JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 September 2013 (*)
(Dumping – Imports of polyester staple fibres originating in China – Maintenance of anti-dumping duties following a partial interim review – Action for annulment – Direct and individual concern – Admissibility – Equal treatment and non‑discrimination – Article 9(5) and Article 21(1) of Regulation (EC) No 384/96 (now Article 9(5) and Article 21(1) of Regulation (EC) No 1225/2009))
In Case T‑537/08,
Cixi Jiangnan Chemical Fiber Co. Ltd, established in Cixi (China),
Cixi Santai Chemical Fiber Co. Ltd, established in Cixi,
Cixi Sansheng Chemical Fiber Co. Ltd, established in Cixi,
Jiangyin Changlong Chemical Fibre Co. Ltd, established in Jiangyin (China),
NingBo Dafa Chemical Fiber Co. Ltd, established in Cixi,
Xiake Color Spinning Co. Ltd, established in Jiangyin,
Zhejiang Waysun Chemical Fiber Co. Ltd, established in Cixi,
Zhejiang Anshun Pettechs Fibre Co. Ltd, established in Fuyang (China),
represented initially by J.-F. Bellis, lawyer, and G. Vallera, Barrister, and subsequently by J.-F. Bellis, A. Scalini and F. Di Gianni, lawyers,
applicants,
v
Council of the European Union, represented by J.-P. Hix and B. Driessen, acting as Agents, and initially by G. Berrisch and G. Wolf, lawyers, and subsequently by G. Berrisch,
defendant,
supported by
European Commission, represented initially by M. França and H. van Vliet, and subsequently by M. França and J.-F. Brakeland, acting as Agents,
intervener,
ACTION for annulment of Council Regulation (EC) No 893/2008 of 10 September 2008 maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People’s Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2008 L 247, p. 1), as regards the applicants,
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen (Rapporteur), President, S. Soldevila Fragoso and G. Berardis, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 15 April 2013,
gives the following
Judgment
Background to the dispute
1 The applicants, Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, NingBo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd and Zhejiang Anshun Pettechs Fibre Co. Ltd are undertakings under Chinese law. They produce and export, in particular to the European Union, polyester staple fibres (‘PSF’).
The review and the measures concerning the imports of PSF originating in, inter alia, China, pertaining to the present case
2 By Regulation (EC) No 428/2005 of 10 March 2005 imposing a definitive anti‑dumping duty on imports of PSF originating in the People’s Republic of China and Saudi Arabia, amending Regulation No 2852/2000 imposing a definitive anti-dumping duty on imports of PSF originating in the Republic of Korea and terminating the anti‑dumping proceeding in respect of such imports originating in Taiwan (OJ 2005 L 71, p. 1), the Council of the European Union imposed, inter alia, definitive anti-dumping duties on imports of PSF originating in China. Under Article 1 of that regulation, the rates of anti‑dumping duty imposed on Cixi Jiangnan Chemical Fiber, Jiangyin Changlong Chemical Fiber and the other Chinese companies were 26.3%, 24.6% and 49.7%, respectively.
3 Having established that the evidence was, at first sight, sufficient for a conclusion that keeping the measures in force was not appropriate since it could be contrary to the Community interest, on 30 August 2007 the Commission of the European Communities initiated ex offficio, by a notice published in the Official Journal of the European Union (OJ 2007 C 202, p. 4), a partial interim review of the measures in force at that date, applicable to the imports of PSF originating in Belarus, South Korea, Saudi Arabia and China. The review was carried out pursuant to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended (‘the basic regulation’) (replaced by 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)) and in particular pursuant to Article 11(3) of the basic regulation (now Article 11(3) of Regulation No 1225/2009), and merely examined whether maintaining those measures was contrary to the Community interest.
4 On 10 September 2008, the Council adopted Regulation (EC) No 893/2008 maintaining the anti-dumping duties on imports of PSF originating in Belarus, the People’s Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of the basic regulation (OJ 2008 L 247, p. 1, ‘the contested regulation’).
