Contents
Judgment of the General Court (First Chamber)6 July 2022note(Dumping — Imports of steel road wheels originating in China — Imposition of a definitive anti-dumping duty and definitive collection of the provisional duty — Articles 17(4), 18 and 20 of Regulation (EU) 2016/1036 — Lack of cooperation — Insufficient information provided to the Commission)In Case T‑278/20,Zhejiang Hangtong Machinery Manufacture Co. Ltd, established in Taizhou (China),Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd, established in Ningbo (China),represented by K. Adamantopoulos and P. Billiet, lawyers,vEuropean Commission, represented by K. Blanck and G. Luengo, acting as Agents,THE GENERAL COURT (First Chamber),composed of H. Kanninen, President, O. Porchia (Rapporteur) and M. Stancu, Judges,Registrar: I. Pollalis, Administrator,having regard to the written part of the procedure,further to the hearing on 14 December 2021,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.…
Background to the dispute…
3The applicants are two companies governed by Chinese law established in China. Together with Ningbo Wheelsky Company Limited (‘WS’), a company governed by Samoan law, HT and TC form part of the Hangtong group (‘the HT group’); all three are related companies.
4Within that group, HT produces steel wheels, sold both on the Chinese domestic market and for export, whereas TC is a trader and WS receives payment for sales made to customer-importers. For certain export transactions, the HT group uses Ningbo Ningdian International Trade Co., Ltd (‘ND’), a customs agent which is not linked to the applicants.…
Forms of order sought
25The applicants claim that the Court should:– annul the contested regulation in so far as it relates to the applicants;– order the Commission to pay the costs.
26The Commission contends that the Court should:– dismiss the action as unfounded;– order the applicants to pay the costs.
Law…
The second plea in law, alleging, first, a manifest error of assessment and infringement of Article 2(6a), (8), (10) and (11), Article 3, Article 6, Article 9(6) and Article 18(1) and (3) of the basic regulation and of paragraph 3 of Annex II to the WTO Anti-Dumping Agreement and, secondly, infringement of Articles 2 and 3, Article 6(6) and (8), Article 9(4) and Article 18(1) and (3) of the basic regulation and paragraph 3 of Annex II to the WTO Anti-Dumping Agreement
31The second plea in law is divided into three parts.
32By the first part, the applicants claim, in essence, that the Commission was wrong to take the view that the export price data which they had communicated to it were unreliable. By the second part, they complain that the Commission failed to take account of their efforts to achieve the success of the investigation and did not calculate the export price on the basis of the data which they had communicated to it, even though those data were not ideal in all respects. By the third part, the applicants complain that the Commission failed to calculate the normal value and used the available data in order to determine their dumping margin.
–The first and second parts of the second plea, alleging a manifest error of assessment and infringement of Article 2(6a), (8), (9), (10) and (11), Article 3, Article 6, Article 9(6) and Article 18(1) and (3) of the basic regulation and paragraph 3 of Annex II to the WTO Anti-Dumping Agreement
33By the first two parts of the second plea, which it is appropriate to examine together, the applicants claim, in the first place, that the data which they communicated to the Commission were sufficient to enable the Commission to establish a reliable export price.
34In that regard, the applicants state that the selling prices of the steel wheels entered in the accounts of HT and TC were consistent with those mentioned on the VAT invoices and on the customs declarations of HT to TC, those prices corresponding to 90% of exports of steel wheels by the HT group to the European Union during the investigation period.
35The difference between the amounts in the VAT invoices issued by HT to TC and the customs declarations relating to exports outside China affected only 10% of their total exports to the European Union, so that the Commission had, in accordance with its general practice, the possibility of not taking account of that remaining 10%.
36In that regard, the applicants claim that the reasoning in the Commission’s statements in recitals 35 and 40 of the contested regulation is contradictory. The Commission cannot at the same time claim that there is fundamental uncertainty as to the reliability of the applicants’ accounting information, while at the same time acknowledging that the information on the normal value was reliable and verified and even though, as it accepted, the normal value represents 50% of the calculation of the dumping margin.
