Case T‑126/21
AO Nevinnomysskiy Azot
and
AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’
v
European Commission
Judgment of the General Court (Fifth Chamber, Extended Composition), 5 July 2023
(Dumping – Imports of ammonium nitrate originating in Russia – Definitive anti-dumping duties – Request for an expiry review – Article 11(2) of Regulation (EU) 2016/1036 – Article 5(3) and (9) of Regulation 2016/1036 – Legal time limit – Sufficiency of the evidence – Deficiency procedure – Information submitted outside the legal time limit)
1. Judicial proceedings – Production of evidence – Time limit – Late submission of evidence and offers of evidence – Conditions – Evidence produced in the course of the proceedings in response to the arguments put forward by the defendant in response to the written questions put by the Court – Admissibility
(Rules of Procedure of the General Court, Arts 85(2) and (3) and 92(7))
(see paragraphs 18-25)
2. Common commercial policy – Protection against dumping – Discretion of the institutions – Judicial review – Limits
(see paragraphs 29, 30)
3. EU law – Interpretation – Methods – Interpretation in the light of the international agreements concluded by the Union – Interpretation of Regulation 2016/1036 in the light of the 1994 GATT Anti-Dumping Agreement – Account taken of the interpretation adopted by the Dispute Settlement Body
(General Agreement on Tariffs and Trade 1994; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994 Anti-Dumping Agreement), Art. 2.2.1.1; European Parliament and Council Regulation 2016/1036, recitals 2, 3 and 4, Arts 5 and 11(2))
(see paragraphs 32-36)
4. Common commercial policy – Protection against dumping – Request for an expiry review made by or on behalf of Union producers – Legal time limit – Requirement to make the request no later than three months before the expiry of the anti-dumping measures – Assessment by the Commission of the conditions for initiating a review – Conditions – Request must contain sufficient evidence of the likelihood of a continuation or recurrence of dumping and injury if the anti-dumping measures were allowed to expire
(European Parliament and Council Regulation 2016/1036, Art. 11(2))
(see paragraphs 65-70, 72, 103, 104, 126)
5. Common commercial policy – Protection against dumping – Request for an expiry review made by or on behalf of Union producers – Legal time limit – Requirement to make the request no later than three months before the expiry of the anti-dumping measures – Possibility for the Commission to request supplementary information after the legal time limit – Limits – Information can only supplement or corroborate the evidence submitted within the legal time limit
(European Parliament and Council Regulation 2016/1036, Art. 11(2))
(see paragraphs 71, 73-77)
6. Common commercial policy – Protection against dumping – Expiry review procedure – Distinction from the original investigation procedure
(European Parliament and Council Regulation 2016/1036, Arts 5(3) and (9) and 11(5))
(see paragraphs 80-92, 101)
7. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Factor to which regard must primarily be had – Price charged in the ordinary course of trade – Exemptions provided for by the basic anti-dumping regulation – Hierarchy of methods for determining the normal value
(European Parliament and Council Regulation 2016/1036, Art. 2(1), first and second subparas, and (3), first para.)
(see paragraphs 116-120)
Résumé
In 2018, following an interim review of the dumping measures applied to imports of ammonium nitrate originating in Russia (‘the product concerned’), the European Commission adopted Implementing Regulation 2018/1722 maintaining a definitive anti-dumping duty on those imports. (1)
On 21 June 2019, the Commission received a request for the initiation of an expiry review of those anti-dumping measures, on the basis of Article 11(2) of Regulation (EU) 2016/1036 (2) (‘the original request’), lodged by Fertilizers Europe, an association of European fertiliser manufacturers. On 20 August 2019, at the request of the Commission, Fertilizers Europe provided additional information that was incorporated into a consolidated version of the original request.
The Commission took the view that there was sufficient evidence to initiate an expiry review and to carry out an investigation. Following that investigation, it decided to extend the measures at issue for a period of five years by adopting Implementing Regulation (EU) 2020/2100 imposing a definitive anti-dumping duty on imports of the product concerned originating in Russia (3) (‘the contested regulation’).
AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’, two companies established in Russia that produce and export the product concerned, brought an action for annulment of the contested regulation.
By its judgment, delivered in a chamber sitting in extended composition, the General Court upholds that action and annuls the contested regulation. On this occasion, it clarifies the content of a request for an expiry review of anti-dumping measures made by or on behalf of Union producers on the basis of Article 11(2) of the basic regulation, as well as the nature of the additional information that may be submitted by a complainant during the three months preceding the date on which the anti-dumping measures concerned are to expire.
