P, EU:C:2018:132), which set aside the judgment of 16 March 2016, Xinyi PV Products (Anhui) Holdings v Commission (T‑586/14, EU:T:2016:154), and referred the case back to the General Court,
having regard to the judgment of the Court of Justice of 2 December 2021, Commission and GMB Glasmanufaktur Brandenburg v Xinyi PV Products (Anhui) Holdings (C‑884/19 P and C‑888/19 P, EU:C:2021:973), by which the Court of Justice, inter alia, set aside the judgment of 24 September 2019, Xinyi PV Products (Anhui) Holdings v Commission (T‑586/14 RENV, EU:T:2019:668), rejected the applicant’s first plea in its entirety by exercising its powers under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union and referred the case back to the General Court for judgment on the applicant’s second to fourth pleas,
having regard to the applicant’s observations lodged at the Court Registry on 2 February and 25 March 2022,
having regard to the intervener’s observations lodged at the Court Registry on 2 February and 25 March 2022,
having regard to the Commission’s observations lodged at the Court Registry on 14 February and 14 March 2022,
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 its action under Article 263 TFEU, the applicant, Xinyi PV Products (Anhui) Holdings Ltd, seeks the annulment of Commission Implementing Regulation (EU) No 470/2014 of 13 May 2014 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of solar glass originating in the People’s Republic of China (OJ 2014 L 142, p. 1, corrigendum OJ 2014 L 253, p. 4; ‘the contested regulation’).
Background to the dispute
2 The applicant is a company established in the People’s Republic of China that manufactures and exports to the European Union solar glass covered by the contested regulation.
3 Its single shareholder is Xinyi Solar (Hong Kong) Ltd (‘XSolarHK’), a company established in Hong Kong (China) which is listed on the Hong Kong Stock Exchange.
4 The applicant manufactures the products at issue, negotiates sales conditions and terms of the final product with EU customers, places the production orders and organises and carries out the shipping to those customers. It is responsible, inter alia, for all the shipping documents, handles the export customs clearance, prepares sales documents and issues invoices to XSolarHK. That company issues a sales invoice to the EU customer for the contract price, receives the payment from that customer and, after having deducted a commission which, during the investigation, varied between 20% and 10%, transfers the remainder to the applicant.
5 During the course of the procedure which led to the adoption of the contested regulation, the applicant made an application on 21 May 2013 for the purpose of claiming Market Economy Treatment (‘MET’) under Article 2(7)(b) and (c) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22, ‘the basic regulation’) (now Article 2(7)(b) and (c) of 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)).
6 On 6 June 2013, the applicant lodged its replies to the Commission’s anti-dumping questionnaire.
7 On 21 June 2013, it replied to the Commission’s request for additional information.
8 The information provided by the applicant in the application form for MET and its replies to the Commission’s questionnaire were verified at the applicant’s Chinese headquarters between 21 and 26 June 2013.
9 At the end of June and in July 2013, the applicant produced additional information in agreement with the Commission and in accordance with the latter’s requests.
10 After corresponding with the applicant on various matters, the Commission informed it, by letter of 13 September 2013, of the final decision rejecting its application for MET.
11 On 26 November 2013, the Commission adopted Regulation (EU) No 1205/2013 imposing a provisional anti-dumping duty on imports of solar glass from the People’s Republic of China (OJ 2013 L 316, p. 8; ‘the provisional regulation’).
12 On 27 November 2013, the Commission informed the applicant, pursuant to Article 20 of the basic regulation (now Article 20 of Regulation 2016/1036), of the essential facts and considerations on which basis it had imposed the provisional anti-dumping duty on imports of solar glass and produced, inter alia, the specific dumping calculations and the determination of the undercutting and injury regarding the applicant.
13 On 6 January 2014, the applicant submitted its observations on the preliminary findings of the investigation, claiming, inter alia, that the investigation had not disclosed sufficient information regarding the dumping calculations and the determination of the undercutting and injury regarding the applicant; it claimed that, as a result, it had been deprived of its rights of defence during the conduct of the investigation.
14 Following those observations, the Commission disclosed additional information to the applicant, some of which, for confidentiality reasons, were communicated in price ranges.
15 On 7 March 2014, the Commission informed the applicant of the essential facts and considerations on which basis it intended to impose a definitive anti-dumping duty on the applicant’s exports of solar glass to the European Union.
16 On 19 March 2014, the applicant submitted its observations on the investigation’s definitive disclosure, submitting, in essence, that, even though the Commission had disclosed further information to it, it was of the view that it was still not in possession of sufficient information concerning the determination of the undercutting and injury regarding the applicant.