The investigation and the measures concerning the imports of PSF originating in Malaysia and Taiwan
5 On 3 March 2006, the Commission received a complaint, under Article 5 of the basic regulation (now Article 5 of Regulation No 1225/2009), concerning injurious dumping of imports of PSF originating in Malaysia and Taiwan.
6 After an anti-dumping investigation which was initiated on 12 April 2006, the Commission imposed, by means of Regulation (EC) No 2005/2006 of 22 December 2006, provisional anti-dumping duties on imports of PSF originating in Malaysia and Taiwan (OJ 2006 L 379, p. 65).
7 By a letter dated 23 May 2007 sent to the Commission, the complainant withdrew its complaint concerning the imports of PSF originating in Malaysia and Taiwan.
8 On 19 June 2007, the Commission adopted Decision 2007/430/EC terminating the anti-dumping proceeding concerning imports of PSF originating in Malaysia and Taiwan and releasing the amounts secured by way of the provisional duties imposed (OJ 2007 L 160, p. 30). It stated that it had arrived at the conclusion that there were compelling reasons of Community interest not to impose anti-dumping measures on imports of PSF from the countries concerned.
Procedure and forms of order sought by the parties
9 By application lodged at the Registry of the General Court on 9 December 2008, the applicants brought the present action.
10 By document lodged at the Court Registry on 1 April 2009, the Commission sought leave to intervene in the present case in support of the form of order sought by the Council. By order of 3 June 2009, the President of the First Chamber of the Court granted leave to intervene.
11 By letter lodged at the Court Registry on 17 June 2009, the Commission stated that although it would not file a statement in intervention it would attend the hearing.
12 By document lodged at the Court Registry on 20 April 2009, the Gesamtverband der Deutschen Textil und Modeindustrie eV (‘the Gesamtverband’), Lück GmbH & Co. KG, Sandler AG, FAN Frankenstolz, H. Neumeyer GmbH & Co. KG (‘Frankenstolz’) and Cetex-Rheinfaser GmbH sought leave to intervene in the present case in support of the form of order sought by the applicants. By document lodged at the Court Registry on 15 May 2009, that application was put in order and Frankenstolz stated, at that time, that it was withdrawing its application for leave to intervene in the present case. The application for leave to intervene of the Gesamtverband, Lück, Sandler and Cetex‑Rheinfaser was served on the parties in accordance with the first subparagraph of Article 116(1) of the Rules of Procedure of the General Court, together with the letter whereby Frankenstolz withdrew its application for leave to intervene in the present case. Within the period prescribed for the purpose, the Council objected to the application for leave to intervene of the Gesamtverband, Lück, Sandler and Cetex‑Rheinfaser, whereas the applicants stated that they had no objections to that application. Neither the applicants nor the Council submitted observations on Frankenstolz’s letter withdrawing its application for leave to intervene in the present case.
13 By order of 14 December 2010, the President of the Eighth Chamber of the General Court rejected the application for leave to intervene of the Gesamtverband, Lück, Sandler and Cetex-Rheinfaser. Frankenstolz was removed from the case as an applicant for leave to intervene.
14 As the Gesamtverband, Lück and Sandler brought an appeal against that order before the Court of Justice on 3 January 2011, registered as Case C-3/11 (P)I, the proceedings in the present case were stayed by order of 28 February 2011 of the President of the Eighth Chamber of the General Court, pending the decision closing Case C-3/11 (P)I.
15 That appeal was dismissed by order of the President of the Court of Justice of 17 October 2011 in Case C-3/11 P(I) Gesamtverband der deutschen Textil- und Modeindustrie and Others v Council and Others, not published in the ECR.
16 When the composition of the chambers of the General Court was altered, the Judge-Rapporteur was assigned to the Sixth Chamber, to which this case was consequently assigned.
17 By letter lodged at the Court Registry on 4 March 2013, the applicants replied to a question from the Court, put by way of measures of organisation of procedure, concerning the arguments raised by the Council based on the possible inadmissibility of the action.
18 The applicants claim that the Court should:
– annul the contested regulation in so far as it does not repeal the anti‑dumping duty applicable to them with effect from 29 December 2006, that is the date on which imports of PSF originating in Taiwan and Malaysia were made subject to provisional anti-dumping duties, which the Commission decided, in its Decision No 2007/430, not to collect;
– order the Council to pay the costs.
