Judgment of the Court (Fourth Chamber)5 April 2017note(Appeal — Dumping — Implementing Regulation (EU) No 924/2012 — Imports of certain iron or steel fasteners originating in the People’s Republic of China — Regulation (EC) No 1225/2009 — Article 2(10) and (11) — Exclusion of certain export transactions for the purposes of calculating the dumping margin — Fair comparison between the export price and the normal value in the case of imports from a non-market economy country)In Joined Cases C‑376/15 P and C‑377/15 P,TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 9 July 2015,Changshu City Standard Parts Factory, established in Changshu City (China),Ningbo Jinding Fastener Co. Ltd, established in Ningbo (China),represented by R. Antonini and E. Monard, avocats,the other parties to the proceedings being:Council of the European Union, represented by B. Driessen and S. Boelaert, acting as Agents, and by N. Tuominen, avocat,European Commission, represented by T. Maxian Rusche and M. França, acting as Agents,European Industrial Fasteners Institute AISBL (EIFI), established in Brussels (Belgium),THE COURT (Fourth Chamber),composed of T. von Danwitz, President of the Chamber, E. Juhász, C. Vajda, K. Jürimäe (Rapporteur) and C. Lycourgos, Judges,Advocate General: P. Mengozzi,Registrar: M. Aleksejev, Administrator,having regard to the written procedure and further to the hearing on 22 June 2016,after hearing the Opinion of the Advocate General at the sitting on 7 December 2016,gives the following
Judgment
1By their appeals, Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd ask the Court to set aside the judgment of the General Court of the European Union of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (T‑558/12 and T‑559/12, not published, EU:T:2015:237) (‘the judgment under appeal’), by which the latter dismissed their actions for annulment of Council Implementing Regulation (EU) No 924/2012 of 4 October 2012 amending Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2012 L 275, p. 1) (‘the regulation at issue’).
Legal context
International law
2By Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’).
3Article 2 of the Anti-Dumping Agreement is headed ‘Determination of Dumping’. Article 2.4 of the agreement provides:‘A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. In the cases referred to in paragraph 3, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted under this paragraph. The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.’
4As set out in Article 2.4.2 of the agreement:‘Subject to the provisions governing fair comparison in paragraph 4, the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods, and if an explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison.’
EU law
5On the date on which the regulation at issue was adopted, the provisions governing the adoption of anti-dumping measures by the European Union were to be found in 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 and corrigendum OJ 2010 L 7, p. 22), as amended by Regulation (EU) No 765/2012 of the European Parliament and of the Council of 13 June 2012 (OJ 2012 L 237, p. 1) (‘the basic regulation’).
6Article 1(2) and (4) of the regulation provided:2. A product is to be considered as being dumped if its export price to the Community is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country....4. For the purpose of this Regulation, “like product” means a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.’
7Article 2 of that regulation, headed ‘Determination of dumping’, was worded as follows:‘...C. Comparison10. A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:…D. Dumping Margin11. Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Community, or by a comparison of individual normal values and individual export prices to the Community on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Community, if there is a pattern of export prices which differs significantly among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. This paragraph shall not preclude the use of sampling in accordance with Article 17.... ’
8Article 3(2), (3) and (8) of the regulation provided:2.A determination of injury shall be based on positive evidence and shall involve an objective examination of both:(a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and(b) the consequent impact of those imports on the Community industry.3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Community. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Community industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of these factors can necessarily give decisive guidance....8. The effect of the dumped imports shall be assessed in relation to the production of the Community industry of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers’ sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be assessed by examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.’
Background to the proceedings and the regulation at issue
9The appellants are companies established in China which produce certain iron or steel fasteners for sale on the national market or for export, in particular, to the European Union (‘the product under consideration’).
10By Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 209, p. 1), the Council imposed an anti-dumping duty on imports of the product under consideration.
11On 28 July 2011, the WTO Dispute Settlement Body (DSB) adopted the report of the WTO Appellate Body and that of the Panel, as modified by the Appellate Body report, in the case ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (WT/DS397). In those reports, it was found that the European Union had infringed a certain number of provisions of WTO law.
