Contents
Judgment of the Court (Ninth Chamber)5 May 2022note(Appeal — Dumping — Imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China — Imposition of a definitive anti-dumping duty)In Case C‑718/20 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 December 2020,Zhejiang Jiuli Hi-Tech Metals Co. Ltd, established in Huzhou (People’s Republic of China), represented by K. Adamantopoulos and P. Billiet, avocats,the other party to the proceedings being:European Commission, represented by M. Gustafsson, P. Němečková and E. Schmidt, acting as Agents,THE COURT (Ninth Chamber),composed of S. Rodin (Rapporteur), President of the Chamber, L.S. Rossi and O. Spineanu-Matei, Judges,Advocate General: G. Pitruzzella,Registrar: A. Calot Escobar,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1By the present appeal, the company Zhejiang Jiuli Hi-Tech Metals Co. Ltd (‘Zhejiang’), established in China, asks the Court to set aside the judgment of the General Court of the European Union of 15 October 2020, Zhejiang Jiuli Hi-Tech Metals v Commission (T‑307/18, not published, EU:T:2020:487; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of Commission Implementing Regulation (EU) 2018/330 of 5 March 2018 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2018 L 63, p. 15), in so far as the appellant is concerned.
Legal context
International law
2By Council 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 Organization (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 18.3 of the Anti-Dumping Agreement is worded as follows:‘Subject to subparagraph 3.1 and 3.2, the provisions of this Agreement shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.’
4On 11 December 2001, pursuant to the Protocol on the Accession of the People’s Republic of China to the WTO (‘the Protocol on the Accession of China to the WTO’), the latter became a party to the WTO.
5According to Article 15(a) and (d) of that protocol:‘Article VI [of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 11; ‘GATT 1994’)], the [Anti-Dumping Agreement] and the [Agreement on Subsidies and Countervailing Measures (OJ 1994 L 336, p.156)] shall apply in proceedings involving imports of Chinese origin into a WTO Member consistent with the following:(a) In determining price comparability under Article VI of the GATT 1994 and the Anti-Dumping Agreement, the importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in China based on the following rules:(i) If the producers under investigation can clearly show that market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price comparability;(ii) The importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product.…(d) Once China has established, under the national law of the importing WTO Member, that it is a market economy, the provisions of subparagraph (a) shall be terminated provided that the importing Member’s national law contains market economy criteria as of the date of accession. In any event, the provisions of subparagraph (a)(ii) shall expire 15 years after the date of accession. In addition, should [the People’s Republic of] China establish, pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a particular industry or sector, the non-market economy provisions of subparagraph (a) shall no longer apply to that industry or sector.’
European Union law
Regulation (EU) 2016/1036
6Recital 3 of 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), provides:‘In order to ensure a proper and transparent application of the rules of [the Anti-Dumping Agreement], the language of that agreement should be reflected in Union legislation to the best extent possible.’
7Article 2 of that regulation, entitled ‘Determination of dumping’, provides as follows in paragraph 7(a) and (b) and paragraphs 10 and 11:7.(a) In the case of imports from non-market-economy countries, the normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted if necessary to include a reasonable profit margin.An appropriate market-economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits. Where appropriate, a market-economy third country which is subject to the same investigation shall be used.The parties to the investigation shall be informed shortly after its initiation of the market-economy third country envisaged and shall be given 10 days to comment.(b) In anti-dumping investigations concerning imports from the People’s Republic of China, Vietnam and Kazakhstan and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, the normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in point (c), that market-economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When that is not the case, the rules set out under point (a) shall apply.…10. 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:…11. 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 Union, or by a comparison of individual normal values and individual export prices to the Union 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 Union, if there is a significant difference in the pattern of export prices 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 of that regulation, entitled ‘Determination of injury’, provides as follows in paragraphs 2, 3, 5 and 6:2.A determination of injury shall be based on positive evidence and shall involve an objective examination of:(a) the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and(b) the consequent impact of those imports on the Union 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 Union. 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 Union 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 those factors can necessarily give decisive guidance.…5. The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation; the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.’
9Article 6 of that regulation, entitled ‘The investigation’, provides in paragraph 8:‘Except in the circumstances provided for in Article 18, the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.’
10Article 11 of Regulation 2016/1036, entitled ‘Duration, reviews and refunds’, provides in paragraphs 2 and 9:2. A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon a request made by or on behalf of Union producers, and the measure shall remain in force pending the outcome of that review.An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury. Such likelihood may, for example, be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping.In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the Union producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.…9. In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.’
11Article 16 of that regulation, entitled ‘Verification visits’, provides in paragraph 2:‘The Commission may carry out investigations in third countries as required, provided that it obtains the agreement of the firms concerned, that it notifies the representatives of the government of the country in question and that the latter does not object to the investigation. As soon as the agreement of the firms concerned has been obtained, the Commission shall notify the authorities of the exporting country of the names and addresses of the firms to be visited and the dates agreed.’
12Article 18 of the regulation, entitled ‘Non-cooperation’, provides in paragraph 4:‘If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within the time limit specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be disclosed and given in published findings.’
13Article 20 of that regulation, entitled ‘Disclosure’, states, in paragraphs 2 and 4:2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.…4. Final disclosure shall be given in writing. It shall be made, due regard being had to the protection of confidential information, as soon as possible and, normally, no later than one month prior to the initiation of the procedures set out in Article 9. Where the Commission is not in a position to disclose certain facts or considerations at that time, they shall be disclosed as soon as possible thereafter.Disclosure shall not prejudice any subsequent decision which may be taken by the Commission, but where such a decision is based on any different facts and considerations they shall be disclosed as soon as possible.’
14Article 22 of that regulation, entitled ‘Final provisions’, provides as follows in point (a):‘This Regulation shall not preclude the application of:(a) any special rules laid down in agreements concluded between the Union and third countries’.
Implementing Regulation 2018/330
15Implementing Regulation 2018/330, which was adopted following an expiry review pursuant to Article 11(2) of Regulation 2016/1036, maintains the anti-dumping duties that had been initially imposed on imports of certain seamless pipes and tubes of stainless steel by Council Implementing Regulation (EU) No 1331/2011 of 14 December 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China (OJ 2011 L 336, p. 6).
Background to the dispute
16The background to the dispute, as set out in paragraphs 1 to 11 of the judgment under appeal, can be summarised as follows.
17On 14 December 2011, the Council adopted Implementing Regulation No 1331/2011, which imposed, inter alia, an anti-dumping duty of 56.9% on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China and manufactured by the companies listed in Annex I to that regulation, including Zhejiang.
18On 10 December 2016, the Commission initiated an expiry review of the measures in force pursuant to Article 11(2) of Regulation 2016/1036 and, on 5 March 2018, adopted Implementing Regulation 2018/330.
19The investigation into the likelihood of continuation or recurrence of dumping covered the period from 1 October 2015 to 30 September 2016 (‘the review investigation period’), while the analysis of trends relevant for the assessment of the likelihood of continuation or recurrence of injury caused to the EU industry covered the period from 1 January 2013 to the end of the review investigation period.