19 The Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
Admissibility
20 The Council questions the admissibility of the action, on the ground that the applicants are not individually concerned by the contested regulation. It points out that neither the applicants nor the data supplied by them prompted the investigation or formed part of the raison d’être of the contested regulation. It adds that the partial interim review investigation that resulted in the adoption of the contested regulation was initiated by the Commission ex officio and that that review was limited to assessing whether the continued imposition of anti-dumping measures imposed on imports of PSF originating in, inter alia, China was not against the Community interest. The applicants were not among the interested parties which submitted complete replies to the questionnaire sent by the Commission during the investigation. The Council points out that, as regards the Chinese exporters, only the Chinese Chamber of Commerce for the Import and Export of Textile (‘CCCT’) submitted observations.
21 In their letter of 4 March 2013 (see paragraph 17 above), the applicants stated that they had participated in the investigation, as exporting producers of the product concerned. They stated that they were members of the CCCT and that they had been concerned by the procedure since, during the course of the partial interim review, they had, through the CCCT, submitted to the Commission several letters and presented their comments on the Commission’s general disclosure document. They also submitted that they were actively involved in the proceedings leading to the imposition of the anti-dumping duties by Regulation No 428/2005. They noted, in that regard, that three of their number, Cixi Jiangnan Chemical Fiber, Jiangyin Changlong Chemical Fibre and Xiake Color Spinning, were companies for which verification visits had been carried out and that specific anti-dumping duties had been applied to the first two companies. Furthermore, they stated that if their action were declared inadmissible, they would be deprived of their right of access to any form of judicial review.
22 In that regard, it is apparent from settled case-law that regulations imposing an anti‑dumping duty, although by their nature and scope of a legislative nature, are liable to be of direct and individual concern to in particular those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations, or to those importers whose resale prices for the products in question form the basis of the constructed export price, where the exporter and the importer are associated (see Case C-239/99 Nachi Europe [2001] ECR I-1197, paragraph 21 and the case-law cited, and judgment of 21 March 2012 in Case T‑115/06 Fiskeri og Havbruksnæringens Landsforening and Others v Council, not published in the ECR, paragraph 27).
23 In the present case, it is not disputed that, in recital 10 of the contested regulation, the CCCT, the association of which the applicants are members, is referred to or that that association made its views known during the investigation. However, it is not apparent either from the contested regulation or from the documents added to the file by the CCCT that the applicants are identified therein or that they were concerned by the preliminary investigations.
24 It must be added that, as stated in its sole article, the contested regulation terminates the partial interim review of the anti‑dumping measures applicable, inter alia, to China, without amending the anti‑dumping measures in force. It therefore maintains the anti-dumping measures imposed by Regulation No 428/2005 in respect of the Chinese exporting producers.
25 It is clear that three of the applicants are identified in Regulation No 428/2005. In recital 17(c) thereof, Cixi Jiangnan Chemical Fiber, Jiangyin Changlong Chemical Fibre and Xiake Color Spinning are referred to as exporting producers from China. In addition, in recital 289 of that regulation, specific anti‑dumping duties of 26.3% and 24.6% are imposed on the first two companies respectively and a rate of 49.7% on the third. The first two companies are also expressly referred to in Article 1(2) of Regulation No 428/2005, which summarises, in tabular form, the various anti-dumping rates imposed by that regulation.
26 It must therefore be held that the action is admissible in so far as it has been brought by Cixi Jiangnan Chemical Fiber, Jiangyin Changlong Chemical Fibre and Xiake Color Spinning, since they have been identified in the measures of the Council and the Commission pertaining to the anti‑dumping duties in question and were concerned by the preliminary investigations.
27 If the action were declared inadmissible in relation to those applicants, that would have the illogical result that they could challenge the initial regulation imposing the anti-dumping duties, but would no longer be entitled, after the review, to challenge the new regulation adopted, even though the latter simply maintains the anti‑dumping duties and those applicants continue to be subject to them.