12On 6 March 2012, in accordance with Council Regulation (EC) No 1515/2001 of 23 July 2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters (OJ 2001 L 201, p. 10), the European Commission published a notice regarding the anti-dumping measures in force on imports of certain iron or steel fasteners originating in the People’s Republic of China, following the recommendations and rulings adopted by the DSB on 28 July 2011 in the EC — Fasteners dispute (DS397) (OJ 2012 C 66, p. 29).
13As set out in that notice, the Commission initiated a review of anti-dumping measures on the basis of Regulation No 1515/2001 to determine how Regulation No 91/2009 should be amended in order to be brought into conformity with the aforementioned DSB recommendations and rulings. Following that review, on 4 October 2012, the Council adopted the regulation at issue.
14With regard to the comparison between the export price and the normal value, the Council rejected the requests for adjustment made by certain interested parties, under Article 2(10) of the basic regulation, on account of differences in production costs, in efficiency and in productivity.
15With regard to the calculation of the dumping margin, since, pursuant to Article 2(7)(a) of the basic regulation, the normal value was determined on the basis of data from a market economy third country, namely, in the present case, India, and, in particular, of data provided by an Indian producer (‘the Indian producer’), the Council stated, essentially, in paragraphs 82, 102 and 109 of the regulation at issue, that the comparison between the weighted average normal value and the weighted average export prices had been made by excluding transactions relating to the product types under consideration exported by the Chinese exporting producers for which no matching type was produced and sold by the Indian producer. The Council explained that that method was considered to be the most reliable basis for establishing the level of dumping. In fact, according to the Council, to attempt to match all the product types under consideration exported by the Chinese exporting producers to closely resembling product types produced and sold by the Indian producer would have resulted in inaccurate findings. In addition, the Council stated that it considered that the export transactions used in calculating the amount of dumping were representative for all the product types under consideration exported by the Chinese exporting producers.
16Article 1 of the regulation at issue reduced the anti-dumping duty established by Regulation No 91/2009 to 38.3% for Changshu City Standard Parts Factory and maintained the duty established for Ningbo Jinding Fastener at 64.3%.
The procedure before the General Court and the judgment under appeal
17By applications lodged at the Registry of the General Court on 24 December 2012, the appellants brought actions for annulment of the regulation at issue.
18By order of the President of the Fourth Chamber of the General Court of 6 May 2014, Cases T‑558/12 and T‑559/12 were joined for the purposes of the oral procedure and the judgment.
19In support of their actions before the General Court, the appellants advanced two pleas in law.
20The first plea alleged infringement of Article 2(7)(a), (8), (9) and (11) and Article 9(5) of the basic regulation, the principle of non-discrimination and Article 2.4.2 of the Anti-Dumping Agreement. In that plea, the appellants criticised the Council and the Commission for excluding, for the purposes of calculating the dumping margin, transactions concerning the product types under consideration exported by the Chinese exporting producers for which no matching type was produced and sold by the Indian producer. According to the appellants, 38% of export sales from Changshu City Standard Parts Factory and 43% of those from Ningbo Jinding Fastener were thus excluded from the calculation of the dumping margin.
21The second plea alleged, primarily, infringement of Article 2(10) of the basic regulation and of Article 2.4 of the Anti-Dumping Agreement and, alternatively, infringement of Article 296 TFEU. That plea concerned the rejection of the requests for adjustment which the appellants had submitted.
22By the judgment under appeal, the General Court rejected both pleas raised by the appellants and dismissed the actions in their entirety.
Forms of order sought and procedure before the Court
23The appellants claim that the Court should:— set aside the judgment under appeal;— grant the form of order sought by the appellants in their action before the General Court and annul the regulation at issue, in so far as it relates to them; and— order the Council to bear the costs incurred by them in the proceedings before the General Court and the Court of Justice, and order the intervening parties to bear their own costs.
24The Council contends that the Court should dismiss the appeals and order the appellants to pay the costs of the appeals and of the proceedings before the General Court.
25The Commission contends that the Court should:— dismiss the appeals as inadmissible;— in the alternative, dismiss the appeals as unfounded; and— order the appellants to pay the costs.
26By decision of the President of the Court of 22 September 2015, Cases C‑376/15 P and C‑377/15 P were joined for the purposes of the written and oral procedure and the judgment.