20In the course of the review procedure, two Chinese exporting producers, including Zhejiang, were selected to be part of the sample of exporting producers. In order to analyse the likelihood of continuation or recurrence of dumping, the Commission chose India as a market-economy third country (‘the analogue country’) for the purposes of establishing the normal value in respect of China. The normal value was determined on the basis of the reply to the questionnaire received from an Indian exporting producer. The export price was calculated in accordance with Article 2(8) of Regulation 2016/1036, on the basis of the export prices of two sampled Chinese exporting producers which were actually paid or payable by the first independent customer. The Commission compared the weighted average normal value of each type of the like product in the analogue country with the weighted average export price of the corresponding product type concerned.
21On the basis of that examination, the weighted average dumping margin calculated by the Commission was in the range of 25% to 35% for the two sampled Chinese exporting producers. The Commission concluded from this that dumping had continued during the review investigation period. The Commission also concluded that it was highly likely that the repeal of the anti-dumping measures would result in significant amounts of dumped Chinese imports. Moreover, the Commission considered that, in the review investigation period, the EU industry suffered material injury and that the repeal of the measures would in all likelihood result in a significant increase of Chinese dumped imports at prices undercutting the EU industry prices.
22On the basis of those findings, the Commission concluded that the anti-dumping measures imposed by Implementing Regulation No 1331/2011 should be maintained. Accordingly, Implementing Regulation 2018/330 imposes an anti-dumping duty at rates identical to those set by Implementing Regulation No 1331/2011.
The procedure before the General Court and the judgment under appeal
23By application lodged at the Court Registry on 16 May 2018, Zhejiang brought an action for annulment of Implementing Regulation 2018/330 in so far as it concerns it.
24In support of that action, Zhejiang relied on five pleas in law alleging, first, infringement of its rights of defence, secondly, failure to state reasons and manifest errors of assessment resulting from the application of the analogue country method and the selection of the analogue country, thirdly, manifest errors of assessment resulting from the adoption of a Product Control Number (PCN) coding which was incorrect for the product concerned, fourthly, manifest errors of assessment as regards the determination of the dumping margin, and, fifthly, manifest errors of assessment in the determination of the existence and likelihood of recurrence of injury and the failure of the Commission to verify the existence of a causal link.
25By the judgment under appeal, the General Court dismissed that action in its entirety.
26In the first place, the General Court rejected the first plea in law as unfounded.
27As regards the first part of that plea, alleging failure to communicate information relevant to the defence of Zhejiang’s interests, which was examined in paragraphs 90 to 131 of the judgment under appeal, the General Court analysed the procedure followed by the Commission for the purposes of determining the dumping margin. Having analysed all the stages of that procedure, it found that the Commission had made available to Zhejiang the essential facts and considerations on the basis of which the introduction of definitive measures was recommended and that Zhejiang had been in a position in which it could effectively make known its views in that regard. It concluded therefrom that the Commission had used the appropriate methodology to determine the dumping margin.
28As regards the second part of the first plea, alleging failure to verify the data of the Indian exporting producer, which was examined in paragraphs 132 to 145 of the judgment under appeal, the General Court assessed whether the Commission had erred in failing to verify the information submitted by the Indian exporting producer and other relevant information. It noted, first, that the absence of a verification visit to the Indian exporting producer was the result of the latter’s refusal to submit to such a visit and that, in the light of Article 16(2) of Regulation 2016/1036, the Commission could therefore not be criticised for not having verified data from that exporting producer and, secondly, that Zhejiang was fully aware of the fact that that exporting producer had refused the verification visit. As regards the complaint, raised in the reply, that the Commission had failed to disregard the data of the Indian exporting producer after acknowledging that the latter had stopped cooperating, the General Court held that that complaint had to be rejected as inadmissible on the ground that it had not been raised at the stage of the application initiating proceedings and, in any event, as unfounded in so far as there was no evidence to support the conclusion that, on the basis of Article 18(6) of Regulation 2016/1036, the Commission was required to disregard the data provided by the Indian exporting producer. In addition, the General Court found that the Commission had taken into account Zhejiang’s arguments relating to the existence of differences in costs linked to differences in production methods and the potential inclusion in the calculation of the dumping margin of products for military and nuclear use, but had decided to reject them in a reasoned manner.
29In the second place, the General Court rejected the second plea in law as unfounded.
30As regards the first part of the second plea, alleging infringement of Article 22(a) of Regulation 2016/1036 and of Section 15(a) and (d) of the Protocol on the Accession of China to the WTO, which was examined in paragraphs 155 to 162 of the judgment under appeal, the General Court held that that protocol could not be relied on in order to challenge the legality of Regulation 2016/1036 and that it was also necessary to reject the alleged infringement of Article 22(a) of Regulation 2016/1036. As regards the second part of that plea, alleging a manifest error of assessment and infringement of Article 2(7) of Regulation 2016/1036, which was examined in paragraphs 163 to 178 of the judgment under appeal, the General Court rejected it as unfounded. As regards the third part of that plea, alleging a failure to state reasons, which was examined in paragraphs 179 to 182 of the judgment under appeal, the General Court also rejected it as unfounded.
31In the third place, the General Court rejected the third plea as unfounded.
32As regards the first part of the third plea, alleging failure to take into account differences in production methods when drawing up the PCNs, which was examined in paragraphs 193 to 203 of the judgment under appeal, the General Court analysed the PCN-by-PCN method of comparison and the arguments put forward by Zhejiang in order to demonstrate that the differences in production must have affected whether the product types concerned were identical or similar and concluded that Zhejiang had merely made assertions without supporting them with detailed evidence. As regards the second part of that plea, alleging a failure to take into account differences in the use of products when drawing up the PCNs, which was examined in paragraphs 204 to 210 of the judgment under appeal, the General Court analysed Zhejiang’s argument concerning the potential inclusion of products for nuclear and military use in the PCN coding and concluded that the coding adopted by the Commission in the present case was not based on a manifest error of assessment. As regards the third part of that plea, alleging unfair rejection by the Commission of the known deficiencies in the PCN coding, which was examined in paragraphs 211 to 215 of the judgment under appeal, the General Court rejected it as unfounded.
33In the fourth place, in paragraphs 229 to 259 of the judgment under appeal, the General Court rejected the fourth plea as unfounded on the ground that Zhejiang had not succeeded in demonstrating that the Commission had made a manifest error of assessment in determining the dumping margin.
34In the fifth place, the General Court rejected the fifth plea as unfounded. In that regard, the General Court found, in paragraphs 262 to 271 of the judgment under appeal, that Zhejiang had not succeeded in demonstrating that the Commission had erred, first, when it established that Chinese imports had caused injury to the EU industry and, secondly, when it failed to initiate anti-dumping investigations against Indian imports.