17 On 13 May 2014, the Commission adopted the contested regulation, under which, inter alia, the definitive anti-dumping duty concerning the applicant’s products was set at 36.1%, while the injury elimination level for the applicant was 39.3% and the dumping margin was 83.1%.
Forms of order sought
18 The applicant claims that the Court should:
– annul the contested regulation in so far as it concerns the applicant;
– order the Commission and the intervener, GMB Glasmanufaktur Brandenburg GmbH, to pay the costs of the proceedings before the General Court and the Court of Justice.
19 The Commission contends that the Court should:
– examine whether the applicant still has an interest in bringing proceedings and, in any event, dismiss the action as unfounded;
– order the applicant to pay the costs of the proceedings before the General Court and the Court of Justice.
20 The intervener contends that the Court should:
– dismiss the appeal as inadmissible and, in any event, unfounded;
– order the applicant to pay the costs of the proceedings before the General Court and the Court of Justice.
Law
Interest in bringing proceedings
21 As a preliminary point, the Commission, supported by the intervener, is uncertain whether the applicant still has an interest in bringing proceedings.
22 In that connection, it points out, inter alia, that its Implementing Regulation (EU) 2020/1080 of 22 July 2020 imposing a definitive anti-dumping duty on imports of solar glass originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation 2016/1036 (OJ 2020 L 238, p. 1), adopted following an expiry review, repealed the contested regulation and extended the anti-dumping duty on solar glass, including on the applicant’s imports. Accordingly, it considers that any annulment of the contested regulation cannot call into question Implementing Regulation 2020/1080, which has become final vis-à-vis the applicant.
23 In that connection, it must be stated that in the circumstances of the case, the proper administration of justice justifies the dismissal of the action on the merits in this case without first ruling on that issue (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).
24 Having regard, first, to the circumstances of the case and to the principle of the proper administration of justice and, secondly, to the fact that the action is, on the grounds set out below, unfounded, the General Court holds that the merits of the applicant’s claim for annulment must be examined at the outset, without a prior ruling on the procedural issue raised by the Commission and supported by the intervener.
Substance
25 Given that the first plea was rejected by the Court of Justice, it is for the General Court to examine the second, third and fourth pleas raised by the applicant.
26 By its third plea, which it is appropriate to examine first, the applicant claims infringement of Article 2(8) and (9) of the basic regulation (now Article 2(8) and (9) of Regulation 2016/1036). By its second plea, the applicant claims infringement of Article 2(10) of that regulation. By its fourth plea, it claims infringement of its rights of defence and claims that insufficient reasons were provided in the contested regulation and, therefore, claims infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of Article 19 of the basic regulation (now Article 19 of Regulation 2016/1036) and Article 20 of that regulation, and of Articles 6.2, 6.4, 6.5 and 6.9 of Annex II to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103; ‘the WTO Anti-Dumping Agreement’).
The third plea, alleging infringement of Article 2(8) and (9) of the basic regulation
27 The applicant maintains that the contested regulation infringes Article 2(8) and (9) of the basic regulation because the export price as determined by the Commission is not the price actually paid or to be paid for the product sold for export to the European Union, nor is it based on the price for which the exported product is resold for the first time to an independent buyer within the European Union, within the meaning of that provision, but is ‘the low transfer price charged … to its related company [XSolarHK]’.
28 Referring to paragraph 55 of the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78), and to paragraph 177 of the judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62), the applicant submits that it constitutes a single economic entity with XSolarHK.
29 Regarding the Commission’s argument that the applicant confuses Article 2(9) of the basic regulation with Article 2(10) thereof, the applicant argues that the Commission based its determination of the export price on the sales price that the applicant charged to XSolarHK, which was clearly an unreliable transfer price.
30 According to the applicant, given that the Commission deducted the intra-group mark-up charged by XSolarHK from the export price to the European Union before it transferred the remainder to the applicant, the export price thus adjusted is the intra-group transfer price. However, inasmuch as only the economic reality matters, the correct classification should be applied to the export price.
31 The applicant argues that Article 2(9) of the basic regulation provides that an export price could be distorted not only by an association or compensatory arrangement with an importer, but also by an association or a compensatory arrangement with a third party. Here, the applicant claims that XSolarHK is a third party within the meaning of Article 2(9) of the basic regulation, so that the Commission could have constructed the export price.