The appeals
27The appellants put forward two grounds of appeal in support of their appeals. The first ground of appeal concerns the exclusion of certain export transactions for the purposes of calculating the dumping margin. The second ground of appeal concerns the EU institutions’ refusal to make certain adjustments in the context of the comparison between the normal value and the export price.
Admissibility of the appeal in Case C‑377/15 P
28The Commission claims that the appeal in Case C‑377/15 P is inadmissible in so far as it is identical to the appeal in Case C‑376/15 P. In its view, the parties, the acts at issue, the judgment under appeal and the arguments are the same. It argues that the appeal in Case C‑377/15 P, which was lodged last, is thus inadmissible on the ground of lis pendens.
29According to settled case-law of the Court, an action brought subsequently to another which is between the same parties, is brought on the basis of the same submissions and seeks annulment of the same legal measure must be dismissed as inadmissible on the ground of lis pendens (judgment of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission, C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraph 58 and the case-law cited).
30In the present case, the Court notes that the appeals in Cases C‑376/15 P and C‑377/15 P are between the same parties. In addition, the appeal in Case C‑377/15 P reproduces word for word the appeal in Case C‑376/15 P. Both appeals are thus brought on the basis of identical submissions, seek annulment of the same judgment of the General Court and of the same legal measure.
31In those circumstances, since the appeal in Case C‑377/15 P was brought subsequently to the appeal in Case C‑376/15 P, it must be dismissed as inadmissible on the ground of lis pendens.
The first ground of appeal in Case C‑376/15 P
Arguments of the parties
32The first ground of appeal concerns the reasoning of the General Court set out in paragraphs 61 to 90 of the judgment under appeal. It is subdivided into three parts.
33In the first part of the first ground of appeal, the appellants claim that the General Court misconstrued the requirement to make a comparison of all export transactions under Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement. In their view, both provisions must be interpreted as meaning that all export sales of the product under consideration, as defined at the time the investigation is initiated, are to be included in the comparison to be made for the purposes of calculating the dumping margin. They maintain that that interpretation follows from the aforementioned provisions and the judgment of 27 September 2007, Ikea Wholesale (C‑351/04, EU:C:2007:547). They submit that no potential additional difficulties related to the application of the so-called ‘analogue country’ method permit a derogation from the rules on the determination of the dumping margin.
34In the second part of the first ground of appeal, the appellants claim that the General Court erred in law by confusing the obligations set out in Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement, on the one hand, and the obligations relating to price comparability set out in Article 2(10) of the basic regulation and Article 2.4 of the Anti-Dumping Agreement, on the other hand. In that regard, they submit that the question whether the calculation of the dumping margin complies with Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement should not be assessed on the basis of the notion of ‘comparable prices’, as the General Court ruled in paragraph 61 of the judgment under appeal, but on the basis of that of ‘comparable transactions’. In the appellants’ view, prices must be made comparable for all comparable transactions under Article 2(10) of the basic regulation and Article 2.4 of the Anti-Dumping Agreement, which was possible in the present case.
35In the third part of the first ground of appeal, the appellants maintain, as an alternative claim, that the analysis of the ‘fair comparison’ carried out by the General Court does not comply with the requirements of Article 2(10) and (11) of the basic regulation and Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement. Thus, first, they claim that the General Court was wrong in examining whether the use of other methods to determine the normal value might have resulted in a ‘fairer’ comparison than the one made by the EU institutions. Secondly, they submit that the General Court’s analysis confirms that it was not impossible, but merely more difficult, for EU institutions to comply with Article 2(10) and (11) of the basic regulation. Thirdly, they assert that the General Court wrongly attached any importance to the question whether or not the appellants cooperated with the EU institutions by telling them how they could comply with their obligations under Article 2(10) and (11) of the basic regulation and Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement. Fourthly, they contend that the notion of ‘representativeness’ of the transactions, considered by the General Court in paragraphs 81 and 83 of the judgment under appeal, is irrelevant.
36The Council and the Commission dispute the appellants’ arguments. As a preliminary point, the Commission claims that the first ground of appeal is inadmissible because the appellants call in question the General Court’s assessment of the facts and do not identify any error of law made by the General Court. Moreover, the Commission maintains that this ground of appeal is ineffective.