Findings of the Court
In support of their action, the applicants claim, inter alia, that the Commission erred in initiating the expiry review procedure in spite of the lack of sufficient evidence to do so, thereby disregarding the requirements of Article 11(2) of the basic regulation.
In that regard, it follows from that provision that a request for a review must be made by or on behalf of Union producers no later than three months before the date on which the anti-dumping measures are to expire (‘the legal time limit’). Moreover, such a request must contain, no later than that date, sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury in order to justify the initiation of the review.
According to the Court, the requirements thus defined in respect of the legal time limit serve a dual purpose. That system contributes, first, to ensuring legal certainty, by enabling market operators to know, in good time, whether the anti-dumping measures are likely to be maintained. Second, it enables the Commission to assess the evidence contained in the request for a review, as made within the legal time limit, and to ascertain whether the evidence is sufficient and relevant, before deciding whether or not to initiate the review. To that end, the Commission is allowed to receive or request additional information after the legal time limit and during the three months preceding the date on which the anti-dumping measures in question are to expire, resulting in a consolidated version of the request. That being so, such additional information can only supplement or corroborate the sufficient evidence submitted within the legal time limit; it cannot therefore constitute new evidence or remedy the insufficiency of the evidence submitted within that time limit.
Consequently, the Court holds that the Commission erred in considering that the three months preceding the date on which the anti-dumping measures were to expire were included in the legal time limit and that the condition relating to the sufficiency of the evidence had to be satisfied only at the time the decision to initiate the expiry review was taken.
Lastly, the Court considers that the interpretation thus given to Article 11(2) of the basic regulation cannot be called into question by the other provisions of the basic regulation with regard to the procedures and conduct of investigations that apply in the context of the original investigation, such as Article 5(3) and (9) of that regulation.
Article 5(9) of the basic regulation, under which the Commission is to initiate proceedings ‘where it is apparent that there is sufficient evidence to justify’ such initiation, concerns the time limits for the initiation of original anti-dumping investigations; it cannot therefore apply to expiry review procedures, in accordance with Article 11(5) of that regulation.
Article 5(3) of the basic regulation, for its part, refers only to the examination, by the Commission, of the accuracy and adequacy of the evidence contained in a complaint in order to determine whether there is sufficient evidence to justify the initiation of an original investigation. Nothing in that provision indicates that the evidentiary standards laid down therein apply to proceedings other than the initiation of original anti-dumping investigations, or that those standards may be applicable to expiry review investigations following a request for a review made by or on behalf of Union producers.
In the light of the foregoing considerations, it follows, in the present case, that the original request, lodged by Fertilizers Europe within the legal time limit, had to satisfy the condition relating to the sufficiency of the evidence contained in a request for a review and that the additional information submitted after the legal time limit, but during the three months preceding the date on which the anti-dumping measures were to expire, could only supplement or corroborate that evidence.
In this case, the Court finds that there are substantial differences between the evidence set out in the original request for the calculation of the dumping margin and the evidence set out in the additional information. Although the evidence set out in the original request was based on a constructed normal value, the evidence contained in the additional information related to a normal value determined on the basis of actual domestic prices on the Russian market.
It follows that the evidence contained in the additional information, which is, moreover, based on a different calculation method and different data, as well as having a separate legal basis and relating to different circumstances, cannot therefore be regarded as a mere clarification of the evidence contained in the original request. Rather, it is new evidence which substantially altered the determination of the dumping margins as established in the original request and altered the substance of the original request. Since that evidence was filed after the expiry of the legal time limit, the Commission could not rely on it in deciding to initiate the expiry review.
It follows explicitly from the Court’s considerations regarding the contested regulation, the notice of initiation and the Commission’s observations that the contested regulation cannot be read as establishing that the original request contained sufficient evidence that the expiry of the measures would likely result in a continuation of dumping. By contrast, it is apparent from the contested regulation that, without the clarifications contained in the additional information, incorporated into the consolidated version of the original request, the Commission would not necessarily have initiated the expiry review. In those circumstances, the Court considers that the request made by the Commission to the intervener for the purposes of obtaining a normal value determined on the basis of the actual prices on the Russian domestic market cannot be understood as being intended to supplement the evidence set out in the original request, since that evidence was based solely on a constructed normal value, but was intended to remedy a lack of information. In addition, it is not for the Court to substitute its own assessment of whether the evidence contained in the original request is sufficient for the Commission’s assessment as set out in the notice of initiation and the contested regulation. The conditions for initiating that review were therefore not satisfied and, consequently, the contested regulation must be annulled for infringement of Article 11(2) of the basic regulation.