Case T‑424/13

Jinan Meide Casting Co. Ltd

v

Council of the European Union

(Dumping — Importations of threaded tube or pipe cast fittings, of malleable cast iron originating in China — Definitive anti-dumping duty — Confidential treatment of the normal value calculations — Information provided in good time — Time limit for adopting a decision on market economy treatment — Rights of the defence — Equal treatment — Principle of non-retroactivity — Article 2(7) to (11), Article 3(1) to (3), Article 6(7), Article 19(1) and (5), and Article 20(2) and (4), of Regulation (EC) No 1225/2009)

Summary — Judgment of the General Court (Eighth Chamber), 30 June 2016

1.      Acts of the institutions — Temporal application — Procedural rules — Substantive rules — Distinction — Temporal application of Regulation No 1168/2012, amending basic Regulation No 1225/2009 — Amendment of the time-limit for ruling on the status of company operating in a market economy — Application to a decision adopted before Regulation No 1168/2012 entered into force — Not permissible

(European Parliament and Council Regulation No 1168/2012, Arts 1, point 1(a), and 2; Council Regulation No 1225/2009, Art. 2(7)(c), second para.)

2.      Common commercial policy — Protection against dumping — Imports from countries not having a market economy as referred to in Article 2(7)(b) of Regulation No 1225/2009 — Procedure for assessing the conditions enabling a producer to benefit from market economy treatment — Time-limit — Mandatory nature

(Council Regulation No 1225/2009, Art. 2(7)(c), second para.)

3.      EU law — Principles — Force majeure — Concept

4.      Common commercial policy — Protection against dumping — Anti-dumping proceeding — Rights of defence — Procedural irregularity — Possibility of obtaining annulment of a regulation establishing definitive anti-dumping duties by demonstrating the mere possibility of a different decision in the absence of that irregularity

(Council Regulation No 1225/2009)

5.      Common commercial policy — Protection against dumping — Investigation — Observance of the rights of the defence — Duty of the institutions to keep the undertakings concerned informed, to respect the confidentiality of information, and to reconcile those obligations — Compliance with the principle of sound administration — Obligation on institutions to respect the confidentiality of information

(Charter of Fundamental Rights of the European Union, Art. 41(1) and (2); Council Regulation No 1225/2009, Arts 6(7), 19, and 20)

6.      Common commercial policy — Protection against dumping — Investigation — Observance of the rights of the defence — Duty of the institutions to keep the undertakings concerned informed — Scope — Information provided to the Commission by a similar-country producer not capable of being used in the course of the investigation — Not included

(Council Regulation No 1225/2009, Art. 6(7))

7.      Common commercial policy — Protection against dumping — Investigation — Observance of the rights of the defence — Duty of the institutions to keep the undertakings concerned informed — Scope — No obligation on the Commission to reply in writing to a request for better particulars of information appearing in the final information document and to wait one month before sending the proposal for a definitive regulation

(Council Regulation No 1225/2009, Arts 15 and 20(4))

8.      Common commercial policy — Protection against dumping — Anti-dumping proceeding — Rights of defence — Right to be heard — Scope — No obligation on the institutions to adhere to the point of view of the parties concerned — No obligation to reply to all the arguments of the parties

(Council Regulation No 1225/2009)

9.      Common commercial policy — Protection against dumping — Anti-dumping proceeding — Rights of defence — Judicial review — Account taken of grounds not constituting the basis of the measure which entailed alleged infringement of defence rights — Not permissible

10.    Common commercial policy — Protection against dumping — Anti-dumping proceeding —Communication of information to undertakings by the Commission — Compliance with the principles of sound administration and equal treatment

(Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 1225/2009, Arts 19 and 20)

11.    Common commercial policy — Protection against dumping — Anti-dumping proceeding — Communication of information to undertakings by the Commission — Possibility of disclosing confidential information to a specific interested party with the specific authorisation of the person who provided it

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, ‘1994 Anti-dumping Agreement’, Art. 6.5; Council Regulation No 1225/2009, Arts 19(1) and (5), and 20(2) and (4))

12.    International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Obligation to interpret acts of secondary legislation in conformity with those agreements — Application in anti-dumping matters

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, ‘1994 Anti-dumping Agreement’, Art. 6.5; Council Regulation No 1225/2009, Arts 19(1) and (5))

1.      Article 2 of Regulation No 1168/2012 (‘the amending regulation’) amending basic anti-dumping Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community provides that that regulation is applicable to any forthcoming or pending investigation as from the date on which it entered into force. Moreover, the amendment of the time limit for determining market economy treatment (MET) introduced by Article 1(1)(a) of the amending regulation would have been applicable even in the absence of that Article 2, concerning in this case the amendment of a procedural rule.

Thus, the above-mentioned amendment of the time-limit for the MET determination is in principle applicable, in the context of an ongoing anti-dumping investigation, to any Commission decision determining whether an undertaking satisfies the criteria to be granted MET, within the meaning of the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation, and having been adopted on or after the date of its entry into force.