37As their main arguments, with regard to the first part of the first ground of appeal, the Council and the Commission claim, firstly, that the General Court was fully entitled to refuse to apply the judgment of 27 September 2007, Ikea Wholesale (C‑351/04, EU:C:2007:547) in the present case and, secondly, that the interpretation advocated by the appellants is not supported by the DSB reports. The Commission further notes that Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement are permeated by the concept of ‘fair comparison’. In its opinion, the aim of Article 2(10) and (11) of the basic regulation is to transpose Article 2.4 of the Anti-Dumping Agreement into EU law, thus giving prominence to that concept.
38With regard to the second part of the first ground of appeal, the Council and the Commission take the view, essentially, that the wording of the basic regulation and of the Anti-Dumping Agreement shows that the ‘fair comparison’ requirement must prevail over the obligation to calculate the dumping margin on the basis of all export transactions. In addition, they claim that Article 2(11) of the basic regulation sets out specific methods for calculating the dumping margin but does not override the general requirement to make a fair comparison, laid down in Article 2(10) thereof.
39With regard to the third part of the first ground of appeal, the Council and the Commission note, first, that the appellants seem to suggest that the EU institutions should have opted for the approach that was ‘the most fair’, which, in their view, is legally incorrect. Secondly, they claim that the approach chosen by the EU institutions was fair because of the lack of pricing information for the products not sold by the Indian producer. Thirdly, they argue that the General Court was right in finding that the appellants should and could have substantiated their claims. Fourthly, according to the Commission, the concept of ‘representativeness’ is relevant and is to be assessed in connection with all transactions for the product under consideration and not in connection with the individual exporting producer. Moreover, in its view, the exclusion of export transactions was completely random and was not intended to influence the outcome of the EU institutions’ analysis.
Findings of the Court
–Admissibility
40It should be pointed out that it is settled case-law that the Court of Justice has no jurisdiction to find the facts or, as a rule, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice.
41By the arguments put forward in support of the present ground of appeal, the appellants criticise, essentially, the General Court, primarily, for having misinterpreted Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement and, in the alternative, for having carried out an analysis that infringes Article 2(10) and (11) of that regulation and Articles 2.4 and 2.4.2 of that agreement. Contrary to the Commission’s contention, those arguments call in question the General Court’s interpretation of the legal rules, not its assessment of the facts. The appellants thus identify errors of law which, according to them, vitiate the judgment under appeal. Those arguments therefore concern points of law that may be referred to the Court of Justice for a ruling in an appeal.
42Accordingly, the Commission’s argument that the present ground of appeal is inadmissible cannot be accepted.
–Ineffective nature of the first ground of appeal
43The Commission is of the opinion that the first ground of appeal is ineffective.
44However, as the Advocate General observed in point 56 of his Opinion, if the Court were to uphold this ground of appeal by finding, inter alia, that the General Court’s interpretation of Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement is incorrect, the judgment under appeal would be vitiated by an error of law which would entail its annulment.
45Accordingly, the Commission’s argument that this ground of appeal is ineffective cannot be accepted.
–Substance
46The appellants call in question the General Court’s reasoning set out in paragraphs 61 to 90 of the judgment under appeal. According to them, its reasoning is vitiated by an error of law because it is based on the misinterpretation, in particular, of Article 2(11) of the basic regulation.
47It must be recalled, in that respect, that, according to the Court’s case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. Since the application of Article 2(11) of the basic regulation requires an appraisal of complex economic situations, the judicial review of such an appraisal must 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, judgments of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraphs 40 and 41, and 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 63).
48In order to reach the conclusion, set out in paragraph 90 of the judgment under appeal, that the Council had not committed any manifest error of assessment by excluding from the calculation of the dumping margin the product types that did not match any of the products produced and sold by the Indian producer, and that, accordingly, the regulation at issue did not infringe either Article 2(11) of the basic regulation or Article 2.4.2 of the Anti-Dumping Agreement, the General Court examined, as is apparent from paragraph 61 of the judgment under appeal, whether such an approach was possible on the basis of Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement, which (a) provide that the EU institutions must take into account the prices of all export transactions that are comparable to the normal value and (b) refer to the relevant provisions governing fair comparison.