Forms of order sought by the parties before the Court
35Zhejiang claims that the Court should:– principally:– set aside the judgment under appeal in its entirety,– grant the form of order sought by the appellant in its action before the General Court and annul Implementing Regulation 2018/330, in so far as it concerns it, in accordance with Article 61 of the Statute of the Court of Justice of the European Union, and– order the Commission to pay the costs;– in the alternative:– refer the case back to the General Court for a ruling on the pleas raised before it, and– reserve the costs.
36The Commission contends that the Court should:– dismiss the appeal as unfounded; and– order Zhejiang to pay the costs.
The appeal
The first ground of appeal
Arguments of the parties
37By its first ground of appeal, Zhejiang submits that the General Court, first, erred in law in paragraphs 116, 117, 118, 125, 126, 127, 131 and 139 of the judgment under appeal, in so far as it concluded that the Commission had proposed to disclose to it all the essential facts and considerations in good time. Secondly, as a result of that error of law, the General Court also distorted the facts in paragraphs 91, 119, 125 and 126 of the judgment under appeal when it concluded that the normal value of seamless pipes and tubes of stainless steel of Zhejiang’s ‘Casing and tubing, of a kind used in drilling for oil and gas’ had been established by reference to the PCNs reported by the Indian exporting producer.
38In that regard, Zhejiang submits that the General Court misinterpreted and misapplied Article 20(2) and (4) of Regulation 2016/1036 and, accordingly, erred in law in finding that, during the review procedure, the Commission had disclosed to it all the essential facts and considerations in good time. Zhejiang argues that Article 20(2) and (4) of Regulation 2016/1036 requires sufficient disclosure of relevant information to the interested parties without imposing a burden of proof on one of the parties and that such disclosure must be made in good time.
39Furthermore, according to Zhejiang, it is clear from the case-law of the Court that it is the quality of information, rather than the number of disclosures and hearing opportunities granted to interested parties in the course of an anti-dumping investigation, that allows a disclosure to be classified as sufficient. It adds that it is apparent from the case-law of the WTO Appellate Body that the disclosure of information by the EU institutions has already been considered insufficient.
40First, although Zhejiang does not challenge the list of information which was not communicated to it, as set out in paragraph 95 of the judgment under appeal, Zhejiang submits that, contrary to what the General Court found in paragraph 116 of the judgment under appeal, it is not in a position to understand the method used by the Commission to calculate the normal value of the product types sold on the domestic market of the analogue country which were identical or comparable to the types of products sold for export to the European Union by China and, in particular, the product types exported without corresponding domestic sales in the analogue country. In that regard, it submits that the Commission refused to disclose the PCNs of the Indian, United States and EU producers on the ground that they were confidential, whereas, according to the WTO, such information is not confidential.
41Secondly, Zhejiang submits that the General Court erred in law when it held, in paragraph 118 of the judgment under appeal, that, irrespective of the determination of the most closely resembling product type to be compared for the purposes of determining the normal value of the product types exported without corresponding domestic sales in the analogue country, that determination of the normal value cannot be regarded as incorrect, since appropriate coefficients were applied in order to adjust that normal value.
42Thirdly, Zhejiang challenges the General Court’s findings that it did not submit to the Commission any proposals for an alternative calculation methodology, but merely made assertions and assumptions. Zhejiang notes that the burden of proof as to the existence of more appropriate PCNs cannot be placed on the parties to the review procedure and submits that, in the absence of disclosure of the list of PCNs, it was not in a position to submit better proposals to the Commission as to the adjustments necessary for the purposes of price comparison.
43Fourthly, Zhejiang submits that the General Court distorted the facts in that, in paragraphs 91, 118 and 126 of the judgment under appeal, it referred to the six PCNs of the analogue country as having all been provided by the Indian exporting producer. It is common ground that that exporting producer does not manufacture such products and, in addition, the General Court contradicts itself, in paragraph 125 of the judgment under appeal, by stating that the normal value of those products was determined by reference to data from EU producers for the most closely resembling product type.
44Fifthly, Zhejiang submits that the failure by the Commission to verify the information from the Indian exporting producer led to the latter being able to declare, in its anti-dumping questionnaire, a PCN which it does not produce or sell. Furthermore, Zhejiang maintains that the Commission’s reference to ‘data from EU producers’ does not constitute sufficient disclosure of the relevant facts and considerations. Thus, Zhejiang submits that, in so far as the Commission is under an obligation to apply the ‘ordinary course of trade’ test prior to using sales prices in dumping determinations under Article 2 of Regulation 2016/1036, the General Court’s finding in paragraph 127 of the judgment under appeal that the Commission was not required to apply that test is wrong in law.
45Sixthly, Zhejiang submits that the fact that the Commission did not disclose to it all the essential facts and considerations concerning the dumping margin is also explained by the fact that the Indian exporting producer ceased cooperating and refused to submit to a verification of the data it had supplied to the Commission. In the first place, while Zhejiang claims that it was informed of the fact that that exporting producer refused an on-the-spot verification visit, it maintains that it was not informed of the exporting producer’s non-cooperation until the Commission lodged its defence on 11 September 2018. In the second place, it considers that the Commission should have assessed that non-cooperation in the light of Article 18 of Regulation 2016/1036, which allows it to disregard the information provided by non-cooperative parties and to rely on the best available information in order not to infringe the appellant’s rights of defence. Since the exporting producer’s non-cooperation was unknown to Zhejiang until the time the Commission lodged its defence, it submits that it did not raise a new plea in law, as the General Court incorrectly held.
46The Commission disputes the merits of the first ground of appeal.
Findings of the Court
47As a preliminary point, it should be recalled that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the 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 (judgment 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 and the case-law cited).
48Furthermore, in performing their duty to provide information, the EU institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned must have been placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (judgment of 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 99 and the case-law cited).
49Lastly, although the applicant cannot be required to show that the Commission’s decision would have been different in the absence of the procedural irregularity in question, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself had there been no irregularity, the fact remains that the existence of an irregularity relating to the rights of the defence can result in the annulment of the measure in question only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the rights of the defence (see, to that effect, judgment 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, paragraphs 78 and 79 and the case-law cited).
50It is in the light of that case-law that the first ground of appeal must be examined.
51In the present case, it should be noted that the General Court, in the first place, in paragraphs 80 to 88 of the judgment under appeal, recalled the relevant provisions of EU law and the settled case-law relating to the rights of the defence.
52In the second place, in paragraphs 91 to 94 of the judgment under appeal, the General Court analysed the methodology used by the Commission to calculate Zhejiang’s dumping margin. Thus, it referred, in paragraphs 95 to 109 of the judgment under appeal, to exchanges of information between the Commission and Zhejiang and, in paragraphs 110 to 115 of the judgment under appeal, to the explanations provided by the Commission to Zhejiang.
53In the third place, the General Court concluded, in paragraph 117 of the judgment under appeal, that the complaints put forward by Zhejiang did not permit a finding that the Commission had infringed the obligation to disclose all the essential facts and considerations in good time. It examined those complaints in paragraphs 118 to 130 of the judgment under appeal, setting out the reasons why they had to be rejected.