32 The Commission, supported by the intervener, contends that the third plea should be rejected.
33 It must be noted at the outset that, contrary to the applicant’s assertion and as highlighted by the combined reading of recital 45 of the contested regulation and recital 65 of the provisional regulation, regarding the ‘export price’, that is, ‘the price actually paid or payable for the product when sold for export from the exporting country to the [European Union]’, within the meaning of Article 2(8) of the basic regulation, the Commission based its decision on the price paid or payable when the exported product was resold for the first time by XSolarHK to an independent buyer in the European Union. The Commission regarded those data as reliable, such that it did not apply Article 2(9) of the basic regulation.
34 As is apparent from recitals 46 to 48 of the contested regulation, it is only when the normal value and the export value were compared, that is, at another stage of the calculation of the dumping margin, that the Commission deducted, in accordance with Article 2(10)(i) of the basic regulation, the commission paid by the applicant to XSolarHK from the export price invoiced by XSolarHK to EU customers.
35 It follows that the applicant is incorrect to complain that the Commission deducted the amount retained by XSolarHK from the export price, and, consequently, the amounts paid by the applicant to that company, and in so doing the Commission infringed Article 2(8) and (9) of the basic regulation.
36 Furthermore, it is settled case-law that the choice between the different methods of calculating the dumping margin, together with the assessment of the normal value of a product or the determination of the existence of injury, require an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether 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 (see, to that effect, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 41 and the case-law cited).
37 It is clear from equally settled case-law that the adjustments made under Article 2(10)(a) to (k) of the basic regulation differ, as regards their objective, from the adjustments made in the construction of the export price. Thus, whereas the latter adjustments are intended to determine the export price corresponding to normal trading conditions, the adjustments made under Article 2(10)(a) to (k) of the basic regulation are intended to adjust the export price or the normal value already calculated pursuant to the rules laid down in Article 2(1) to (9) of that regulation. Those adjustments are made by reference to objective factors, which correspond to the particular features of each market, domestic and export, and which have a varying impact on conditions and terms of sale, thus affecting price comparability (see judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 101 and the case-law cited).
38 Accordingly, in so far as the adjustment provided for by Article 2(9) of the basic regulation and the adjustment provided for by Article 2(10) of that regulation are two separate adjustments, there is nothing to prevent the Commission from making an adjustment under the first provision and under the second or, conversely, under only one of the two provisions (see, to that effect and by analogy, judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 102).
39 In the present case, since the adjustments provided for by Article 2(9) of the basic regulation and the adjustments provided for by Article 2(10) of that regulation pursue different objectives, the applicant cannot criticise the Commission for having made an adjustment under the second provision without doing so when determining the export price in circumstances where there is nothing to suggest that the Commission, by determining the export price on the basis of Article 2(8) of the basic regulation only, committed a manifest error of assessment.
40 The third plea must therefore be dismissed in its entirety.
The second plea, alleging infringement of Article 2(10)(i) of the basic regulation
41 The applicant, relying on the judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78), and of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62), submits that, in order to apply an adjustment under Article 2(10) of the basic regulation, as the Commission did in the contested regulation, the Commission was required to provide, at the very least, consistent evidence to show that the sales company affiliated to it, here XSolarHK, carried out functions similar to those of an agent working on a commission basis.
42 In that connection, the applicant points out that, during the administrative procedure, it had informed the Commission that XSolarHK, of which it is a fully owned subsidiary, performs limited re-invoicing activities in Hong Kong, with limited personnel and resources.
43 While it acknowledged that the activities of XSolarHK were limited by observing, in recital 47 of the contested regulation, that that company ‘issued a sales invoice to the Union customer at the contractual price …, collected the payment, deducted a mark-up and paid the remaining amount to the exporting producer’, the Commission nevertheless confirmed in the same regulation that that company was an ‘agent working on a commission basis’.
44 The applicant submits that notwithstanding the statement in recitals 47 and 48 of the contested regulation that XSolarHK could not be an internal sales department of the applicant, the Commission did not demonstrate that XSolarHK’s activities were those of an agent working on a commission basis.
45 The applicant emphasises that it did not claim that XSolarHK was an internal sales department but, on the contrary, that it shared its production and activities with that company. It states that XSolarHK is merely an investment and capital deposit vehicle and the ‘place where the applicant channels payment through Hong Kong so as to keep a share of the payment in Hong Kong in order to enjoy the favourable tax treatment there’ and that it does not, as a result, carry on any activity similar to that of a sales agent.