On the other hand, Article 2 of the amending regulation cannot have had the effect of rendering Article 1(1)(a) of the amending regulation applicable to a decision determining MET adopted before the entry in force of that regulation. That would confer on that provision a retroactive effect, which is not clear from the wording of Article 2 of the amending regulation. In addition, whilst new rules, and in particular procedural rules, can apply to legal situations that have arisen and become definitive under the old law, the application of the new rules must nevertheless comply with the principle of non-retroactivity. The consequence of compliance with the principle of non-retroactivity is, in particular, that the legality of an EU act must, in principle, be assessed having regard to the provision that formed the legal basis of that act, which was in force at the date on which it was adopted.

(see paras 66-68)

2.      The mere fact that the Commission has the option, or even the obligation, to reconsider an initial decision on MET that was vitiated by an error of assessment does not affect its obligation to comply with the time limit laid down by basic anti-dumping Regulation No 1225/2009 for adopting such an initial decision. Furthermore, the wording of the second subparagraph of Article 2(7)(c) of the basic regulation does not contain any indication that the time limit that it lays down should be interpreted as being purely indicative. For the Commission, therefore, compliance with the time limit of three months for determining MET, laid down in the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation, constitutes not an option but a requirement.

(see paras 70-72)

3.      See the text of the decision.

(see para. 76)

4.      In the field of dumping, the existence of an irregularity relating to the rights of the defence can result in annulment of a regulation establishing definitive anti-dumping duties only where it cannot be ruled out that, due to that irregularity, the administrative procedure could have resulted in a different outcome, thus in fact adversely affecting the applicant’s defence rights.

In that regard, the applicant is not required to demonstrate that the institutions’ decision would have been different, but simply that such a possibility cannot be totally ruled out since it would have been better able to defend itself if there had been no procedural error.

(see paras 81, 152, 194, 214)

5.      See the text of the decision.

(see paras 92-97, 103, 105)

6.      In the context of an anti-dumping investigation, the Commission does not infringe Article 6(7) of basic anti-dumping Regulation No 1225/2009 or an applicant’s defence rights by not permitting the applicant to inspect email correspondence concerning merely the difficulties faced by a producer in a country similar to the exporting country in obtaining the data requested by the Commission with a view to determining the normal value of the product imports of which are subject to the anti-dumping duty and the Commission’s clarifications seeking to address those difficulties. Such correspondence does not, in itself, contain information that was provided by the producer to the Commission and used in the course of the investigation, as required by Article 6(7) of the basic anti-dumping regulation for consultation to be permitted.

(see paras 111, 114)

7.      See the text of the decision.

(see paras 120-122, 124, 125)

8.      See the text of the decision.

(see para. 126)

9.      Where an EU institution invites the General Court to substitute grounds for those relied on by an institution during the investigation procedure in order to refuse the applicant’s request for disclosure of the normal value calculations, the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted.

Moreover, a breach of defence rights during the administrative proceedings is capable of leading to the annulment of the anti-dumping regulation. Consequently, that breach cannot be remedied by a mere examination, by the Court, of the reasons capable of justifying the decision constituting the breach alleged. Such an examination is limited to a judicial review of the grounds raised and cannot replace a full investigation of the case in the context of an administrative procedure. Moreover, by becoming aware, for the first time in the context of the action, of grounds relied on by the institutions before the Court, the applicant is not placed in the situation in which it would have been if it had been able to submit its observations during the investigation procedure. Consequently, the Court cannot, in any event, determine whether there has been a breach of the applicant’s defence rights as a result of the refusal to disclose to it the normal value calculations on the basis of grounds which were not the basis for that refusal.

(see paras 150, 151)

10.    In the combined application of Articles 19 and 20 of basic anti-dumping Regulation No 1225/2009, the institutions must ensure compliance with the principles of sound administration and equal treatment.

The general principle of equal treatment is given particular application in the context of Article 9(5) of the basic anti-dumping regulation. A difference in treatment is based on an objective and reasonable criterion when the difference relates to a legally permitted aim pursued by the legislation in question and it is proportionate to the aim pursued by the treatment concerned.

The fact that the similar-country producer has given permission, within the meaning of Article 19(5) of the basic anti-dumping regulation, for a producer/exporter to consult its data constitutes an objective difference from the other producers/exporters included in the sample, justifying a difference in treatment having regard to the confidentiality of the normal value calculations based on those data. Without such permission, Article 19(5) of the basic regulation requires the institutions not to disclose information in respect of which confidential treatment has been requested. By contrast, where such permission has been given, the producer/exporter concerned has, at the very least, the right to have the merits of its application examined on the basis of a balancing between its defence rights and the interests protected by the confidentiality of the information sought.

The scope of such permission cannot be called into question by the fact that the permission can concern only data provided by the similar-country producer and not the normal value calculations established on the basis of those data, where those calculations have been blanked out by the Commission precisely in order to protect the confidentiality of those data.