54In that regard, first, as regards Zhejiang’s complaint that the General Court erred in law in finding that the obligation laid down in Article 20(2) and (4) of Regulation 2016/1036 was satisfied, even though the full list of the PCNs and the cost data of the Indian, US and EU producers had not been established, it must be held that Zhejiang has failed to show how the settled case-law of the Court on the protection of confidential data, referred to in paragraphs 85 and 86 of the judgment under appeal, has been misinterpreted or misapplied.
55Zhejiang confines itself to criticising the conclusion reached by the General Court without, however, showing that that court infringed the case-law referred to in paragraph 48 of the present judgment, according to which the EU institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information.
56However, in so doing, Zhejiang is in fact asking the Court to substitute its own assessment of the facts and evidence for that made by the General Court and, therefore, that complaint, in accordance with settled case-law, is inadmissible (see, to that effect, judgment 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 160 and the case-law cited).
57Furthermore, Zhejiang has not succeeded in establishing, as required by the case-law referred to in paragraph 49 of the present judgment, that the General Court failed to find that there had been a procedural irregularity during the administrative procedure which could have resulted in that procedure having a different outcome, thus specifically infringing its rights of defence.
58Secondly, it should be noted that Zhejiang’s complaint to the effect that the General Court erred in law when it held, in paragraph 118 of the judgment under appeal, that, irrespective of the determination of the most closely resembling product type to be compared for the purposes of determining the normal value of the product types exported without corresponding domestic sales in the analogue country, that determination of the normal value cannot be regarded as incorrect, since appropriate coefficients were applied in order to adjust that normal value.
59The General Court found, in paragraph 110 of the judgment under appeal, that Zhejiang was informed of a range of normal value for each PCN corresponding to the PCN exported to the European Union, a dumping margin range for each PCN exported to the European Union, coefficients based on data from the EU and US producers which had been used to determine the normal value of the PCNs without such correspondence, and an example of how those coefficients were applied. It concluded that those data were sufficient, without the disclosure of the confidential data being necessary, to determine the dumping margins for the PCNs without correspondence.
60The General Court held, in the alternative, in paragraph 118 of the judgment under appeal, first, that Zhejiang had not substantiated its claims and, secondly, that even if the Commission had erred in determining the most closely resembling product type to be compared, that did not mean that the determination of the normal value was incorrect, since appropriate coefficients had been applied in order to adjust the normal value of the product in question.
61In those circumstances, it cannot be held that the General Court erred in law in paragraph 118 of the judgment under appeal.
62Thirdly, Zhejiang’s argument that the General Court reversed the burden of proof as to the existence of more appropriate PCNs so that, in the absence of disclosure of the PCN list, Zhejiang was not in a position to submit better proposals to the Commission as to the adjustments necessary for the purposes of the price comparison cannot succeed.
63In that regard, it should be noted that the establishment by the Commission of a definitive anti-dumping duty does not mean that the proceedings brought before the Courts of the European Union in order to challenge that anti-dumping duty are not adversarial. With the exception of grounds involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (see, to that effect, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 25 and the case-law cited).
64It cannot therefore be held that the General Court reversed the burden of proof as regards the existence of more appropriate PCNs.
65Fourthly, it is necessary to reject Zhejiang’s complaint that the General Court distorted the facts in so far as it referred, in paragraphs 91, 118 and 126 of the judgment under appeal, to the six PCNs of the analogue country as having all been provided by the Indian exporting producer, whereas that Indian exporting producer does not manufacture such products and, in so far as it stated, in paragraph 125 of the judgment under appeal, that the normal value of those products was determined by reference to data from EU producers for the most closely resembling product type.
66It must be borne in mind that an alleged distortion of the facts or evidence must be obvious from the documents on the Court’s file without there being any need to carry out a new assessment of the facts and evidence (judgment 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 117 and the case-law cited).
67In addition, where an appellant, in the context of an appeal, alleges distortion of the evidence by the General Court, it must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in its view, led to such distortion (see, to that effect, judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 16 and the case-law cited).
68In that regard, contrary to Zhejiang’s assertions, the General Court did not find that the PCNs of the analogue country were all provided by the Indian exporting producer. The General Court noted, in paragraphs 91 to 126 of the judgment under appeal, that the six PCNs of the analogue country were not sold by that exporting producer and that the Commission had used the most closely resembling product types sold by EU producers and applied the appropriate coefficients to those product types on the basis of the production costs of the EU and US producers.
69Fifthly, Zhejiang’s complaint that the General Court erred in law in paragraph 127 of the judgment under appeal, in so far as it failed to find that the Commission was required to apply the ‘ordinary course of trade’ test prior to using sales prices in dumping determinations under Article 2 of Regulation 2016/1036, must be regarded as manifestly unfounded.
70In that regard, it should be noted that the General Court was right to find that the verification of profitability and representativity of the EU producers’ sales, required by Article 2(4) and Article 2(2) of Regulation 2016/1036, applies to sales of the like product for consumption on the domestic market of the exporting country, where those sales are used to determine the normal value. In addition, the General Court held, without erring in law, that that is not the case in a situation in which the normal value for those product types not sold by the Indian exporting producer was constructed in accordance with Article 2(3) and (7) of that regulation.
71Sixthly, Zhejiang’s complaint regarding the non-cooperation of the Indian exporting producer and the Commission’s failure to carry out an on-the-spot verification visit and draw the appropriate conclusions from that exporting producer’s refusal to cooperate cannot succeed.
72In that regard, it should be recalled that the General Court found, in paragraphs 135 to 138 of the judgment under appeal that investigations in third countries are subject to the agreement of the undertakings concerned which, in the present case, was refused by the Indian exporting producer, and that Zhejiang was informed of that refusal. Furthermore, the General Court held, in paragraph 139 of that judgment, that Article 18(6) of Regulation 2016/1036 had been invoked out of time and that, in any event, it could not be inferred from that provision that the Commission was required to disregard the data provided by the Indian exporting producer.
73The General Court did not commit any error of law in doing so. First, it is expressly stated in Article 16(2) of Regulation 2016/1036 that investigations that the Commission may carry out in third countries are subject to the agreement of the undertakings concerned. Secondly, the General Court cannot be criticised for having concluded that Article 18(6) of Regulation 2016/1036 was not relevant since it could not be inferred from that provision that the Commission was required to disregard the data provided by the Indian exporting producer on account of its non-cooperation.
74It follows from all of the foregoing considerations that the first ground of appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
The second ground of appeal
Arguments of the parties
75By the second ground of appeal, Zhejiang submits, first, that the General Court erred in law in finding that the legality of EU measures adopted in accordance with Article 2(7) of Regulation 2016/1036 could not be challenged in the light of the Protocol on the Accession of China to the WTO. In the alternative, Zhejiang submits that the General Court erred in law in finding that Article 2(7) of Regulation 2016/1036 constitutes an exception to Article 2(1) to (6) of that regulation. Secondly, Zhejiang submits that the General Court failed to rule, in paragraph 154 et seq. of the judgment under appeal, on its argument concerning the inaccurate information provided to the Commission by the Indian exporting producer, even though it appropriately set out that argument in paragraph 150 of that judgment.