46 According to the applicant, it is, in fact, the Commission itself which treated the applicant and XSolarHK as the ‘Xinyi group’ and considered that the export price was the sales price charged by XSolarHK to EU customers, such that the Commission treated them as a single economic entity.
47 The applicant concludes that, by considering that XSolarHK carried on an activity similar to that of a sales agent without demonstrating that this was the case, the Commission not only infringed Article 2(10)(i) of the basic regulation, but also committed a manifest error of assessment.
48 In the alternative, the applicant alleges that, even if the Commission had established that XSolarHK could be treated as a sales agent working on a commission basis, the scale of the deduction alone (20% in the first 2 months of the investigation period and 10% in the remaining 10 months) and the fact that it was changed unilaterally on the basis of an email from the group headquarters render the amount adjusted incompatible with Article 2(10)(i) of the basic regulation.
49 It states, at the very least, that the Commission should, in order to base its findings on economic reality, have deducted as sales commissions an amount equivalent to that which an unrelated trader would have charged as opposed to the very high mark-up deducted by XSolarHK. According to the applicant, the Commission’s argument that it could not use a commission charged by an independent trader because it would not have been possible to verify the accuracy of such an amount is an a posteriori justification. In any event, nothing would have prevented the Commission from using a commission amount equal to that charged by the sales agents of its competitors that were subject to the investigation, or, further, an amount used in other trade defence investigations.
50 The Commission, supported by the intervener, contends that the second plea should be rejected.
51 First of all, it should be noted that, where the Commission considers that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions similar to those of an agent working on a commission basis, it is the responsibility of that institution to adduce at the very least consistent evidence showing that that condition is fulfilled (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 57).
52 Here, in order to adduce consistent evidence for that purpose, it was sufficient for the Commission to show that the export price set in accordance with Article 2(8) of the basic regulation was dissimilar to the normal value. The Commission compared the export price charged to EU customers and the price charged by the applicant to XSolarHK – despite the fact that the applicant had its own internal export department, which it does not dispute – in order to find that the applicant and XSolarHK were not a single economic entity and, accordingly, made an adjustment pursuant to Article 2(10)(i) of the basic regulation.
53 The applicant’s argument based on the legal nature of its links to XSolarHK cannot call that assessment into question.
54 It is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may be made only to take account of differences in factors which affect the prices and therefore their comparability. In other words, the purpose of an adjustment is to re-establish the symmetry between normal value and export price.
55 Next, regarding, in particular, the consideration of commission paid in respect of sales, Article 2(10)(i) of the basic regulation provides that that commission includes the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis. Accordingly, Article 2(10)(i) of the basic regulation allows an adjustment to be made not only for differences in commission paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis (see judgments of 7 February 2013, EuroChem MCC v Council, T‑84/07, EU:T:2013:64, paragraphs 124 to 127 and the case-law cited, and of 7 February 2013, EuroChem MCC v Council, T‑459/08, not published, EU:T:2013:66, paragraphs 129 to 133 and the case-law cited).
56 Accordingly, it is not necessary for the purposes of Article 2(10)(i) of the basic regulation for there to be an actual agency contract but rather, from an economic standpoint, that duties ‘similar to those of an agent working on a commission basis’ are carried out, which is the case here.
57 As the applicant acknowledges, it had an internal sales department, and XSolarHK’s duties consisted exclusively of reselling to customers – EU customers in particular – the product it had purchased from the applicant, to which a mark-up was applied, without intervening in the production process or changing the product in question.
58 Further, as far as concerns the complaint in the alternative regarding the basis and scale of the adjustment, it is sufficient to note that the Commission was in no way required to calculate the transfer price between the applicant and XSolarHK in order to bring it into line with the agency commission that might be charged by an agent to an independent principal, since it used, without committing a manifest error of assessment, the data showing the amounts – and, therefore, the mark-up – actually charged; the reliability of those data cannot be challenged on account of the scale of the adjustment.
59 Having regard to the foregoing, the second plea must be rejected.
The fourth plea, alleging breach of the rights of the defence, infringement of Article 41 of the Charter and of Articles 19 and 20 of the basic regulation, infringement of Articles 6.2, 6.4, 6.5 and 6.9 of the WTO Anti-Dumping Agreement, and breach of the right to a sufficient statement of reasons
60 By its fourth plea, the applicant claims, in essence, that, by failing to disclose to it, or even to its lawyers (despite the fact that they are bound by an obligation to maintain confidentiality), information used to calculate the injury margin, the normal value and price comparability on the ground that that information contained confidential data, the Commission did not allow it to verify the accuracy of that methodology or of those calculations, with the result that it is in breach of the applicant’s rights of the defence and gave insufficient reasons for the contested regulation, contrary to Article 41 of the Charter, Articles 19 and 20 of the basic regulation, and Articles 6.2, 6.4, 6.5 and 6.9 of the WTO Anti-Dumping Agreement.
