Appeal brought on 23 April 2023 by Hengshi Egypt Fiberglass Fabrics SAE and Jushi Egypt for Fiberglass Industry SAE against the judgment of the General Court (First Chamber, Extended Composition) delivered on 1 March 2023 in Case T-301/20, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission

(Case C-261/23 P)

Language of the case: English

Parties

Appellants: Hengshi Egypt Fiberglass Fabrics SAE and Jushi Egypt for Fiberglass Industry SAE (represented by: B. Servais and V. Crochet, avocats)

Other parties to the proceedings: European Commission and Tech-Fab Europe eV

Form of order sought

The appellants claim that the Court should:

annul the judgment under appeal,

accept the first, third and fifth parts of the first plea in law at first instance, and

order the Appellee and any intervening party to pay the costs including those incurred at first instance.

Pleas in law and main arguments

In the judgment under appeal, the General Court dismissed the action for annulment brought by the appellants against Commission Implementing Regulation (EU) 2020/492¹ of 1 April 2020 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt.

In support of the present appeal, the Appellants rely on three grounds of appeal, namely that:

First ground of appeal: the General Court erred in law when it concluded that since the price of glass fibre roving in Hengshi’s records was not at arm’s length, that price had to be adjusted under the second condition of the first subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation¹ .

Second ground of appeal: the General Court misinterpreted and misapplied the second subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation when ruling that the Commission was justified in making an adjustment to the cost of Hengshi’s glass fibre roving on “any other reasonable basis” and misapplied the law when it decided that the Commission did not infringe its obligation to state reasons and mistakenly accepted reasons brought up for the first time before the General Court.

Third ground of appeal: the General Court erred in law when it ruled that the Commission did not impose an anti-dumping duty which exceeds the dumping margin and, hence, did not infringe Article 9(4) of the Basic Anti-Dumping Regulation.

With regard to the first ground of appeal, the Appellants in essence submit that the General Court erred in law when it concluded that since the price of glass fibre roving in Hengshi’s records was not at arm’s length, that price could not be regarded as reasonably taking into account the costs associated with the production and sale of the product under consideration, and that, consequently, that price had to be adjusted under the second condition of the first subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation. In particular, the Appellants submit that the General Court did not draw the correct conclusion from the fact that the second condition of the first subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation must be interpreted narrowly. Furthermore, the General Court did not reach the right conclusion from the fact that the second condition of the first subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation must be interpreted in light of Article 2.2.1.1 of the WTO Anti-Dumping Agreement as interpreted by the WTO Dispute Settlement Body.

With regard to the second ground of appeal, the Appellants submit two arguments. First, they contend that the General Court erred in law when it held that the Commission was justified in making an adjustment to the cost of Hengshi’s glass fibre roving on “any other reasonable basis” in accordance with the exception provided for in the second subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation because that exception must be interpreted strictly. Second, the Appellants contend that the General Court misapplied the law when it decided that the Commission did not infringe its obligation to state reasons for making the aforementioned adjustment because the General Court misconstrued the relevant statement of the Contested Regulation allegedly explaining why it had to resort to the exception provided in the second subparagraph of Article 2(5) of the Basic Anti-Dumping Regulation and was incorrect in finding that the reasons relating to the “comparability” of Hengshi and Jushi were “merely a background matter”.

With regard to the third ground of appeal, the Appellants submit that for the reasons explained in the first and second grounds of appeal, the General Court erred in law by considering that the Appellants did not demonstrate that the Commission committed errors of law or a manifest error of assessment when establishing Hengshi’s constructed normal value. As a result, the General Court also erred in law when it ruled that the Commission did not impose an anti-dumping duty which exceeds the dumping margin and, hence, did not infringe Article 9(4) of the Basic Anti-Dumping Regulation.

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¹ OJ 2020, L 108, p. 1.

¹ 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).