37The applicants state that, irrespective of the lack of accounting of WS, the export price of goods sold in the European Union could be established on the basis of the DMSAL list, which listed and identified all sales of HT to TC with a view to exporting the goods to the European Union. The data in that list could easily be cross-checked with the customs entry forms for goods exported to the European Union, the VAT invoices for export to the European Union and the supporting documents for payment by EU customers, as shown by WS’s bank statements.
38The applicants dispute the Commission’s findings that it was impossible for that institution to determine the export price with certainty, even though, in its own findings, the declared customs value corresponded to the initial commercial invoice, irrespective of the fact that, for the same operation, there could be two invoices, one concerning a link between HT and TC, the other a link between TC and ND. That means that the Commission could, on the basis of the prices charged by HT to TC or to ND, establish an export price by adjusting it, in accordance with its usual practice when it had reliable data on the normal value.
39Those data could also be compared with the Chinese customs statistics, which, contrary to what the Commission attempts to demonstrate by means of the document in Annex B.2 to the defence, were correct. The alleged unreliability of those data is due to the fact that the Commission did not take into account the corrections which the applicants made in the document in Annex C.4 to the reply. Those data coincide with the RLSALUR list which they had amended and which lists all sales by parties related to independent customers in the European Union.
40The applicants complain that the Commission failed to take the trouble to verify the total export sales of steel wheels by analysing the records of unrelated customers and export VAT invoices, as that institution had nevertheless undertaken to do in the communication which it had made to them at the same time as notification of the provisional regulation and even though seven of their eight customers within the European Union had agreed to cooperate with the Commission.
41The applicants claim that, in any event, they succeeded in proving, on the basis of the bank slips of WS, 98% of their exports to the European Union and, on the basis of the customs import forms to the European Union, 65% of exports to the European Union.
42In that regard, as regards the data relating to the import forms for the goods into the European Union, the applicants point out that, as they indicated to the Commission in their observations of 27 August 2019, they sent that institution the EUSALES listing, which identified their eight customers in the European Union, then, an updated list of those customers, with their details and, for most of them, proof of payment of customs duties on importation into the European Union. Those factors confirmed, in essence, that the export prices charged had been paid. The remainder, for which information was not provided, was due to the fact that some of their customers had not wished to provide them with the documents relating to the imports which they had made.
43The applicants add that, as is apparent from the case-law of the Court of Justice and WTO case-law, the Commission could not, in order to justify the rejection of the establishment of the export price, rely on the fact that they had not adduced evidence of a clear division between exports made in the European Union and outside the European Union, owing to the fact that they had not communicated to them a resale table relating to those exports, even though they had never been asked to do so. They claim that, in any event, the operation of the DMSAL table, which showed such a distribution, made it possible to distinguish between sales made to importers of the European Union and sales to importers established in third countries.
44In that regard, the applicants emphasise that they use a triangular system of invoicing between related companies for exports to the European Union. Under that system, the selling prices of goods entered on EU customers’ invoices from China may and do often differ from those declared to the customs authorities of the European Union for those goods at the time of their importation.
45To the extent that the transaction value reflects a sale for export with a value not less than the market value and inherent cost of the goods at issue, including the cost for freight and insurance at the EU border, the transaction value is legitimately used for EU customs valuation purposes.
46The applicants assert that the information which they had communicated to the Commission constituted by far the best available information on export sales of steel wheels, within the meaning of Annex II to the WTO Anti-Dumping Agreement. That was also noted by the hearing officer in her first report, according to which the Commission stated that the applicants had acted to the best of their ability.
47The applicants conclude from this that, by rejecting the data communicated to it, by failing to carry out the operations which the Commission had undertaken to carry out in the communication made at the time of the notification of the provisional regulation and basing its findings on information which it had not requested from them, the Commission failed to make a fair comparison of prices by using export prices, as provided for in Article 2(11) of the basic regulation.