28 However, the five other applicants, namely Cixi Santai Chemical Fiber, Cixi Sansheng Chemical Fiber, NingBo Dafa Chemical Fiber, Zhejiang Waysun Chemical Fiber and Zhejiang Anshun Pettechs Fibre, are not identified in Regulation No 428/2005. As regards Zhejiang Anshun Pettechs Fibre, Regulation No 428/2005 refers only to a group, Anshun Pettechs, and it has not been proved that that applicant belongs to that group. In addition, it cannot be concluded from any of the evidence in the documents placed on the file that those five applicants were concerned by the preliminary investigations.
29 The action must therefore be declared to be inadmissible in so far as it has been brought by Cixi Santai Chemical Fiber, Cixi Sansheng Chemical Fiber, NingBo Dafa Chemical Fiber, Zhejiang Waysun Chemical Fiber and Zhejiang Anshun Pettechs Fibre.
The pleas of inadmissibility raised by the Council
30 First, the Council states that, in their actions, the applicants have sought the retroactive annulment of the contested regulation with effect from two different dates. It notes that, in paragraph 17 of the application, they seek the annulment with retroactive effect from 22 June 2007, the date on which Decision 2007/430 entered into force, while, in paragraph 49 of the application, they also seek the retroactive annulment with effect from 29 December 2006, the date on which the provisional anti-dumping duties were imposed on the imports of PSF originating in Malaysia and Taiwan. Such a ‘lack of clarity and consistency’ justifies the contention that the application is inadmissible. Furthermore, the annulment of an act can only take effect at the earliest from the time when the act enters into force and the contested regulation entered into force on 17 September 2008. The request for retroactive annulment shows that the applicants’ action is against Decision 2007/430 and not the contested regulation.
31 Secondly, the Council submits that the action is inadmissible in that the applicants seek the annulment of the contested regulation in its entirety, whereas it is possible for them to challenge that regulation only in so far as it affects them individually.
32 It must be noted that, at the hearing, the applicants clarified that they were not seeking the annulment of the contested regulation with retroactive effect, but were seeking annulment only on the ground that the regulation does not repeal the anti‑dumping duties concerned as from 29 December 2006. Similarly, they stated that they sought the annulment of the contested regulation only in so far as it concerns them.
33 There is therefore no need to rule on the pleas of inadmissibility raised by the Council in relation to the retroactive effect of the annulment or on the form of order seeking the annulment of the contested regulation in its entirety.
Substance
34 In support of their actions, the applicants raise two pleas in law, the first alleging infringement of the principle of non-discrimination and the second alleging inconsistencies and contradictions in the Community interest assessment.
The first plea in law, alleging infringement of the principle of non‑discrimination
35 The applicants challenge the grounds by which the Council rejected, in recitals 88 to 90 in the preamble to the contested regulation, the arguments put forward by some of the interested parties during the administrative procedure, which sought to show that keeping the measures in force was discriminatory. In those recitals, the Council stated as follows:
‘(88) First, it is underlined that in the case of Malaysia and Taiwan the complaint was withdrawn and that no definitive finding was made by the Council as to the adequacy of imposing anti-dumping duties. As a result, there is no discrimination.
(89) Second, the nature of the legal tests regarding Community interest under Articles 9(1) (applicable in the Taiwan and Malaysia case) and 21 (applicable in the current case) of the basic Regulation is different. Under the former, the test is whether the balance of interests at hand is so positive that the Commission should continue the proceedings ex officio even in the absence of a supported complaint. Under the latter, the test is whether the balance of interests is so negative that measures should be terminated. Therefore, the different nature of the tests implies that there can be no discrimination.
(90) Third, even in the hypothetical situation of a definitive decision taken by the Council concerning a non-imposition of anti‑dumping duties on imports of PSF originating in Malaysia and Taiwan, there would be no discrimination in this case, given that the said principle is applicable only if similar conclusions are reached for different investigations concerning the same product. In other words, compliance with the principle of non‑discrimination as set out in Article 9(5) the basic Regulation and Article 9(2) of the WTO Anti-dumping agreement requires that comparable situations must not be treated differently, and that different situations must not be treated in the same way. As explained above, the facts and conclusions in the present investigation are radically different from the facts and conclusions in the case of Malaysia and Taiwan and, consequently, the two situations are not comparable.’