76In that regard, Zhejiang submits that Section 15(a) and (d) of the Protocol on the Accession of China to the WTO ceased to apply on 11 December 2016, with the result that the People’s Republic of China is not subject to the application of the ‘analogue country’ rules as from that date. However, in the present case, the notice of initiation of the Commission procedure entered into force on 12 December 2016, without the Commission having commented on the effects of the expiry of the time limit laid down in that protocol. Zhejiang takes the view that as from the expiry of the transition period of the Protocol on the Accession of China to the WTO, the European Union must, as a general rule, use Chinese domestic production costs and prices for the purposes of determining the normal value for Chinese exporting producers. Thus, according to Zhejiang, the General Court erred in law in paragraph 159 of the judgment under appeal, in so far as it found that Article 2(7) of Regulation 2016/1036 is the expression of the EU legislature’s intention to adopt, in that area, an approach specific to the EU legal order even after the accession of the People’s Republic of China to the WTO.
77As regards the review of EU measures in the light of WTO law, Zhejiang submits that the first exception, provided for in the judgment of 7 May 1991, Nakajima v Council (C‑69/89, EU:C:1991:186), and set out in paragraph 157 of the judgment under appeal, is satisfied in the present case. In that regard, Zhejiang argues that Article 2(7) of Regulation 2016/1036 constitutes an exception to the basic rules for determining dumping and that, although that provision makes no reference to the Protocol on the Accession of China to the WTO, it must be interpreted in accordance with EU legislation. Furthermore, that exception cannot be applied to imports from China after the expiry of that protocol, with the result that, from the date of expiry of that protocol, the basic rules set out in Article 2(1) to (6) of Regulation 2016/1036 should apply to those imports. It concludes that the General Court erred in law, in paragraphs 159 to 162 of the judgment under appeal, in so far as it held that the first exception was not applicable in the present case.
78In the alternative, Zhejiang submits that Article 2(7) of Regulation 2016/1036 constitutes an exception authorised by Article 2(1) to (6) of that regulation and to the corresponding provisions of Article 2 of the Anti-Dumping Agreement, which is specifically authorised by virtue of the application of the Protocol on the Accession of China to the WTO and only in so far as it remains in force. Thus, it considers that Article 2(7) of Regulation 2016/1036 constitutes a third exception to the settled case-law according to which the Agreement establishing the WTO and the agreements in Annexes 1 to 3 to that agreement are not, in principle, among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed. It also submits that the Commission infringed Article 22(a) of that regulation and that protocol, Articles 2.1 and 2.2 of the Anti-Dumping Agreement and Article VI of the GATT 1994.
79Zhejiang objects to the Court making a substitution of grounds and submits that the Commission’s reasoning is wrong in law. In that regard, it submits that the European Union had been bound by the provisions of the Anti-Dumping Agreement for several years when the request for an expiry review of the anti-dumping measures at issue was submitted in September 2018. It cites several examples of initiation of the expiry review of anti-dumping measures following requests made to the Commission after 11 December 2016, in which it continued to apply Article 2(7) of Regulation 2016/1036.
80In addition, Zhejiang adds that the General Court failed to respond to its argument concerning the choice of India as analogue country and the inaccuracies in the information provided by the Indian exporting producer, summarised in paragraph 151 of the judgment under appeal.
81The Commission contends, primarily, that the second ground of appeal is manifestly unfounded and considers, in the alternative, that if the Court upholds the second ground of appeal, it should make a substitution of grounds since Zhejiang’s argument cannot, in any event, succeed.
82In that regard, the Commission submits that Zhejiang’s argument is based on an erroneous premiss concerning the application ratione temporis of the relevant WTO rules. The Commission states that any WTO rule subsequent to the cessation of the application of Section 15(a)(ii) of the Protocol on the Accession of China to the WTO applies only to investigations based on complaints lodged after 11 December 2016, the date of that cessation. The Commission initiated the expiry review of the anti-dumping measures at issue on 10 December 2016 on the basis of a request lodged on 8 September 2011. In that regard, it is clear from Article 18.3 of the Anti-Dumping Agreement that the relevant time for determining the applicable law is the time of receipt of a request.
Findings of the Court
83As regards the Agreement establishing the WTO and the agreements in Annexes 1 to 3 to that agreement, it is settled case-law that, taking account of their nature and structure, they are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions (judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 44 and the case-law cited).
84In that regard, the Court has held, in particular, that to accept that the courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject matter and purpose of the agreements referred to in the previous paragraph that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if admitted, would risk introducing an anomaly in the application of the WTO rules (judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 45 and the case-law cited).
85It is only in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, that the Court has accepted that it is for the Courts of the European Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of those agreements or a decision of the WTO Dispute Settlement Body establishing non-compliance with those agreements (see, to that effect, judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 47 and the case-law cited).
86The first such situation is where the European Union intends to implement a particular obligation assumed in the context of the agreements referred to in paragraph 83 of the present judgment and the second is where the EU act at issue refers explicitly to specific provisions of those agreements (judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 48 and the case-law cited).
87It is therefore in the light of those criteria that it is necessary to determine, in the present case, whether the validity of Article 2(7) of Regulation 2016/1036 can be examined in the light of the Protocol on the Accession of China to the WTO.
88As regards Article 2(7) of Regulation 2016/1036 on the determination of the normal value of imports from a non-market economy country which is a member country of the WTO, it must be recalled, in the first place, that the Court has already held that that provision is the expression of the EU legislature’s intention to adopt, in that area, an approach specific to the EU legal order (see, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 47 and 48).
89That finding is not called in question by the fact that recital 3 of Regulation 2016/1036 states that the rules of the Anti-Dumping Agreement should be reflected in EU legislation ‘to the best extent possible’. That expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of the Anti-Dumping Agreement when adopting that regulation, it did not, however, show the intention of transposing all those rules in that regulation. The conclusion that the purpose of Article 2(7) of Regulation 2016/1036 is to implement the particular obligations laid down in Article 2 of the Anti-Dumping Agreement can therefore in no case be based in isolation on the wording of that recital (see, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52).
90In the second place, it is apparent from the very wording of Article 2(7) of Regulation 2016/1036 that the latter does not refer expressly to specific provisions of the Protocol on the Accession of China to the WTO.
91In those circumstances, it cannot be claimed that the General Court erred in law in finding, in paragraphs 156 to 162 of the judgment under appeal, that that protocol could not be relied on to challenge the validity of Implementing Regulation 2018/330.
92Furthermore, as regards Zhejiang’s argument that the General Court failed to respond, in paragraph 154 of the judgment under appeal, to Zhejiang’s argument concerning the choice of India as analogue country and the inaccuracies in the information provided by the Indian exporting producer, suffice it to note, in that regard, that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties to the case, the General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 43 and the case-law cited).