48The applicants claim, in the second place, that, as regards the export price, the Commission ought to have made use of Article 18(3) of the basic regulation by referring to ‘ex go-down’ sales of HT to TC and ND in order to calculate the price and volume of exports to the European Union during the investigation period, so that it could, pursuant to Article 18(3) of the basic regulation, establish precisely the dumping and injury margins concerning them, without taking into account WS’s operations, in accordance with the applicable case-law, in particular paragraphs 120 and 121 of the judgment of 19 March 2015, City Cycle Industries v Council (T‑413/13, not published, EU:T:2015:164).
49In that regard, the applicants claim that the Commission never disputed the prices charged by HT to TC and ND and the values of the steel wheels declared to the customs authorities of the European Union when importing the applicants’ steel wheels. They add that the determination of the export price on the basis of such data is consistent with Article 2(8) and (9) of the basic regulation.
50They state that the Commission’s line of argument concerning the rejection of the establishment of the export price on the basis of the invoicing between HT and TC is unjustified. It is established that those prices are lower than the prices actually charged to EU customers. The determination of the export price on the basis of those data is thus such as to establish more severe anti-dumping duties than that which would have been established on the basis of the prices actually charged to EU importers.
51As regards the Commission’s objection that uncertain values cannot be applied because of Article 9(6) of the basic regulation, the applicants submit that those provisions are intended to apply even where the Commission uses Article 18 of the basic regulation in respect of sampled producers. The margins of the producers concerned are not then taken into account in the calculation of the weighted average dumping margin applicable to producers who were not included in the sample.
52In any event, the Commission does not show how, irrespective of the application of Article 9(6) of the basic regulation, the inclusion of the applicants in the sample was likely to have a significant effect on the results of the investigation.
53Finally, they claim that, under WTO rules, the Commission could not legitimately refuse to apply the provisions of Article 18(3) of the basic regulation.
54The Commission contends that those arguments should be rejected.
55In that regard, in order to respond to the applicants’ arguments, it is necessary, first, to analyse whether the documents submitted, such as the DMSAL list or the customs declarations, were sufficiently reliable to enable the Commission to establish an export price and then, secondly, to determine whether it was possible for the Commission to use Article 18(3) of the basic regulation in order to establish the export price, in circumstances in which the applicants had provided all the documents in their possession.
56As regards, first of all, the question of the reliability of the data relating to the establishment of the export price, it should be noted, as a preliminary point, that, according to the Court’s settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the Commission enjoys a broad discretion by reason of the complexity of the economic, political and legal situations which it must examine. The judicial review of such discretion 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 (see judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 68 and the case-law cited).
57The Court of Justice has also held that the General Court’s review of the evidence on which the Commission based its findings does not constitute a new assessment of the facts replacing that of the Commission. That review does not encroach on the broad discretion of that institution in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the Commission. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 69 and the case-law cited).
58Moreover, under the basic regulation, undertakings which are the subject of an anti-dumping investigation are required to provide the Commission with the information necessary to establish their dumping margin. If such information is not provided, those companies run the risk of data being taken into account other than those supplied by them pursuant to Article 18(1) of that regulation (see, to that effect, judgment of 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraph 65 and the case-law cited).
59In that regard, it should be noted that an analysis of the Commission’s document in Annex B.1 to the defence, which is not disputed by the applicants, shows, in the first place, that, in each of the seven sales channels used by the HT group to export its products, the importers forwarded the payment for the goods sold to WS, which did not have any accounts. Consequently, and irrespective of the fact that Samoan company law does not set out a requirement that they must provide certified accounts, the bank statements of WS had no probative value.
60In the second place, in all sales channels, sales were made to importers without the invoices drawn up in their name being recorded in the HT group. Either TC registered in its accounts invoices the amount of which was lower than that shown on the invoices sent to importers and, on the basis of those first invoices, made false declarations to the customs authorities as regards the export price (channel 1), or TC issued invoices in the name of the importers, but did not record them in its accounts (channels 2 and 3), or WS issued invoices which were not recorded in its accounts, in so far as Samoan law does not require companies to keep certified accounts (channels 4 and 5), or, finally, the invoices were issued by ND, which is a company external to the group and in respect of which the Commission could not obtain any information due to its lack of cooperation in the investigation (channels 6 and 7).