49The General Court held, first, in paragraph 63 of that judgment that while the product types under consideration could be regarded as similar, the prices of the types of that product that were not produced or sold by the Indian producer could not. Therefore, according to the General Court, the absence of prices for some of the product types under consideration, despite their similarity, prevented a comparison between the normal value and the export price. Then, it found, in paragraphs 71, 80 and 84 of the judgment, that, in view of the risk of inaccuracy in using methods for calculating the normal value of products not sold by the Indian producer, the EU institutions were fully entitled to conclude that the approach which they had suggested was fair and that using such methods would not have ensured a more accurate or fairer comparison. Lastly, in paragraph 85 of that judgment, the General Court dismissed as irrelevant the judgment of 27 September 2007, Ikea Wholesale (C‑351/04, EU:C:2007:547) on the ground that, unlike in the present case, in the case that gave rise to that judgment the dumping margin had not been calculated on the basis of a significant representation of the product types under consideration.
50In so doing, the General Court took the view that, when calculating the dumping margin, under Article 2(11) of the basic regulation, the EU institutions were justified in excluding certain export transactions from that calculation in the absence of ‘comparable prices’ and where no other method of calculation would have enabled a ‘fairer comparison’ to be made, as long as the calculation was made on the basis of a ‘significant representation’ of the product types under consideration.
51The Court must therefore ascertain whether, as the appellants claim, the General Court’s reasoning is vitiated by an error of law.
52In the first place, in order to determine whether, under Article 2(11) of the basic regulation, the EU institutions are required to take into account all export transactions or whether they may exclude some of those transactions for the purposes of calculating the dumping margin, the wording, context and objectives of that provision must be analysed (judgment of 16 April 2015, Angerer, C‑477/13, EU:C:2015:239, paragraph 26 and the case-law cited).
53With regard, first, to the wording of the provision, it should be noted that it lays down two methods for comparing the normal value and the export price: the so-called ‘symmetrical’ method based either on the comparison of a weighted average normal value with the weighted average of prices of all export transactions to the European Union or on a transaction-to-transaction comparison, and the so-called ‘asymmetrical’ method based on the comparison of a weighted average normal value with the prices of all individual export transactions to the European Union. Whatever the method of calculation, Article 2(11) of the basic regulation refers to ‘all export transactions to the [European Union]’. As the Advocate General pointed out in point 71 of his Opinion, that wording indicates that the EU institutions may not exclude export transactions relating to certain types of the product under consideration from the calculation of the dumping margin.
54Next, with regard to the objective pursued by Article 2(11) of the basic regulation, it follows from that provision that both the symmetrical and the asymmetrical methods for calculating the dumping margin must serve to reflect the full degree of dumping being practised.
55However, as the Advocate General observed in point 67 of his Opinion, the EU institutions’ exclusion from the calculation of the dumping margin of export transactions relating to certain types of the product under consideration is contrary to that objective. In fact, the corollary from such exclusion is that it is impossible for the institutions to measure the impact that those transactions might have on that calculation, and, therefore, those institutions cannot ensure that the dumping margin calculated reflects the full degree of dumping being practised.
56Lastly, with regard to the context of Article 2(11) of the basic regulation, it follows from Article 1 of the regulation, headed ‘Principles’, that the anti-dumping investigation concerns a specific product called ‘the product under consideration’, defined by the EU institutions at the time the investigation is initiated.
57Therefore, Article 1(2) of the regulation provides that a product is to be considered as being dumped if its export price to the European Union is less than a comparable price for the like product, as established for the exporting country. In addition, Article 1(4) of the regulation states that, for the purpose of the basic regulation, ‘like product’ means a product which is identical to ‘the product under consideration’. Therefore, the dumping margin is to be calculated on the basis of the definition of ‘the product under consideration’, as put forward by the EU institutions at the time the investigation is initiated.
58Similarly, it follows from Article 3(2), (3) and (8) of the basic regulation, which refers to notion of ‘like product’, that it is on the basis of ‘the product under consideration’ that the EU institutions are to determine whether the EU industry has suffered any injury as a result of the dumped imports.