36 In their first plea in law, the applicants rely on (i) Article 9(5) of the basic regulation (now Article 9(5) of Regulation No 1225/2009), (ii) Article 9.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the anti-dumping agreement’), which appears as Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3) and (iii) Article 21 of the basic regulation (now Article 21 of Regulation No 1225/2009) which, it is alleged, constitutes the implementation into Community law of the principle laid down in Article 9.1 of the anti-dumping agreement.
37 After referring to several judgments of the Court applying the general principle of equal treatment and non-discrimination in anti-dumping cases and to the report of the WTO Appellate Body concerning the dispute ‘European Communities - Regime for the Importation, Sale and Distribution of Bananas’, adopted on 25 September 1997 (WT/DS27/AB/R), the applicants submit that the institutions treated differently imports of PSF originating in Malaysia and Taiwan and those originating in, inter alia, China. They state that the institutions did not impose anti-dumping measures with respect to the imports originating in Malaysia and Taiwan even though they had found that both those imports and the imports originating in, inter alia, China had been dumped and were causing injury.
38 As regards recital 88 of the contested regulation, the applicants submit that for the purposes of establishing the existence of discrimination, it is irrelevant that the decision not to impose anti‑dumping measures on PSF originating in Taiwan and Malaysia is the result of the withdrawal of a complaint and that the Council did not endorse the Commission’s final determinations. In the first place, the applicants rely in that regard on: (i) Commission Decision 86/536/EEC of 7 November 1986 terminating the anti‑dumping proceeding concerning imports of certain tube and pipe fittings originating in Brazil, Taiwan, Yugoslavia and Japan (OJ 1986 L 313, p. 20), (ii) Commission Regulation (EC) No 367/2001 of 23 February 2001 imposing a provisional anti-dumping duty on imports of polyethylene terephthalate film originating in India and the Republic of Korea (OJ 2001 L 55, p. 16) and (iii) Commission Regulation (EC) No 1662/2002 of 18 September 2002 imposing provisional anti‑dumping duties on imports of certain filament yarns of cellulose acetate originating in Lithuania and the United States of America (OJ 2002 L 251, p. 9). In the second place, they rely on (i) the Report from the Commission of 23 May 2007 in respect of the anti-dumping proceeding concerning imports of PSF originating in Malaysia and Taiwan (COM(2007) 272 final), (ii) Council Regulation (EC) No 1616/2004 of 13 September 2004 terminating the anti-dumping proceedings concerning imports of certain flat-rolled products of iron or non-alloy steel, of a width of 600 mm or more, not clad, plated or coated, in coils, not further worked than hot-rolled, originating in Bulgaria and South Africa (OJ 2004 L 294, p. 3) and (iii) Council Regulation (EC) No 173/2000 of 24 January 2000 terminating the anti‑dumping proceedings concerning imports of certain large aluminium electrolytic capacitors originating in Japan, the Republic of Korea and Taiwan (OJ 2000 L 22, p. 1).
39 As regards recitals 89 and 90 of the contested regulation, the applicants submit that it is irrelevant for the purposes of establishing the existence of discrimination that the institutions took the view that the balance of interests was positive in the case of the imports from Malaysia and Taiwan and negative in that of those from, inter alia, China.
40 The Council, supported by the Commission, challenges the first plea in law, contending that it is incorrect in fact and in law.
41 It should be recalled that, according to settled case-law, the general principle of equal treatment and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 71, and Case T‑462/04 HEG and Graphite India v Council [2008] ECR II-3685, paragraph 35).
42 Article 9(5) of the basic regulation states that an anti-dumping duty is to be imposed in the appropriate amounts in each case, on a non‑discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except as to imports from those sources from which undertakings under the terms of that regulation have been accepted.