61In the third place, in all sales channels, with the exception of the first sales channel, export goods were sold after the goods were sold by HT or TC to ND, which, for the reasons mentioned in paragraph 60 above, meant that it was impossible for the Commission to determine the sale price actually paid by the European importers.
62The combination of all the factors mentioned in paragraphs 59 to 61 above does not permit the inference that the Commission made a manifest error in finding that the data relating to the export price were unreliable.
63That means that the applicants’ claims that they provided evidence for 98% of payments by European importers on the basis of the bank statements of WS, 90% of sales prices on the basis of the VAT invoices issued by HT and, finally, 65% of exports to the European Union on the basis of the customs declarations of those importers must be regarded as mere assertions, just like the applicants’ assertion that the Commission did not take account of the triangular trading system that they had adopted.
64Those inconsistencies were, moreover, highlighted at the hearing, during which the applicants acknowledged the impossibility for the Commission to use WS’s accounts, the lack of any accounting record of invoices from TC to European importers and, consequently, the difficulties in establishing a reliable export price in this case.
65It is therefore necessary to analyse, in the first place, whether that export price could be established, as the applicants suggest, on the basis of the DMSAL list, of the VAT invoices issued by HT to TC and whether the Commission was wrong to consider that it was impossible to establish an export price, in the absence of a table distinguishing between exports to the European Union and others, disclosure of which was not requested during the investigation.
66As regards, first of all, the DMSAL list and the VAT invoices issued by HT to TC, it should be noted that, as was pointed out at the hearing by the Commission, that evidence concerned sales made by HT to TC, that is to say intra-group and domestic sales the price of which was, consequently, different from that actually paid by the European importers. Moreover, as was confirmed at the hearing, it was impossible for the Commission to verify the reality of the exports to the European Union reported by the applicants in the absence of any credible accounts concerning those exports.
67In that regard, as regards the applicants’ argument relating to the failure to produce a table distinguishing between exports to the European Union and other exports, it should be noted that, at the hearing, the applicants first stated that such a table was pointless, in so far as all the information contained therein was already contained in the DMSAL list, and then confirmed that they would have been able to produce such a table if the Commission had made a request to them to that effect, as is apparent from the comments sent on 25 October 2019, following the notification of the provisional regulation, and finally acknowledged that they had not provided such a table because they feared that the Commission would argue that that table was not credible due to the lack of invoices to support the data.
68Those contradictory statements reveal the artificial nature of the applicants’ argument that the Commission was not entitled, in order to reject their data concerning the export price, to raise against them the failure to communicate a table showing exports to the European Union.
69Although the Commission did not use those export data, it was not solely because of the absence of such a table, but because, as is apparent in particular from recitals 32, 35 and 40 of the contested regulation, the Commission had to deal with ‘the fundamental unreliability of the company’s records’ and with the impossibility of establishing with certainty the type and number of products exported to the European Union, with the result that it was impossible for it to establish an export price on the basis of the VAT invoices issued by HT to TC. Moreover, those findings are in no way inconsistent with the fact that the Commission considered that the data relating to normal value were reliable, since those data were properly recorded in HT’s accounts, unlike the export data.
70In addition, the regulations to which the applicants refer in order to establish that the Commission departed from its usual practice with regard to the adjustment of export prices do not appear to be relevant, since the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of the applicable rules and, in particular, the provisions of the basic regulation, not on the basis of the Commission’s and the Council’s alleged previous decision-making practice (see, to that effect, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107).
71As regards, in the second place, the arguments put forward by the applicants concerning the alleged lack of diligence on the part of the investigators with respect to the European importers and concerning the documents relating to those importers, it must first of all be observed that, contrary to the applicants’ assertion, the Commission never undertook to carry out an on-the-spot investigation of those importers in order to determine the export price. It is apparent from the specific communication to the applicants accompanying the provisional regulation that that institution merely took note of their proposal to that effect in a letter of 27 August 2019 and included in Annex A.21 to the application.