59As the Advocate General stated in point 64 of his Opinion, the definition of ‘the product under consideration’, at the time the investigation is initiated, does not prevent the EU institutions from subdividing the product into individual product types or models or from relying on model-by-model or type-by-type comparisons between the normal value and the export price.
60Nevertheless, the fact remains that the EU institutions are required to establish, in line with that definition, an overall dumping margin for ‘the product under consideration’ as a whole. Any other interpretation would be tantamount to giving them the opportunity to influence the result of the calculation of the dumping margin by excluding one or more product types or models of the ‘product under consideration’, as defined at the time the investigation is initiated.
61Accordingly, in the light of its wording, objective and context, Article 2(11) of the basic regulation cannot be interpreted as allowing export transactions to the European Union relating to certain types of the product under consideration to be excluded from the calculation of the dumping margin. On the contrary, it follows from that provision that the EU institutions are required to take into account all those transactions for the purposes of that calculation.
62It must be added that none of the arguments put forward by the Council and the Commission relating to the interpretation of Article 2.4.2 of the Anti-Dumping Agreement are capable of calling into question that finding.
63That finding is, moreover, supported by the judgment of 27 September 2007, Ikea Wholesale (C‑351/04, EU:C:2007:547, paragraph 56). In that judgment, the Court pointed out that Article 2(11) of the basic regulation provides that the weighted average normal value is to be compared with ‘a weighted average of prices of all export transactions’ to the European Union. Following that reminder, the Court found that the Council had made a manifest error of assessment because it had failed to base its calculation of the overall dumping margin on comparisons that fully reflected all the comparable export prices.
64That judgment, admittedly, concerned the use of the so-called practice of ‘zeroing’ negative dumping margins when calculating the overall dumping margin, which is a separate question to that at issue in the present case, namely the exclusion of certain transactions from that calculation due to the absence of matching products produced and sold by the producer in the analogue country. However, as the Advocate General noted in point 82 of his Opinion, both the case that gave rise to that judgment and the present case concern the failure to take into account the prices of certain export transactions when calculating the dumping margin. In that context, it is irrelevant that, in the present case, the prices of certain export transactions were completely overlooked whereas, in the case that gave rise to the judgment of 27 September 2007, Ikea Wholesale (C‑351/04, EU:C:2007:547), those prices were only partially overlooked, in that, essentially, they were modified.
65Contrary to the considerations set out in paragraph 85 of the judgment under appeal, the fact that, in the present case, the dumping margin was calculated on the basis of a ‘significant representation’ of the product types under consideration is not such as to render the judgment of 27 September 2007, Ikea Wholesale (C‑351/04, EU:C:2007:547) irrelevant. In fact, not only do the appellants dispute the representativeness of the transactions that the EU institutions took into account to calculate the dumping margin, but there is nothing in Article 2(11) of the basic regulation to allow the margin to be calculated on the basis of a ‘significant representation’ of the product types under consideration.
66In the second place, it is necessary to determine whether, notwithstanding the scope of Article 2(11) of the basic regulation, as defined in paragraph 61 of the present judgment, the General Court was fully entitled to hold, in paragraph 64 of the judgment under appeal, that the EU institutions were entitled to exclude export transactions relating to certain types of the product under consideration, provided that there were no ‘comparable prices’ for those types of product and that using another method for calculating the normal value would not have ensured a ‘fairer comparison’.
67First, with regard to the absence of ‘comparable prices’, it must be noted that, under Article 2(11) of the basic regulation, the dumping margin is calculated by comparing the normal value and the prices of all export transactions to the European Union, ‘subject to the relevant provisions governing fair comparison’. The last part of the sentence refers to Article 2(10) of the basic regulation, which states that where a fair comparison cannot be made between the normal value and the export price, due allowance, in the form of adjustments, is to be made for differences in factors which are claimed and demonstrated to affect prices. Accordingly, due allowance is to be made for price comparability in the context of the application of Article 2(10) of the basic regulation and not in that of the application of Article 2(11) thereof.