43 The Council contends that Article 9(5) of the basic regulation is not applicable in the present case, since that provision prohibits discriminatory treatment between imports which have all had anti‑dumping duties imposed in respect of imports of the same product. In that regard, the Council relies on the judgment in HEG and Graphite India v Council, paragraph 41 above (paragraph 38).
44 In that connection, it must be noted that in its judgment in HEG and Graphite India v Council, paragraph 41 above (paragraph 38), the General Court held that Article 9(5) of the basic regulation was not applicable where what was at issue was an alleged difference in treatment between imports which have had anti‑dumping duties imposed and imports which have not been the subject of any investigation. However, the case giving rise to that judgment differs from the present case in that the latter concerns, on the one hand, the continuation of the anti‑dumping duties on imports of PSF originating in China and, on the other, the termination of an initial investigation of imports of those products originating in Malaysia and Taiwan.
45 Furthermore, and in any event, Article 9(5) of the basic regulation is an application of the general principle of equal treatment and non‑discrimination. The scope of that provision cannot mean that the institutions of the European Union are not required to comply with that principle when applying the provisions of the basic regulation (HEG and Graphite India v Council, paragraph 41 above, paragraph 41).
46 It must therefore be examined whether the institutions infringed the principle of equal treatment and non-discrimination on the ground that they decided to maintain, by the contested regulation, the anti-dumping duties on imports originating in China, whereas the investigation concerning the imports originating in Malaysia and Taiwan had been terminated by Decision 2007/430 without any anti-dumping duties being imposed.
47 It must be noted that the contested regulation relates to measures which had been in force since 10 March 2005 and were the subject of a partial interim review initiated on 30 August 2007 pursuant to the procedure under Article 11(3) of the basic regulation. By contrast, on 19 June 2007, Decision 2007/430 terminated a proceeding originally initiated on 12 April 2006 in order to examine whether anti-dumping duties should be imposed under Article 9 of the basic regulation. The imports originating in China, on the one hand, and those originating in Malaysia and Taiwan, on the other, were the subject of separate investigations which were not carried out at the same time. The review investigation period for the imports originating in China covered the period from 1 July 2006 to 30 June 2007. As regards the imports originating in Malaysia and Taiwan, an anti-dumping investigation was initiated on 12 April 2006 further to a complaint lodged on 3 March 2006, and provisional anti-dumping duties were imposed on 29 December 2006. After a detailed investigation in that regard, the Commission found that there were compelling reasons on grounds of Community interest not to impose anti-dumping measures, and concluded that the procedure should be terminated. On 23 May 2007, the Commission submitted to the Council a report, together with a proposal that the proceeding be terminated, pursuant to Article 9(2) of the basic regulation (now Article 9(2) of Regulation No 1225/2009). In addition, having received on 23 May 2007 a letter from the complainant informing it that it was formally withdrawing its complaint, on 19 June 2007 the Commission adopted Decision 2007/430, whereby it concluded that the investigation had not revealed any considerations showing that termination would be against the Community interest. The imports originating in China, on the one hand, and those originating in Malaysia and Taiwan, on the other, were therefore the subject of investigations which did not relate to the same period, were not initiated under the same procedure and did not arrive at the same conclusions.
48 According to settled case-law, there is an objective difference between the procedure which led to the adoption of the contested regulation and that which led to the adoption of Decision 2007/430. That difference lies in the fact that imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping, even if the initiation of such an investigation presupposes the existence of sufficient evidence to justify the initiation of that procedure (Case C‑422/02 P Europe Chemi-Con (Deutschland) v Council [2005] ECR I-791, paragraph 50).
49 The difference in treatment in this case may therefore be considered to be justified in substantive terms because, in the light of the relevant provisions of the basic regulation, the imports which gave rise to the imposition of a definitive anti‑dumping duty by the Council were not in the same situation as similar imports from other sources, which were merely the subject of an initial investigation (see, to that effect, Europe Chemi-Con (Deutschland) v Council, paragraph 48 above, paragraph 50).
50 Recitals 89 and 90 of the contested regulation make clear the objective difference between the procedure leading to the adoption of the contested regulation and that leading to the adoption of Decision 2007/430. That difference gave good grounds for finding that the imports giving rise to the imposition of a definitive anti‑dumping duty by the Council were not in the same situation as the imports which had only been the subject of an initial investigation.