93In the present case, the General Court examined that line of argument and examined the second and third parts of the second plea in paragraphs 163 to 182 of the judgment under appeal. Having noted, in paragraph 181 of that judgment, that the statement of reasons contained in paragraph 170 of that judgment clearly and unequivocally set out the Commission’s reasoning, thus enabling Zhejiang to defend its rights and for the EU Courts to exercise their power of review, it must be held that the General Court did not breach the obligation to state reasons incumbent on the EU Courts.
94It follows that the second ground of appeal must be rejected.
The third ground of appeal
Arguments of the parties
95Zhejiang submits that the General Court erred in law in paragraphs 195, 196, 202, 203, 205, 206, 208, 209 and 211 of the judgment under appeal by incorrectly applying Article 2(10) and (11) and Article 11(9) of Regulation 2016/1036.
96In that regard, Zhejiang argues that Article 2 of Regulation 2016/1036 is based on the principle of fair comparison between the normal value and export prices. To that end, it considers that, first, under Article 2(10) of that regulation, account must be taken of the differences in factors which are claimed, and demonstrated, to affect prices and, therefore, price comparability. Secondly, Article 11(9) of that regulation requires the Commission to apply, in all review investigations, provided that circumstances have not changed, the same methodology as in the investigation that led to the imposition of the anti-dumping duty. According to Zhejiang, that obligation is subject, under Article 2 of Regulation 2016/1036, to the obligation to ensure a fair comparison between the normal value and the export price.
97Zhejiang submits that the Commission relied on Article 11(9) of Regulation 2016/1036 to reject its request to amend the PCN structure in order to take account of the change in circumstances since the original investigation, and that it warned the Commission of the erroneous determination of the alphanumeric elements of PCNs at an early stage of the procedure. The PCNs used by the Commission led to a distortion of the price comparisons and to an incorrect positive finding of dumping in so far as it cannot be ruled out that the Commission carried out an unfair comparison between seamless pipes and tubes of stainless steel intended for military or nuclear uses and exports by Zhejiang of seamless pipes and tubes of stainless steel for ordinary commercial use.
98Thus, Zhejiang submits that the General Court was wrong to state, in paragraph 205 of the judgment under appeal, that comparable sales on the Indian domestic market did not include special grades of steel normally used for special military or nuclear products, whereas the Indian, US and EU producers that completed the questionnaires during the review procedure admitted that they produce seamless tubes and pipes of stainless steel intended for military or nuclear uses from standard steel grades. In addition, Zhejiang submits that it submitted an affidavit by an expert who, contrary to the General Court’s finding in paragraph 208 of the judgment under appeal, stated with sufficient precision that standard steel can be used for the manufacture of seamless pipes and tubes of stainless steel intended for nuclear uses even though the selling price and cost of nuclear products are much higher than those of ordinary products.
99Zhejiang submits, first, that the Commission could not conclude, on the basis of unverified information from the Indian exporting producer, that the latter did not produce seamless pipes and tubes of stainless steel intended for nuclear or military uses from standard steel grades when a brochure from that exporting producer does not exclude that it is able to manufacture such products. Secondly, it submits that the Commission cannot, in any event, impose on it the burden of proving such a possibility. In addition, Zhejiang submits that, in paragraph 207 of the judgment under appeal, the General Court misinterpreted its arguments, which related not to the price of the products but to the higher production costs that the Commission took into consideration when establishing the coefficients used to adjust the normal value in the present case.
100Zhejiang further submits that the incorrect choice of the PCN structure led to the adjustment provided for in Article 2(10)(k) of Regulation 2016/1036 no longer being possible. Contrary to what the General Court found in paragraph 195 of the judgment under appeal, Zhejiang submits that it demonstrated that significant differences in production costs were reflected in the product selling prices and that an adjustment was therefore necessary. Thus, the Commission failed to take into account the change in circumstances that occurred during the review procedure, with the result that, by failing to find such an omission, the General Court infringed both the case-law of the WTO Panels and Appellate Body as well as the judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council (C‑15/12 P, EU:C:2013:572), according to which, if, at the review stage, the methodology used in the original investigation is no longer in conformity with Article 2 of Regulation 2016/1036, the Commission is obliged to no longer apply that methodology.
101The Commission disputes the merits of the third ground of appeal.
Findings of the Court
102First of all, Zhejiang’s argument that the General Court erred in law by misapplying Article 2(10) and (11) and Article 11(9) of Regulation 2016/1036 cannot be upheld.
103In that regard, it must be recalled that, according to the wording of Article 11(9) of Regulation 2016/1036, in all review investigations, the Commission must, provided that circumstances have not changed, apply the same methodology as that used in the original investigation leading to the imposition of the anti-dumping duty in question, with due account being taken of, inter alia, Article 2 of that regulation.
104Thus, the exception allowing the EU institutions to apply, in a review procedure carried out pursuant to Article 11(2) of Regulation 2016/1036, a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, for a derogation from or exception to a general rule must be interpreted narrowly (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, EU:C:2013:572, paragraph 17 and the case-law cited).
105In paragraph 202 of the judgment under appeal, the General Court noted that, as the circumstances had not changed, the Commission had used the same methodology as in the investigation which led to the imposition of the anti-dumping duty, as required by Article 11(9) of Regulation 2016/1036.
106Although it is indeed for the EU institutions to show that the circumstances have changed for the purpose of applying a method different from that used in the initial examination (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, EU:C:2013:572, paragraph 18), the fact remains that, in the present case, the Commission neither alleged a change in circumstances nor applied a different method.
107Next, Zhejiang’s argument that the General Court distorted the facts in so far as it found, first, that Zhejiang had not demonstrated that the prices of tubes and pipes made by hot piercing and hot extraction took account of significant differences in production costs and, secondly, that comparable sales on the Indian domestic market did not include special grades of steel usually used for special military or nuclear products, must also be rejected.
108No distortion of the facts is obvious from the documents on the Court’s file, as required by the case-law referred to in paragraph 66 of the present judgment. In the first place, the General Court, in paragraph 205 of the judgment under appeal, first, gave reasons for rejecting Zhejiang’s claims relating to the alleged production of products of special grades of steel for nuclear and military use by the Indian exporting producer, taking the view that the reference to a brochure from the Indian exporting producer which refers generally to the nuclear and military sector is not sufficient to conclude that it actually produces such products. Secondly, the General Court found that the references to EU and US producers did not support Zhejiang’s claims relating to the production of such products in India.
109The General Court’s reference, in paragraph 207 of the judgment under appeal, to the ‘prices’ rather than the ‘costs’ of US producers does not call into question the findings made in paragraphs 205 and 206 of that judgment, with the result that it is irrelevant.
110In the second place, the General Court concluded, in paragraph 208 of the judgment under appeal, without ruling on the admissibility of an expert’s affidavit submitted by Zhejiang at a late stage in the proceedings, that that statement, expressed in general terms, was not such as to call into question its findings relating to the characteristics of the PCNs.