Nor is it possible to accept the argument that such permission is irrelevant in relation to information that is confidential by nature, within the meaning of Article 19(1) of the basic anti-dumping regulation. It is clear from Article 19(5) of that regulation that the permission covered by that provision concerns any information in respect of which a request for confidential treatment has been submitted. Moreover, the wording of Article 19(1) of that regulation does not exclude the possibility that the category of information which is confidential by nature may include information in respect of which the person who provided it made a request for confidential treatment. Finally, in so far as the disclosure of information that is confidential by nature cannot be excluded in certain cases, the fact that that disclosure has been authorised by the person who provided the information in question is necessarily relevant.

That interpretation is corroborated by the wording of Article 6.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the Anti-dumping Agreement’), which is reproduced in substance by Article 19 of the basic anti-dumping regulation, according to which the permission given to the investigating authorities by the supplier of the confidential information refers both to information that is confidential by nature and information that is provided on a confidential basis by parties to an investigation.

(see paras 156-158, 177, 178, 180, 182-188)

11.    In the context of an anti-dumping investigation, there is no support in the relevant provisions of basic anti-dumping Regulation No 1225/2009 for the argument that it is not possible to waive the confidentiality of a piece of information as regards a specific interested party.

First of all, it does not follow from the wording of Article 19(5) of the basic regulation that the authorisation of the person that provided the information, which is required for the disclosure of any information for which that person submitted a confidentiality request, could not be given to one or several specific interested parties only.

Next, it is clear from the grounds for confidentiality listed by way of guidance in Article 19(1) of the basic regulation that the assessment of the confidential character of information provided in the context of an anti-dumping investigation can involve taking into account the respective situation of both the person supplying the information and the interested parties to whom it might be disclosed.

However, it does not follow from the wording of Article 19(1) of the basic regulation that the protection of such information requires the exclusion, on principle, of any possibility of disclosing that information and therefore any assessment of the particular situation of the interested party who requests access to that information.

Such an interpretation is also not supported by the case-law on the protection of business secrets. Where the nature of the procedure requires it, the interests safeguarded by the special protection which business secrets enjoy must be balanced against the defence rights of the interested parties to that procedure. That is the case in an anti-dumping investigation procedure, which 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.

The discretion that is left to the Commission to reconcile the interested parties’ right to information and the protection of confidential information is not restricted where the interested party in question is a producer/exporter which had not obtained the status of a company operating in a market economy.

In particular, in the same way as any interested party, such an exporting producer’s request for disclosure of those calculations cannot be met with a refusal on principle without an examination of the particular circumstances of the case, on the sole ground that the possibility of granting that disclosure would create a ‘systemic imbalance’ in the relations between, on the one hand, the Commission and, on the other hand, the undertakings participating in the investigation, such as, in particular, the producers which did not obtain the statues of companies operating in a market economy and the similar-country producer.

Finally, it does not follow from Article 20(2) to (4) of the basic anti-dumping regulation that the institutions are prevented from providing disclosure to a specific interested party which requests information that was omitted in that final disclosure, on the ground that all the interested parties must have access to it. In particular, disclosure to an interested party of information of the type falling within Article 20(2) and (4) of the basic regulation cannot be refused on the sole ground that other interested parties would equally have the right to have access to it, if those other parties have not submitted a request to that effect.

It follows from the above that it is for the Commission to assess a request for access to confidential information having regard to the particular situation of the interested party making that request, and independently of the situation of other interested parties to whom that information might be useful.

A contrary interpretation would lead to a restriction in principle of the information available to interested parties to an anti-dumping investigation, which would be incompatible with the obligations flowing from compliance with defence rights, and would amount, in cases such as the present, to depriving the producer/exporter concerned of information likely to be of the utmost importance for its defence rights, having regard to the impact of the normal value calculation on the determination of its dumping margin.

(see paras 159-162, 164, 165, 167, 168, 170, 171, 175)

12.    In the context of implementing rules of the World Trade Organisation (WTO), the primacy of international agreements concluded by the European Union over secondary EU legislation requires that the latter be interpreted, in so far as is possible, in conformity with those agreements. That consideration applies, in particular, in cases concerning anti-dumping where it is established that the provision under consideration of basic anti-dumping Regulation No 1225/2009 was adopted in order to implement a specific obligation assumed in the context of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the ‘Anti-dumping Agreement’).

It follows from the very wording of Article 19(1) and (5) of the basic anti-dumping regulation, which in substance reproduce Article 6.5 of the Anti-dumping Agreement, that the EU legislature manifested in those provisions its intention to give effect to the specific obligations flowing from that provision of the Anti-dumping Agreement. The fact that the EU legislature chose to adopt a different structure from that of Article 6.5 of the Anti-dumping Agreement, in particular by reproducing the two parts of that article in two different paragraphs of Article 19 of the basic regulation, does not, in itself, reveal an intention on the part of the EU legislature to adopt an approach specific to the EU legal order, distinct from that of the Anti-dumping Agreement. That choice fell within the margin of discretion available to the EU legislature when implementing the obligations arising under Article 6.5 of the Anti-dumping Agreement, such that it is not capable of precluding Article 19(1) and (5) of the basic regulation from being interpreted in the light of that provision of the Anti-dumping Agreement.

(see paras 188, 190)