61 In that connection, regarding the information used to calculate the injury margin, the applicant claims that, in the investigation’s definitive disclosure, the actual sales prices and target prices of EU producers for two product-types were either removed or replaced with price ranges, the Commission relying wrongly in that regard on grounds of confidentiality in recital 19 of the contested regulation.
62 According to the applicant, the disclosure of the information at issue would not have been detrimental to the producers concerned, as it was information relating to actual sales prices and target prices in the European Union.
63 It argues that the Commission’s calculation methodology makes it impossible for it to reconstitute the individual data of any particular member of the Union industry and to defend itself against the claims made in the complaint. To that end, it observes that the Commission selected a sample of EU producers, apparently composed of seven producers, of which four were identified by name, and based its calculation of the injury margins – by weighted average calculations by product-type of the adjusted data on those producers – on the non-injurious prices of those EU producers, of which three out of four names were redacted.
64 Regarding the claim that the applicant was not sufficiently informed as to the determination of the normal value and of comparability, the applicant challenges the Commission’s position that (i) the manufacturing costs of coated solar glass, obtained from the information provided by the Union industry, are 27% higher than the cost of manufacturing uncoated solar glass and (ii) the unit cost of floating glass production, obtained from the same source, ranges from 45 to 70 renminbi per square metre for the product-types concerned.
65 In that connection, the applicant notes that, after having rejected the applicant’s MET claim, the Commission calculated its dumping margin by comparing the normal value calculated on the basis of the data relating to a producer in the analogue country (Türkiye) and the applicant’s export price to the European Union. It claims that, since the producer in the analogue country does not have coating technology, nor does it produce floating glass, the normal value of those product types (that is, coated glass and floating glass) had to be constructed in order to be compared to its exports of the relevant products to the European Union.
66 The applicant complains that the Commission failed to answer its questions raised during the investigation relating to how the services responsible for the investigation reached that percentage of 27%.
67 It submits that, although it had explained to the Commission that it did not market double-side coated glass, only single-sided solar glass, and it assumed that the costs differed for those two types of solar glass, the Commission concluded that no distinction should be made and rejected that assumption, reversing the burden of proof onto the applicant without communicating to the applicant all of the relevant data on the issue.
68 Having regard to all the foregoing, the applicant submits that it did not have access to all the information necessary to understand why the Commission adopted the measures at issue in the contested regulation and that, by refusing to grant its lawyers access to confidential information, the Commission interpreted the exception in respect of confidentiality in an erroneously broad manner.
69 The applicant is of the view that, by doing so, the Commission is in breach of its rights of defence, failed to fulfil its obligation to state reasons and, as a result, infringed Article 41 of the Charter and Articles 19 and 20 of the basic regulation.
70 The applicant states that, without denying the importance of protecting the confidentiality of the information disclosed, it is necessary that such protection does not lead to a breach of its rights of defence. Moreover, it claims that, pursuant to Article 20(4) of the basic regulation (now Article 20(4) of Regulation 2016/1036), it is for the Commission to make a final disclosure to the exporting producer of the essential facts and considerations on which it bases its justification for adopting anti-dumping measures.
71 Thus, according to the applicant, the Commission’s broad interpretation of Article 19(5) of the basic regulation, which prohibits any access to data where the interested parties have decided to oppose that access, infringes Article 41 of the Charter; the latter provision takes precedence over the former. The applicant submits that a balance must be struck between respect for fundamental rights and protection of the confidentiality of the observations submitted by the parties to the anti-dumping proceedings. It argues that such reconciliation between respect for fundamental rights and protection of confidentiality could be ensured, as is, moreover, the case in ‘anti-trust investigations’, by allowing the lawyers of the interested parties to consult sensitive information in rooms provided for that purpose.
72 The applicant states that it did not request that the hearing officer re-examine the data inasmuch as it did not intend for certain confidential data to lose that status and merely wished to acquaint itself with, and understand, the full dumping margin and injury calculation which underpinned the duty calculated for the applicant. What is more, its lawyers had previously made similar requests unsuccessfully to the hearing officer and, accordingly, knew that such a request had no chance of being successful. The applicant asserts that, had it appealed to the hearing officer, this would have in no way led the Commission to grant the applicant access to those confidential data. In that connection, according to the applicant, the hearing officer’s mandate does not include granting access to confidential data, but merely to reviewing the ‘confidential status’ of certain documents.