68In other words, as is apparent from paragraphs 57 and 61 of the present judgment, the dumping margin under Article 2(11) of the basic regulation is to be calculated on the basis of the definition of ‘the product under consideration’ as put forward by the EU institutions at the time the investigation is initiated, without any possibility of excluding any type or model of that product from the calculation. However, in order to make that calculation, the EU institutions should compare prices by making due allowance, in the form of adjustments, for differences which affect those prices, within the meaning of Article 2(10) of the basic regulation.
69It follows that the General Court wrongly held that the EU institutions were entitled to exclude export transactions relating to certain types of the product under consideration because there were no ‘comparable prices’ for those product types.
70It should further be pointed out, as the Advocate General observed in point 78 of his Opinion, that, in practice, where, as in the present case, the producer in the analogue country neither produces nor sells a certain product type, the EU institutions may either decide to exclude that product type from the definition of ‘the product under consideration’ or construe the normal value for that product type so as to take into consideration export transactions of that same product type for the purposes of calculating the dumping margin.
71Secondly, with regard to the fact that the use of another method for calculating the normal value would not have ensured a ‘fairer comparison’, while it follows from a combined reading of Article 2(10) and (11) of the basic regulation that the calculation of the dumping margin must be made on the basis of a ‘fair comparison’, the notion of ‘fairer comparison’ appears nowhere in those provisions. Even if that notion were to be accepted as relevant, it is important to note that, as is apparent from paragraph 61 of the present judgment, the exclusion of export transactions cannot be regarded as a way to ensure a ‘fair comparison’. Therefore, it cannot be considered that the use of another method for calculating the normal value would not have ensured a ‘fairer comparison’.
72It follows that the General Court made an error of law by holding, in paragraphs 61 to 90 of the judgment under appeal, that the Council could exclude from the calculation of the dumping margin the product types that did not match any of the products produced and sold by the Indian producer.
73In the light of the foregoing considerations, the first ground of appeal must be upheld and the judgment under appeal must be set aside, without any need to examine the other grounds raised in the first ground of appeal or the second ground of appeal.
The action before the General Court
74In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits. Such is the position in the present case.
75As is apparent from paragraphs 52 to 72 of the present judgment, by taking the view, in paragraphs 82, 102 and 109 of the regulation at issue, that the product types exported by the Chinese exporting producers for which no matching type was produced and sold by the Indian producer should be excluded, the Council infringed Article 2(11) of the basic regulation.
76In those circumstances, the regulation at issue must be annulled in so far as it concerns the appellants.
Costs
77Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which applies to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
78Since the appellants have applied for the Council to be ordered to pay the costs and the Council has been unsuccessful, the Council shall be ordered to pay the costs relating to the proceedings at first instance in Cases T‑558/12 and T‑559/12 as well as those relating to the appeal proceedings in Case C‑376/15 P. However, since the Council has applied for the appellants to be ordered to pay the costs, the latter shall be ordered to pay the costs relating to the appeal proceedings in Case C‑377/15 P.
79Pursuant to Article 140(1) of the Rules of Procedure of the Court of Justice, which applies to the procedure on appeal by virtue of Article 184(1) thereof, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
80Accordingly, the Commission shall bear its own costs relating to the proceedings at first instance in Cases T‑558/12 and T‑559/12 as well as those relating to the appeal proceedings in Cases C‑376/15 P and C‑377/15 P.
Operative part
On those grounds, the Court (Fourth Chamber) hereby:
1.Sets aside the judgment of the General Court of the European Union of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (T‑558/12 and T‑559/12, EU:T:2015:237);
2.Annuls Council Implementing Regulation (EU) No 924/2012 of 4 October 2012 amending Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China, in so far as it relates to Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd;
3.Dismisses the appeal in Case C‑377/15 P;
4.Orders the Council of the European Union to bear its own costs and to pay those incurred by Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd in relation to the proceedings at first instance in Cases T‑558/12 and T‑559/12 as well as those relating to the appeal proceedings in Case C‑376/15 P;
5.Orders Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd to bear their own costs and to pay those incurred by the Council of the European Union in relation to the appeal proceedings in Case C‑377/15 P;
6.Orders the European Commission to bear its own costs relating to the proceedings at first instance in Cases T‑558/12 and T‑559/12 as well as those relating to the appeal proceedings in Cases C‑376/15 P and C‑377/15 P.
Delivered in open court in Luxembourg on 5 April 2017.
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