72Next, apart from the fact that the applicants do not dispute the fact, set out in recital 33 of the contested regulation, that only three EU importers agreed to cooperate with the Commission, it should be noted that the declared number of those importers varied during the investigation from 8, as is apparent from the document of 27 August 2019, attached as Annex A.21 to the application, to 12 in January 2020, as is apparent from the documents in Annex A.28 to the application.
73Such a variation in the number of EU importers implies, as confirmed at the hearing by the Commission, that that institution was entitled to take the view that it had no certainty as to the reliability of the information provided by the applicants concerning those importers, with the result that it cannot be criticised for not having taken it into account or for not having approached those importers. The criticism levelled at the Commission for having infringed Article 6(4) of the basic regulation cannot therefore be upheld.
74As regards, in the third place, the arguments relating to the Chinese customs statistics, first, the summary tables of customs documents revealed inconsistencies which were highlighted by the Commission in Annex B.2 to the defence. That led the applicants to amend those tables, without, however, convincing the investigators, since they were unable to cross-check those data with the applicants’ accounting and tax data. Secondly, the reference value of the goods was expressed in those documents in kilograms and referred to total amounts of payment expressed in United States dollars, with the result that the Commission was unable to ascertain the type and quantities of products exported to the European Union, as well as the unit amounts of sales, which are, however, necessary in order to establish an export price. Finally, those documents were in part from ND, a company which is not linked to the applicants, which made it impossible for the Commission to verify their veracity and, consequently, their probative value.
75As regards, lastly, the applicants’ complaint concerning the Commission’s infringement of Article 18(3) of the basic regulation, it should be noted that the objective of Article 18 of the basic regulation is to enable the Commission to continue the investigation even if the parties refuse to cooperate or do not cooperate sufficiently. The level of cooperation of the parties must be assessed on the basis of the concept of ‘necessary information’ used in that article, since, in order to be regarded as cooperating, the latter must provide the Commission with information enabling the Commission to establish the appropriate findings in an anti-dumping investigation. The assessment as to whether an item of information is ‘necessary’ must be carried out on a case-by-case basis (see, to that effect, judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraphs 53 and 55).
76On that basis, it has already been held that the degree of effort displayed by an interested party in submitting certain information does not necessarily reflect the substantive quality of the information submitted, and in any case is not the only determining factor. Thus, where the requested information is not ultimately provided, the Commission is entitled to resort to the facts available in respect of the requested information (see, in relation to Article 6.8 of the WTO Anti-Dumping Agreement, the report of the panel established under the WTO entitled ‘Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey’ and adopted on 1 October 2002, point 7.242) (judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 104).
77Finally, pursuant to settled case-law, Article 18(3) of the basic regulation provides that, where the information submitted by an interested party is not ideal in all respects, it should nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability. It is evident from the wording of that provision that the four conditions are to be applied cumulatively. Accordingly, if just one of them is not satisfied, that provision cannot be applied and the information in question cannot be taken into account (see judgment of 19 March 2015, City Cycle Industries v Council, T‑413/13, not published, EU:T:2015:164, paragraph 120 and the case-law cited).
78In that regard, it must be held that, for the reasons already stated in paragraphs 59 to 62 above, the Commission was entitled to make use of Article 18(1) of the basic regulation in order to determine the export price, in so far as the deficiencies in the data communicated by the applicants made it excessively difficult to establish a reasonably accurate finding.
79It follows from the foregoing that the Commission did not make a manifest error of assessment or infringe Article 18(1) and (3) and, consequently, Article 9(6) of the basic regulation or paragraph 3 of Annex II to the WTO Anti-Dumping Agreement when, in recitals 29 to 41 of the contested regulation, it found, in essence, that, irrespective of whether the applicants had acted to the best of their ability, the main difficulty encountered during the investigation was due to the absence of a complete and verifiable set of data on the export transactions, including and in particular as regards the goods exported, the volumes and the values, as a result of which the Commission found that it could not exercise any proper and independent control over those data and rejected them as a whole on the basis of the facts available, in accordance with the provisions of Article 18(1) of the basic regulation.