73 The applicant adds that the Commission’s practice of refusing systematically any access to confidential data is contrary to Articles 6.2, 6.4 and 6.9 of the WTO Anti-Dumping Agreement which are referred to in the EC-China Fasteners case (AB-2011-2, WT/DS 397/AB/R), in which the World Trade Organisation (WTO) Appellate Body confirmed the importance of access by interested parties to all the information on which the decision of the investigating authority is based. The applicant maintains that a similar approach should be adopted in EU law, given that Article 6(7) of the basic regulation (now Article 6(7) of Regulation 2016/1036), Article 14(2) of the regulation (now Article 14(2) of Regulation 2016/1036) and Article 20 of that regulation transposed those articles of the WTO Anti-Dumping Agreement. Further, the Commission’s interpretation of Article 19 of the basic regulation is contrary to Article 6.5 of the WTO Anti-Dumping Agreement.
74 The Commission, supported by the intervener, contends that the fourth plea should be rejected. It claims, inter alia, that the applicant’s argument based on the primacy of Article 41 of the Charter over Article 19 of the basic regulation must be rejected as inadmissible, since it was raised only in the reply.
75 It is settled case-law that the principle of respect for the rights of defence is a fundamental principle of EU law (see judgment of 19 March 2015, City Cycle Industries v Council, T‑413/13, not published, EU:T:2015:164, paragraph 152 and the case-law cited).
76 In accordance with that principle, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegations (see judgment of 19 March 2015, City Cycle Industries v Council, T‑413/13, not published, EU:T:2015:164, paragraph 153 and the case-law cited).
77 The fact remains that, in anti-dumping cases, the rights of the defence must be weighed against respect for legitimate interests of confidentiality and for professional and business secrecy. In that connection, it must be observed, generally, that Article 41(2)(b) of the Charter provides that the ‘right to good administration … includes … the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’.
78 The balance between the rights of the defence and legitimate interests of confidentiality and business secrecy is, in connection with anti-dumping duties specifically, governed by Articles 19 and 20 of the basic regulation, which provide, inter alia and essentially, that the Commission must take account of the interested parties’ legitimate interest in not having their business secrets disclosed and must refrain from doing so.
79 Thus, in the context of administrative proceedings such as those preceding the imposition of anti-dumping duties, the Commission’s duty to supply information in order to respect the rights of defence, within the meaning of the case-law mentioned in paragraph 76 above, must be reconciled with the prohibition on disclosing confidential information flowing from Article 19 of the basic regulation, which provides that EU institutions may consider certain information to be confidential if to disclose it is likely to have a significantly adverse effect upon the supplier or the source of such information (see, to that effect, judgment of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraphs 120 and 121).
80 In that connection, the Court has held that, where the nature of the procedure requires it, the interests safeguarded by the special protection which business secrets enjoy must be balanced against the rights of defence of the interested parties to that procedure. This is the case in anti-dumping investigations. This means that, even in the case of information covered by business secrecy, the Commission cannot be placed under an absolute obligation to refuse its disclosure, without assessing the specific circumstances of the case and, in particular, the specific situation of the interested party concerned (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 165).
81 Accordingly, the decision whether it is appropriate to disclose confidential information must be made on a case-by-case basis, taking into account all the relevant factors in the case (see, to that effect and by analogy, judgment of 6 June 2013, Donau Chemie and Others, C‑536/11, EU:C:2013:366, paragraph 34).
82 In that regard, it must be noted as a preliminary point that, regarding the alleged inadmissibility of the argument relating to the primacy of Article 41 of the Charter over Article 19 of the basic regulation, the application shows that, from that stage of the proceedings, the applicant raised the argument that the Commission’s interpretation of Article 19(5) of the basic regulation infringed Article 41 of the Charter, which takes precedence over that regulation, such that that argument must be declared admissible.
83 Having regard to the particulars set out in paragraphs 75 to 81 above, the Court must, consequently, ascertain whether the information at issue is confidential and, if so, whether the Commission was validly entitled to refrain from disclosing to the applicant the information used to calculate the dumping and injury margins on the basis of which the level of the anti-dumping duty was determined.
84 Regarding, first, whether the information at issue is confidential, it must first be observed that, as acknowledged by the applicant itself in the reply, it does not dispute that some of the data used to calculate the dumping margin were confidential, which is why it requested that the full dumping and injury margin be verified by its lawyers, who are nominally bound by an obligation to maintain confidentiality.