111In the third and last place, as regards the alleged failure by the General Court to take into account significant differences in production costs that were reflected in the sales prices of the different types of products at issue, it is apparent from paragraph 195 of the judgment under appeal that the General Court found, first, that the production methods used for each product type were not, in principle, relevant since the point of comparison is the final product type, irrespective of the production methods used to manufacture it.
112Secondly, the General Court concluded that Zhejiang had neither claimed nor demonstrated before it that the alleged differences in production methods had an impact on whether the product types concerned were identical or similar.
113It follows that the third ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The fourth ground of appeal
Arguments of the parties
114Zhejiang submits that, in paragraphs 230 to 232, 234, 236, 239, 241 and 245 to 251 of the judgment under appeal, the General Court erred in law and distorted the facts in so far as it failed to find that the methodology adopted by the Commission for determining the coefficients applied to the normal value of seamless pipes and tubes of stainless steel without direct correspondence with the exported PCNs was incorrect and did not guarantee a fair normal value for Zhejiang under Article 2 of Regulation 2016/1036.
115In the first place, Zhejiang submits that the General Court infringed, in paragraphs 230 to 232 of the judgment under appeal, Article 2(10) and (11) and Article 20(2) and (4) of Regulation 2016/1036 by summarily rejecting its arguments concerning substantial deficiencies in the way in which the Commission had made the dumping margin calculations for the majority of Zhejiang products exported to the European Union which were not directly comparable to seamless pipes and tubes of stainless steel sold by the Indian exporting producer on its domestic market.
116In the second place, Zhejiang submits that the General Court erred in law and distorted the facts by finding, in paragraph 234 of the judgment under appeal, that the Commission had used, ‘on a residual basis’, information concerning seamless pipes and tubes of stainless steel belonging to the category ‘Casing and tubing, of a kind used in drilling for oil and gas’, for which the sales of the EU producers formed the basis for the determination of the normal value. According to Zhejiang, the Commission was required to apply the ‘ordinary course of trade’ test. Secondly, the Commission stated that it had used the data provided by the EU producers in order to determine the normal value of those products, without using the term ‘residual’, and, therefore, Zhejiang submits that the Commission used the selling price of a specific PCN in the European Union. Nevertheless, according to Zhejiang, the Commission admitted that it had constructed the normal value of that PCN without, however, explaining how it had done so. Zhejiang submits, first, that Article 2(7) of Regulation 2016/1036 provides for a hierarchy of methods for determining the normal value and does not allow for ‘residual’ information to be used. Secondly, it submits that those words, which are too generic, allow the Commission to depart from the various possibilities set out in Article 2(7) of Regulation 2016/1036, which all refer to the normal value, including the constructed normal value, and not to undetermined elements of sales prices in the European Union.
117In the third place, Zhejiang submits that, in paragraph 236 of the judgment under appeal, the General Court distorted the facts relating to the application of the coefficients of the EU and US producers to the sales prices of the Indian exporting producer. Thus, Zhejiang submits that it provided the Commission with numerous pieces of evidence, including an affidavit, showing that the production costs of seamless steel tubes and pipes for nuclear or military uses are much higher than the costs of production of seamless pipes and tubes of stainless steel intended for ordinary use. Accordingly, it concludes that the General Court distorted the facts when it found, in paragraph 239 of the judgment under appeal, that it merely made unsubstantiated assertions by stating that tubes and pipes intended for nuclear or military uses entail much higher production costs than seamless pipes and tubes of stainless steel intended for ordinary commercial use.
118In the fourth place, Zhejiang submits that the General Court distorted the facts when it found, in paragraph 241 of the judgment under appeal, that the Commission had two possibilities for the purpose of determining the coefficients to be applied and decided, in exercising its broad discretion, not to use the alternative method which it had proposed. It also drew erroneous conclusions in paragraphs 245 to 251 of the judgment under appeal. According to Zhejiang, the use of standard cost and price lists of the EU and US industry was the only option available to the Commission to determine the coefficients that would not be inflated by the higher production costs, in the United States and the European Union, of seamless tubes and pipes of stainless steel intended for military or nuclear uses. After recalling the various factors influencing the cost of a PCN, Zhejiang submits that the Commission arbitrarily and incorrectly inflated the coefficients relating to the quality and finish of steel, whereas the coefficients used by the Commission also relate to the differences between PCNs as regards external diameter, wall thickness and numerous other components of PCNs, which were not excluded by the Commission when determining the cost difference for steel grade and finishing costs. Zhejiang proposes the correct methodology for a negative finding of dumping and observes that the incorrect methodology applied by the Commission to determine the coefficients had an impact on at least two thirds of its total exports.
119The Commission disputes the merits of the fourth ground of appeal.
Findings of the Court
120In the first place, it should be noted that it is apparent from paragraphs 230 and 231 of the judgment under appeal that the General Court rejected Zhejiang’s arguments seeking to demonstrate the error in the calculation of the dumping margin for the majority of its exports to the European Union on account of the fact that, according to the latter, those exports were not directly comparable to stainless steel tubes and pipes sold by the Indian exporting producer on its domestic market.
121In so far as those arguments were based, in essence, on the same reasoning as that put forward in support of Zhejiang’s plea alleging infringement of its rights of defence, it must be held that the General Court rejected them without erring in law.
122In the second place, it should be noted that Zhejiang’s reading of paragraph 234 of the judgment under appeal is incorrect.
123In that paragraph, the General Court, responding to Zhejiang’s argument that the European Union could have been used as an ‘analogue country’, found that the Commission had chosen India as analogue country and that ‘EU producers’ sales for the two PCNs referred to by [Zhejiang] were used only on a residual basis’. By those words, the General Court merely highlighted the fact that the Commission relied on data from EU producers only for PCNs for which there were no similar PCNs sold by the Indian exporting producer.
124In the third place, as regards Zhejiang’s argument relating to the application of the ‘ordinary course of trade’ test, it should be noted that Zhejiang has not specified, in that regard, the paragraphs of the judgment under appeal which are vitiated by an error of law and, accordingly, that argument is inadmissible at the appeal stage.
125In any event, that argument is unfounded in so far as Article 2(7)(a) of Regulation 2016/1036 does not refer to the ‘ordinary course of trade’ test.
126In the fourth place, Zhejiang’s argument that the General Court distorted the facts in paragraph 236 of the judgment under appeal, in so far as it found that the Commission used the adjusted prices of the Indian exporting producer for Zhejiang’s exports of seamless pipes and tubes of stainless steel belonging to the category ‘Casing and tubing, of a kind used in drilling for oil and gas’.
127Contrary to Zhejiang’s assertions, the General Court found, in that paragraph, first, that the coefficients were determined on the basis of the production costs of US or EU producers and were applied to the sales prices of the Indian exporting producer.