51 In addition, the applicants’ line of argument based on infringement of the provisions of the anti-dumping agreement does not show that there has been any infringement of the general principle of equal treatment and non-discrimination.
52 Article 9.2 of the anti-dumping agreement states, ‘[w]hen an anti‑dumping duty is imposed in respect of any product, such anti‑dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted’. The Council contends that that provision is not applicable in the present case for the same reason as that which it is claimed Article 9(5) of the basic regulation is not applicable. In that regard, it is sufficient to note that the complaint alleging infringement of Article 9.2 of the anti-dumping agreement in the present case can no more succeed than that alleging infringement of Article 9(5) of the basic regulation, given the reasoning set out in paragraphs 44 to 50 above.
53 Article 9.1 of the anti-dumping agreement provides as follows:
‘The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition be permissive in the territory of all Members, and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic industry.’
54 As the Council has correctly noted, Article 9.1 of the anti-dumping agreement was not transposed into Community law by Article 21 of the basic regulation and reliance upon it here has no effect on the outcome of the present case, given that Article 21 relates to the Community interest and states, in particular:
‘1. A determination as to whether the Community interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers; and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Community interest to apply such measures.
…’
55 It must be added that, while the applicants refer to the report of the WTO Appellate Body in the case concerning the dispute ‘European Communities - Regime for the Importation, Sale and Distribution of Bananas’ (see paragraph 37 above), they do not argue that that report imposes obligations which are additional to those of Articles 9.1 and 9.2 of the anti-dumping agreement.
56 Lastly, it must be pointed out that the other arguments put forward by the applicants in order to challenge recitals 88 to 90 of the contested regulation – concerning the absence of infringement of the principle of non‑discrimination – do not permit a finding that the action is well founded.
57 None of the cases cited by the applicants, giving rise to a decision of the institutions of the European Union, calls in question recitals 88 to 90 of the contested regulation. Those cases did not concern an equivalent situation to that at issue in the present case.
58 As regards Decision 86/536 and Regulation No 367/2001, in both cases two complaints had been lodged and a single investigative procedure initiated.
59 As regards Regulation No 1662/2002, an anti-dumping proceeding had been initiated after a complaint was lodged which had been found to relate to all the countries from which the imports of the product concerned could have been dumped.
60 As regards Regulation No 1616/2004, this terminated a proceeding without imposing definitive anti-dumping measures, although the imports from the two countries in question were dumped. Two investigations had been carried out in parallel and the proceeding terminated on the basis that the imports from other countries, which had also been dumped, had not been subject to definitive anti‑dumping measures since the Council had failed to adopt, within the time‑limits, the proposal to impose such measures.
61 As regards Regulation No 173/2000, two parallel proceedings were terminated after two review proceedings had been initiated.
62 It follows from all the foregoing that the first plea in law must be rejected as unfounded.
The second plea in law alleging inconsistencies and contradictions in the analysis of the Community interest
63 The applicants criticise the contested regulation and refer to inconsistencies and contradictions in the analysis of the Community interest.
64 First, they argue that, as regards the imports of PSF from, inter alia, China and those of the same products from Malaysia and Taiwan, the institutions should not have used two different reference and investigation periods to establish whether or not the anti-dumping measures were taken in the Community interest, since the purpose of the review that led to the contested regulation was to assess whether the conclusions reached with respect to imports from Malaysia and Taiwan should have been extended to imports from, inter alia, China.
65 Secondly, the applicants refer to recital 58 of the contested regulation, in which the Council found that the situation was no longer the same as that in the previous investigation and that the imposition of new anti‑dumping duties, which could reach almost 30% in certain cases, certainly had a negative effect on the costs structure of PSF users. In the applicants’ opinion, despite those considerations relating to the interest of Community users, the Council decided, inconsistently, to maintain the anti-dumping duties for the import of PSF from, inter alia, China, when those duties were as high and even higher than those envisaged for imports from Taiwan.