85 Moreover, it is apparent from recitals 8 and 16 to 20 of the contested regulation that, regarding the determination of injury to the European Union, the Commission considered that the information relating to the sales prices and target prices of a relevant product-type – produced by only one or two EU producers – was confidential. In order not to make it possible for competitors to become aware of the pricing level of that single product-type, the Commission deleted, or replaced by ranges, the prices of two of the five product-types comprising the sample, while redacting all the names but one of the producers making up that sample.
86 As far as concerns the determination of the normal value, as follows from recital 64 of the provisional regulation, given that the single Turkish producer that agreed to cooperate with the Commission did not use coating technology for solar glass and did not produce floating glass, the Commission applied an adjustment to the manufacturing costs of that producer corresponding to selling, general and administrative costs and profit. The cost of coating and the cost of the float production process were based on data provided by the Union industry.
87 Regarding the determination of the normal value, it is apparent from the combined reading of recitals 12 to 15 of the contested regulation that the Commission, following the communication of the provisional regulation, disclosed details concerning the amount of the adjustment applied to the cost of coating and of the float production process, in addition to information concerning the percentage of selling, general and administrative costs and profit.
88 It is apparent from the preceding paragraphs that the disclosure of the data used by the Commission, regarding both the sales price of the product manufactured in the European Union and the selling, general and administrative costs and profit relating to the products manufactured by the producer in the analogue country, concerned in one case two, or even one, producers and, in the other case, a single producer.
89 Given that the disclosure of the data at issue was intended to provide information, as far as concerns the target prices and sales prices of EU producers, on the price policy practice of a very specific and strategic product-type manufactured by two, or even one, producers and, for the second set of data, on particulars of the resale price of products manufactured by the single producer in the analogue country, such disclosure to competitors could inevitably be attributed directly to each of the producers concerned and be used to their detriment on the markets in which they operated.
90 Moreover, it must be observed that, as far as concerns specifically the data relating to the determination of the injury margin, the method used by the Commission of redacting, except in respect of one of the producers, the names of the EU producers included in the sample and of indicating price ranges for two of the five product-types in that sample, is not a disproportionate method having regard to the objective it pursued, namely that of not disclosing the sale price of a very specific product-type.
91 Indeed, the information in the file does not make it possible to consider that the mere anonymisation of the greater part of the EU producers included in the sample and the provision of information on sales prices via ranges alone as far as concerns the data of two of the five product-types made it impossible for the applicant to understand the calculations carried out by the Commission in order to determine the injury suffered by the Union industry and, ultimately, that such disclosure would have been such as to change the result of the investigation.
92 As for the determination of the normal value applied to the producer in the analogue country, it must be observed that the Commission, regarding the applicant’s complaint that it was not clear whether the adjustment made to the cost of the coating took account of the cost of double-side coating, the cost of single-side coating, or both, considered, as is apparent from recitals 67 and 68 of the contested regulation, that it had to be rejected on two grounds; first, because the applicant had not demonstrated that there was a consistent difference in the costs of production between single-side and double-side coated solar glass and, second, because sales of double-side coated glass resold by the Union industry represented only 1% of all the sales of solar glass for thermal collectors.
93 In that regard, as is apparent from the documents supplied in Annexes B8 and B9 to the defence and included in the non-confidential file, the Commission had in its possession sufficient technical information to show that there was no evidence that the costs of producing double-side coated solar glass were higher than those of single-side coated solar glass. Having regard to that information, the Commission was thus able to observe validly, without unlawfully reversing the burden of proof, that the applicant had not adduced any evidence to show that there was a consistent difference in the production costs of those two product-types.
94 In addition, the applicant does not dispute that double-side coated solar glass represents less than 1% of the sales of solar glass for thermal collectors, so that the Court cannot consider that, had the sale of that specific product been taken into account, it would have been such as to alter the Commission’s findings regarding the amount of the adjustment applied to the coating cost and the manufacturing cost.
95 It follows that the facts on which the Commission relied were, in themselves, sufficient to reject the applicant’s argument that the adjustment rate of 27% of the manufacturing cost was unreliable because double-side coated solar glass had been taken into account.
96 It follows that, in so far as the disclosure of the data at issue was capable of causing significant harm to the undertakings which had disclosed that data to the Commission, the latter was able, without committing any error, to consider that those data were confidential and had to be protected as such, pursuant to Article 19 of the basic regulation.