128Secondly, the General Court rejected Zhejiang’s argument that the dumping margin for most of its exported products resulted from data from the United States or the European Union. It found, in that regard, that the determination of the normal value for most of Zhejiang’s exported products to the European Union was based on data provided by the Indian exporting producer, and that the fact that the Commission had used coefficients calculated on the basis of the EU or US producers’ production costs to adjust the normal value of the most closely resembling product type of the Indian exporting producer was not such as to call into question that finding.
129In the fifth place, in accordance with the case-law referred to in paragraph 56 of the present judgment, Zhejiang’s argument directed against paragraph 239 of the judgment under appeal must be rejected as inadmissible at the appeal stage.
130In so far as Zhejiang challenges the General Court’s finding that its arguments seeking to establish that seamless pipes and tubes of stainless steel intended for nuclear or military uses, even those made from standard steel, entail much higher production costs than the manufacture of seamless pipes and tubes of stainless steel intended for commercial use, were not substantiated, and the finding that the reference to several annexes did not enable the General Court to identify, with precision, the pleas in law and arguments relied on, without, however, establishing that the General Court erred in law, Zhejiang must be regarded as seeking, in essence, that the Court of Justice substitute its own assessment of the evidence for that of the General Court.
131In the sixth place, Zhejiang’s argument that the use of standard cost and price lists of the EU and US industry was the only option available to the Commission in order to correctly determine the coefficients to be applied must be rejected as unfounded.
132In that regard, in paragraphs 241 and 242 of the judgment under appeal, the General Court found, without erring, that the reasonableness of the adjustment and the fairness of the comparison resulting from the adjustment based on that estimate cannot be assessed in the light of the existence or non-existence of more appropriate alternative methods. Thus, the General Court concluded, explaining the reasons why the Commission had not used the alternative methods, that Zhejiang had not established any unlawfulness in the method used by the Commission.
133In the seventh and last place, Zhejiang’s challenge of paragraphs 245 to 251 of the judgment under appeal must, in accordance with the case-law referred to in paragraph 56 above, be rejected as inadmissible at the appeal stage, in so far as it seeks, in essence, to have the Court of Justice substitute its own assessment of the evidence for that of the General Court, without any error of law or distortion being established.
134It follows that the fourth ground of appeal must be rejected.
The fifth ground of appeal
Arguments of the parties
135Zhejiang submits that the General Court erred in law in paragraphs 268 and 269 of the judgment under appeal in so far as it included, in its conclusions regarding the impact on the European Union of price undercutting by Zhejiang’s seamless pipes and tubes of stainless steel, prices charged by the EU industry for tubes and pipes intended for military or nuclear uses and prices of Zhejiang’s seamless tubes and pipes of stainless steel used in the inward processing customs arrangements, contrary to Article 3(2), (3), (5) and (6) and Article 11(2) of Regulation 2016/1036.
136In that regard, Zhejiang submits that, during the review procedure, imports into the European Union of seamless pipes and tubes of stainless steel from China decreased by comparison with those from India. Thus, it referred to the fact that Zhejiang’s seamless pipes and tubes of stainless steel were lower than the prices of Indian exports of seamless pipes and tubes of stainless steel to the European Union during the same period. Referring to statistical data indicating that the export prices of Chinese seamless pipes and tubes of stainless steel have always been higher than the export prices of Indian seamless pipes and tubes of stainless steel exported to the European Union, Zhejiang submits that the Commission erred in basing its assessment of the injury to the EU industry and the likely recurrence of that injury on the undercutting of prices by Chinese exporters of seamless pipes and tubes of stainless steel in relation to the prices of the EU industry. By upholding that assessment in paragraph 267 of the judgment under appeal, the General Court also erred in law.
137In addition, according to Zhejiang, the General Court erred when it approved, in paragraph 269 of the judgment under appeal, the Commission’s approach to the effect that imports from India or other third countries were not the only factor causing injury to the EU industry during the review investigation period. It takes the view that the General Court’s assertion, whereby the larger discrepancy noted by Zhejiang results from the failure to take account of the price of imports under the inward processing arrangements, ignores the fact that Zhejiang’s seamless pipes and tubes of stainless steel subject to the inward processing arrangements have never been imported into the European Union and have never been placed in free circulation on the EU market. It concludes from this that the General Court erred in law in paragraphs 268 and 269 of the judgment under appeal when it included, in its findings relating to price undercutting, Zhejiang’s prices for seamless pipes and tubes of stainless steel used under the inward processing customs arrangements.
138The Commission disputes the merits of the fifth ground of appeal.
Findings of the Court
139Zhejiang’s argument that the General Court wrongly concluded, in paragraph 269 of the judgment under appeal, that imports from India or other third countries were not the only factor that caused injury to the EU industry during the review investigation period, and therefore rejected its arguments, cannot succeed.
140The General Court noted, in paragraphs 267 to 269 of the judgment under appeal, that the finding of the existence and the likelihood of recurrence of injury caused to the EU industry was based on the level of undercutting by Chinese imports and that the Commission had taken account of Indian imports in the context of the various injury causation factors. Furthermore, the General Court examined Zhejiang’s arguments calling that finding into question and rejected them.
141Since no error of law or distortion has been established, it must be held that, in accordance with the case-law referred to in paragraph 56 of the present judgment, Zhejiang’s argument seeks, in essence, that the Court of Justice substitute its own assessment of the evidence for that of the General Court and, accordingly, is inadmissible at the appeal stage.
142Furthermore, it should be noted that Zhejiang’s argument that the General Court erred in finding, in paragraph 269 of the judgment under appeal, that the larger discrepancy it noted between the price of Indian imports and that of Chinese imports results from the failure to take into account the price of imports under the inward processing arrangements, when it has never imported, into the European Union, seamless pipes and tubes of stainless steel subject to the inward processing arrangements is based on a misreading of the judgment under appeal.
143In that regard, it should be noted that, in that paragraph, the General Court referred not to Zhejiang’s imports but to imports from China in general. Thus, the General Court rejected Zhejiang’s argument that the price of Indian imports had always been ‘substantially’ lower than that of Chinese imports, finding that the average price of Indian imports, although lower than the average price of Chinese imports, was very close to the latter during the review investigation period and that the larger discrepancy noted by Zhejiang was due to the failure to take account of the price of imports under the inward processing arrangements.
144It follows from all of the foregoing considerations that the fifth ground of appeal must be rejected and that, consequently, the appeal must also be dismissed in its entirety.
Costs
145Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. In accordance with Article 138(1) of those rules, which applies to appeal proceedings 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.
146Since the Commission has applied for costs to be awarded against Zhejiang and the latter has been unsuccessful, Zhejiang must be ordered to bear its own costs and to pay those incurred by the Commission.
Operative part
On those grounds, the Court (Ninth Chamber) hereby:
1.Dismisses the appeal;
2.Orders Zhejiang Jiuli Hi-Tech Metals Co. Ltd, in addition to bearing its own costs, to pay those incurred by the European Commission.
Delivered in open court in Luxembourg on 5 May 2022.
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