80Lastly, it must be held that mere mention of the infringement of Article 2(6a), (8), (9), (10) and (11), Article 3 and Article 6 of the basic regulation, apart from being brief, is sufficient in order to demonstrate the relevance of the allegation of an infringement of those provisions and, consequently, to establish that the contested regulation is unlawful in that regard.
81Consequently, the first and second parts of the second plea must be rejected.
–The third part of the second plea, alleging infringement of Articles 2 and 3, Article 6(6) and (8), Article 9(4) and Article 18(1) and (3) of the basic regulation and of paragraph 3 of Annex II to the WTO Anti-Dumping Agreement
82By the third part of the second plea, the applicants claim, in essence, that, in failing to use the data submitted by them in order to determine the normal value, even though those data were held to be reliable, the Commission infringed Article 18(1) and (3) of the basic regulation and paragraph 3 of Annex II to the WTO Anti-Dumping Agreement, as well as Articles 2 and 3, Article 6(6) and (8) and Article 9(4) of that regulation. They add that the Commission did not sufficiently explain why it had not used those data in order to establish normal value.
83In that regard, the applicants state that the Commission departed from its usual practice of resorting to the facts available only in circumstances where the data are not fully verifiable and reliable.
84They point out that that practice is consistent with WTO case-law.
85They assert that the Commission did not sufficiently explain why it had not calculated the normal value, even though it had reliable information in that regard, as is apparent from recitals 42 and 44 of the contested regulation.
86The applicants claim that it was possible for the Commission to use their normal value in order to compare it to export prices to the European Union, to their constructed export prices to the European Union or at least to the export prices charged by the sole sampled and cooperating producer or to those provided by the other exporting producers which had requested an individual examination in accordance with Article 17(3) of the basic regulation or by the other interested parties.
87They add that such an approach would have taken account of the fact that they had fully cooperated with the Commission throughout the investigation, which, moreover, was emphasised by the hearing officer and was not disputed by the Commission.
88The Commission disputes those arguments.
89In that regard and as a preliminary point, as regards the applicants’ argument referred to in paragraph 87 above, it should be noted that, in the initial report of 17 September 2019, in view of the efforts which the applicants had made, the hearing officer considered that the application of the status of ‘non-cooperating’ to the applicants, in so far as they had provided false or misleading information, was not ideal and that she was seeking clarification of the use of Article 18 of the basic regulation. The fact remains that, in the second and last hearing report of 7 February 2020, that hearing officer made no further comment on the Commission’s recourse to that article, so that no conclusion can be drawn from those two documents as regards the level of cooperation of the applicants.
90As regards the rules on which the applicants rely in order to claim the existence of an alleged practice on the part of the Commission, which consists of using the facts available only in circumstances in which the data are not entirely verifiable and reliable, it is sufficient to reject that argument on the basis of the case-law cited in paragraph 70 above.
91As regards the WTO Anti-Dumping Agreement and, more specifically, Annex II to that agreement, and the related case-law, which was the subject of a written question for an answer at the hearing, it must be noted that it is in the light of those provisions that Article 18 of the basic regulation must be interpreted as far as possible, since it constitutes the transposition into EU law of the content of those provisions (see, to that effect, judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 40).
92In that regard, it must be pointed out that, in paragraph 7.354 et seq. of the WTO panel report of 16 November 2007, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway (WT/DS337/R), on which the applicants rely, that panel, when the European Communities rejected an item of evidence relating to the establishment of normal value, emphasised that the investigating authority was required, pursuant to Article 6.8 of the WTO Anti-Dumping Agreement and paragraph 3 of Annex II to that agreement, to use the ‘verifiable’ information provided by the parties.