97 Regarding, second, whether the Commission was entitled to refuse any disclosure of those documents, it follows from paragraphs 77 and 78 above that Article 41 of the Charter provides, as do Articles 19 and 20 of the basic regulation, for the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of business secrecy.
98 This means that, having regard to the circumstances of the case and the weighing up of the interests therein, given that certain information is confidential and must be protected as such, the Commission cannot be criticised for not communicating it, even to lawyers who might be bound by a duty to maintain confidentiality.
99 In that regard, the applicant retorts that, in anti-trust cases, the Commission’s procedural manual provides for the possibility for lawyers to consult confidential documents in ‘data rooms’. The fact remains that the applicant does not set out the reasons why similar rules should apply to anti-dumping proceedings in the context of which, inter alia and as pointed out by the Commission, data used to calculate dumping relate to third country undertakings over which the Commission has no binding power.
100 In any event, on the grounds mentioned in paragraphs 85 to 99 above, the Commission was able to regard validly the information at issue as confidential and consider that, having regard to the circumstances of the case and the weighing up of the interests therein, it was inappropriate to disclose them to the applicant or to its lawyers.
101 In that connection, it must be noted that, although the applicant did, admittedly, alert the Commission during the course of the administrative procedure of the difficulties it had encountered regarding the confidentiality of documents, the fact remains that, as is apparent from recital 23 of the contested regulation, it did not request an intervention from the hearing officer within the deadline for submitting comments on the definitive disclosure, even though the Commission had informed it that it could address itself to the hearing officer in relation to all the issues relating to rights of defence generally and access to the file in particular.
102 The applicant cannot justify the fact that it did not approach the hearing officer by the fact that its lawyers had made such a request unsuccessfully in another case. It is not disputed that (i) the applicant was entitled to address itself to the hearing officer and (ii) that the hearing officer’s assessments regarding respect for rights of the defence and confidentiality are made on a case-by-case basis, so that the existence of another such decision by the hearing officer cannot, of itself, rule out that, in the present case, he would have granted the applicant’s request.
103 It is thus apparent from the points set out in paragraphs 97 to 100 above that, in refusing to grant the applicant’s request concerning disclosure of documents, the Commission did not infringe Article 41 of the Charter or Articles 19 and 20 of the basic regulation.
104 As for the applicant’s argument that the Commission’s interpretation of Articles 19 and 20 of the basic regulation is inconsistent with Articles 6.2, 6.4, 6.5 and 6.9 of the WTO Anti-Dumping Agreement, it must be noted that the sections of the WTO Appellate Body in the EC-China case (AB-2011-2, WT/DS 397/AB/R) cited by the applicant state only that the investigating authority is required to provide access to all the non-confidential information in a file. Those sections do not, by contrast, address the specific issue in the present case and which relates to the limits of access to documents for the protection of certain information which is confidential by nature.
105 As for the insufficient statement of reasons, it must be stated that, since, for reasons of confidentiality, the Commission was entitled, having regard to the circumstances of the case, not to disclose certain individual data for certain EU producers and those of the producer in the analogue country and that, as is apparent from paragraphs 91, 94 and 95 above, the details on which it based its decision were not, of themselves, such as to prevent the applicant from understanding the reasons why the Commission imposed an anti-dumping duty on it or the amount of that duty, that complaint must be rejected.
106 Accordingly, the fourth plea must be rejected.
107 It is apparent from all the foregoing that the action must be dismissed as unfounded, without there being any need to rule on its admissibility.
Costs
108 Pursuant to Article 219 of the Rules of Procedure of the General Court, in decisions of the General Court given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Given that the Court of Justice reserved the costs of the applicant, the Commission and the intervener, it is for the General Court also to decide, in the present case, on all the costs relating to the proceedings before it and the appeal proceedings before the Court of Justice.
109 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. Furthermore, in accordance with Article 138(3) of the Rules of Procedure, the Court may order interveners other than Member States or EU institutions to bear their own costs.
110 In the present case, as the applicant has been unsuccessful in the present proceedings and in the two sets of appeal proceedings, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission, including those relating to the two sets of appeal proceedings. In addition, in accordance with Article 138(3) of the Rules of Procedure, the intervener must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders Xinyi PV Products (Anhui) Holdings Ltd to bear its own costs and to pay those incurred by the European Commission;
3. Orders GMB Glasmanufaktur Brandenburg GmbH to bear its own costs.
Delivered in open court in Luxembourg on 14 December 2022.
E. Coulon | | M. van der Woude |