66 Thirdly, all those considerations put forward not to impose anti‑dumping duties on imports of PSF from Malaysia and Taiwan ought to have been applied to imports of PSF from, inter alia, China. PSFs are products which cannot be broken down into sub-categories. The applicants criticise the contested regulation in that the Council illogically found that it was not appropriate to apply certain anti‑dumping measures on the ground that the applicable duties were too high, while maintaining in force other lower anti-dumping duties, which, in their view, favours undertakings with the highest dumping margins. The imposition of anti‑dumping duties affects the Community PSF user industry and favours Chinese competition, which means an increase in imports from China of products containing PSFs, which is not in the Community interest.
67 The Council, supported by the Commission, contests the merits of the second plea in law.
68 By their second plea in law, the applicants, in the first place, challenge the contested regulation, submitting that the institutions ought to have used a single reference and investigation period for imports of PSF from China and those of the same products from Malaysia and Taiwan. They argue essentially that the choice of review investigation period in the present case is mistaken.
69 Article 6(1) of the basic regulation provides:
‘Following the initiation of the proceeding, the Commission, acting in cooperation with the Member States, shall commence an investigation at Community level. Such investigation shall cover both dumping and injury and these shall be investigated simultaneously. For the purpose of a representative finding, an investigation period shall be selected which, in the case of dumping shall, normally, cover a period of not less than six months immediately prior to the initiation of the proceeding. Information relating to a period subsequent to the investigation period shall, normally, not be taken into account.’
70 Under Article 6(1) of the basic regulation, the investigation period must therefore cover a period of not less than six months immediately prior to the initiation of the review proceeding.
71 However, in the present case, it is not apparent that there has been an error in that regard, since the review investigation period covered a period of one year immediately prior to the initiation of the proceeding. The partial interim review proceeding was initiated on 30 August 2007 and the investigation period covered the period from 1 July 2006 to 30 June 2007.
72 As the Council noted, the purpose of the review was to establish whether it was still the case that the anti-dumping measures imposed on the imports originating in, inter alia, China were not against the Community interest, not to assess whether the conclusions reached with respect to imports of PSF from Malaysia and Taiwan should have been extended to imports from, inter alia, China.
73 In the second place, it is clear that the applicants challenge the contested regulation on the basis simply of comparing, on the one hand, the anti‑dumping duties which the contested regulation maintained for the imports from, inter alia, China and, on the other, the duties which were not applied to the imports from Malaysia and Taiwan.
74 Since those arguments overlap with the arguments relied on in the first plea in law, alleging infringement of the principle of non‑discrimination, it must be noted that, for the reasons already given in the context of examining the first plea, the difference in treatment found between the imports the subject of the contested regulation and those concerned by Decision 2007/430 may be considered to be justified substantively and objectively. The applicants cannot prove that there has been an error of assessment simply by comparing two situations which are not comparable.
75 The second plea in law must therefore be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.
Costs
76 Under Article 87(2) 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. In addition, under Article 87(4) of those rules, the institutions which have intervened in the proceedings must bear their own costs.
77 Since they have been unsuccessful and the Council has applied for costs, the applicants must be ordered to bear their own costs and pay, jointly and severally, those incurred by the Council. The Commission must bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action as inadmissible in so far as it has been brought by Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, NingBo Dafa Chemical Fiber Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd and Zhejiang Anshun Pettechs Fibre Co. Ltd;
2. Dismisses the action as unfounded in so far as it has been brought by Cixi Jiangnan Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd and Xiake Color Spinning Co. Ltd;
3. Orders Cixi Jiangnan Chemical Fiber, Cixi Santai Chemical Fiber, Cixi Sansheng Chemical Fiber, Jiangyin Changlong Chemical Fibre, NingBo Dafa Chemical Fiber, Xiake Color Spinning, Zhejiang Waysun Chemical Fiber and Zhejiang Anshun Pettechs Fibre to bear their own costs and to pay, jointly and severally, those incurred by the Council of the European Union;
4. Orders the European Commission to bear its own costs.
Kanninen | Soldevila Fragoso | Berardis |
Delivered in open court in Luxembourg on 13 September 2013.
[Signatures]