93In the case of United States – Anti-Dumping and Countervailing Measures on Steel Plate from India (WT/DS206/R), on which the applicants also rely, it is true that, in paragraph 7.60 et seq. of its report, the WTO panel considered, in essence, that the investigating authorities had to endeavour to make maximum use of the data communicated to them by the parties, given that one of the fundamental objectives of the WTO Anti-Dumping Agreement as a whole was to ensure that objective determinations were made, based to the extent possible on facts.
94The fact remains that, in paragraphs 7.62 and 7.64 of that report, the WTO panel stated that it was not possible to conclude that the investigating authority had to use information which, for example, was not verifiable or had not been submitted in good time, or that it had to use it, whatever the ensuing difficulties.
95Moreover, as the Commission pointed out at the hearing, without the applicants having successfully challenged the point, it must be observed that the cases which gave rise to those two WTO reports differ from the present case in that, in those cases, the main difficulty encountered by the investigators did not, as in the present case, relate to establishing the export price, owing to the failure to disclose any reliable data concerning exports, in particular to the types of goods exported and the price thereof, but to establishing the normal value.
96It follows from those two reports that although, as a matter of principle, the investigating authority must endeavour to use the information provided by the parties which is verifiable, it must do so as far as possible. That means that that authority may disregard information which, ultimately, is capable of giving results that do not enable a reasonably correct finding to be made.
97In the context of the present case, any determination of the normal value would have been superfluous, since no dumping margin could have been established in the absence of the possibility of establishing the export price relating to the applicants, as is apparent from paragraphs 56 to 81 above.
98That conclusion is not called into question by the applicants’ argument that it would have been possible to establish their normal value in order to compare it with the reconstructed export price for other producers. As the Commission pointed out at the hearing, the application of such a method, in the absence of any certainty as to the identity and quantity of the type of goods exported, as is apparent from paragraph 69 above, would inevitably have had the effect of associating values which did not correspond and, consequently, were asymmetrical, as a result of which, ultimately, the findings relating to the dumping margin would not have been reasonably correct.
99As regards the complaint alleging an inadequate statement of the reasons why the Commission failed to calculate normal value, it should be noted that the Court has already held that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the Courts to exercise their power of review. It is not, however, necessary for the reasoning to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, not published, EU:T:2012:531, paragraph 126 and the case-law cited). Moreover, the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to its observations submitted during the administrative procedure (judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 150). In particular, the statement of the reasons on which anti-dumping regulations are based is not required to specify the often very numerous and complex matters of fact and law dealt with in the regulations, provided that they fall within the general scheme of the body of measures of which they form part. It is sufficient for the reasoning of the institutions in the regulations to appear clearly and unequivocally (see, to that effect, judgment of 15 October 1998, Industrie des poudres sphériques v Council, T‑2/95, EU:T:1998:242, paragraph 357).
100In that regard, it should be noted that, contrary to the applicants’ assertions, the grounds stated by the Commission in the contested regulation do make it possible to understand the reasons why it takes the view that the data relating to the normal value do not constitute half the information necessary to establish a dumping margin.
101As the Commission stated clearly and unequivocally in recital 42 of the contested regulation, the determination of the normal value had no effect in the present case, since the information provided for the purpose of the determination of the export price, which is a fundamental element in the calculation of the dumping margin, was not reliable, since it was not verifiable.
102Furthermore, it must be stated that that statement of reasons enabled the applicants to understand the reasons why the Commission did not establish their normal value in the present case and to challenge the lawfulness of that choice, as is apparent from the arguments raised in particular in the context of the present plea. Such a statement of reasons also enables the Courts of the European Union to review the lawfulness of the contested regulation.
103Lastly, for the same reasons as those set out in paragraph 80 above, the alleged infringement of Articles 2 and 3, Article 6(6) and (8) and Article 9(4) of the basic regulation must be rejected.
104It follows from the foregoing that the third part of the second plea and, consequently, the second plea in its entirety, must be rejected.…
Operative part
On those grounds,THE GENERAL COURT (First Chamber)hereby:
1.Dismisses the action;
2.Orders Zhejiang Hangtong Machinery Manufacture Co. Ltd and Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd to pay the costs.
Delivered in open court in Luxembourg on 6 July 2022.
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