CELEX: 62013TJ0422
Dumping
Imports of certain polyethylene terephthalate (PET) originating in India, Taiwan and Thailand
Expiry review
Commission proposal to renew measures
Council decision to terminate the review without imposing measures
Action for annulment
Article 11(2) of Regulation (EC) No 1225/2009
Likelihood of recurrence of material injury
Article 21(1) of Regulation No 1225/2009
Interest of the European Union
Manifest errors of assessment
Obligation to state reasons
Action for damages

Legal framework
The decision at issue in the present case was adopted on the basis of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (
OJ 2009 L 343, p. 51
, corrigendum
OJ 2010 L 7, p. 22
, ‘the basic regulation’), before its amendment by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (
OJ 2014 L 18, p. 1
) and its repeal by 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
).
Article 11(2) of the basic regulation states:
‘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 [European] Commission, or upon request made by or on behalf of [EU] producers, and the measure shall remain in force pending the outcome of such 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 [EU] 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.
A notice of impending expiry shall be published in the
Official Journal of the European Union
at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the [Union] producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.’
Under Article 11(5) of the basic regulation, ‘the relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4’.
Article 9(4) of the basic regulation provided as follows:
‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [Union] interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission ...’
Pursuant to Article 15(1) of the basic regulation, ‘any consultations provided for in this Regulation shall take place within an Advisory Committee, which shall consist of representatives of each Member State, with a representative of the Commission as chairman’.
Article 20(4) of the basic regulation states:
‘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 a definitive decision or the submission by the Commission of any proposal for final action pursuant to Article 9. Where the Commission is not in a position to disclose certain facts or considerations at that time, these shall be disclosed as soon as possible thereafter. Disclosure shall not prejudice any subsequent decision which may be taken by the Commission or the Council but where such decision is based on any different facts and considerations, these shall be disclosed as soon as possible.’
Article 20(5) of the basic regulation provided that ‘representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter’.
Article 21(1) of the basic regulation provided:
‘A determination as to whether the [EU] interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers, and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the [EU] interest to apply such measures.’
Background to the dispute
The present case concerns a review proceeding initiated under Article 11(2) of the basic regulation on account of the expiry of the anti-dumping duties imposed by the Council of the European Union since 2000 on imports of certain polyethylene terephthalate (PET), notably from India, Taiwan and Thailand (‘the anti-dumping duties at issue’).
Since 2000, the Council had also imposed anti-dumping duties on imports of certain PET from Indonesia and Malaysia, as well as countervailing duties on imports of certain PET from, inter alia, India (‘the countervailing duties at issue’).
On 25 November 2011, following the publication in the
Official Journal of the European Union
of two notices of expiry concerning all the anti-dumping duties mentioned in paragraphs 9 and 10 above (
OJ 2011 C 122, p. 10
) and the countervailing duties at issue (
OJ 2011 C 116, p. 10
), the Commission received two requests from the European Union’s PET producer industry for the initiation of an expiry review in respect of the anti-dumping and countervailing duties on the basis of, respectively, Article 11(2) of the basic regulation and Article 18 of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (
OJ 2009 L 188, p. 93
).
Having established, after consulting the Advisory Committee referred to in Article 15 of the basic regulation, that there was sufficient evidence to initiate expiry reviews, the Commission announced, on 24 February 2012, the initiation of such reviews (
OJ 2012 C 55, p. 4
, and
OJ 2012 C 55, p. 14
).
Following its investigations, the Commission proposed not to renew the anti-dumping duties concerning imports of PET from Indonesia and Malaysia. By contrast, it did propose to renew, for a period of five years, the anti-dumping and countervailing duties at issue. As regards, more specifically, the anti-dumping duties at issue, the Commission considered that, in the event of their expiry, there was a likelihood of continuation of dumping and recurrence of injury to EU industry and that the extension of those duties was not against the Union interest.
On 3 April 2013, the Commission referred the proposals to the Advisory Committee. On that date, 13 representatives of the Member States on that committee opposed the proposal to extend the anti-dumping duties at issue. That proposal was therefore supported by a simple majority of the representatives of the Member States.
On that basis, on 23 April 2013, the Commission submitted to the Council a draft anti-dumping Regulation (‘the Commission proposal’) and a draft anti-subsidy Regulation extending the anti-dumping and countervailing duties in question for a further five-year period.
On 21 May 2013, in accordance with the Commission proposal, the Council renewed the countervailing duties at issue by Implementing Regulation (EU) No 461/2013 imposing a definitive countervailing duty on imports of certain PET originating in India following an expiry review pursuant to Article 18 of Regulation No 597/2009 (
OJ 2013 L 137, p. 1
). The Council found that, despite apparent positive trends and significant restructuring efforts, the situation of the EU industry ‘[was] still in a fragile state’ (recital 186). The Council also observed that, given the likely substantial increase of subsidised imports from India, which were likely to undercut the EU industry’s sales prices, it was very likely that the situation would deteriorate and material injury would recur, should the measures be allowed to lapse (recital 211). Lastly, the Council considered that the countervailing duties at issue did not have a ‘disproportionate effect’ on PET users in the European Union (recital 264). On that basis, the Council found that ‘it c[ould] not be clearly concluded that it [wa]s not in the Union interest to maintain the countervailing [duties at issue]’ (recital 265).
In contrast, on the same date, the Council adopted Implementing Decision 2013/226/EU of 21 May 2013 rejecting the proposal for a Council implementing regulation imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia, in so far as the proposal would impose a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand (
OJ 2013 L 136, p. 12
, ‘the contested decision’).
In the contested decision, the Council decided not to renew the anti-dumping duties at issue, in contrast to what the Commission had proposed (Article 1). It found that ‘the case’ that allowing the anti-dumping measures at issue to lapse would be likely to lead to recurrence of injury ‘ha[d] not been made’ (recital 5), and indeed that that recurrence was ‘unlikely’ (recital 17). The Council also held that it was clearly not in the Union interest to extend the measures as the costs to importers, users and consumers were disproportionate to the benefits for EU industry (recitals 18 to 23). On that basis, the Council terminated the review proceeding concerning the anti-dumping duties at issue without extending those duties (Article 2).
As regards anti-dumping duties in respect of imports of PET from Indonesia and Malaysia (see paragraph 10 above), in the contested decision the Council nevertheless followed the Commission proposal not to renew those duties. In that regard, it held, like the Commission, that there was no likelihood that Indonesian or Malaysian exporting producers would resume exporting injurious quantities at dumped prices to the Union market in the short or medium term should the measures be repealed (recital 4). On that basis, the Council also terminated the review proceeding concerning the anti-dumping duties applicable to imports from those countries (Article 2).
Procedure and forms of order sought
The Committee of Polyethylene Terephthalate (PET) Manufacturers in Europe (CPME) is an association of EU producers of PET. Cepsa Química, SA, Equipolymers Srl, Indorama Ventures Poland sp. z o.o., Lotte Chemical UK Ltd, M & G Polimeri Italia SpA, Novapet, SA, Ottana Polimeri Srl, UAB Indorama Polymers Europe, UAB Neo Group and UAB Orion Global pet are EU producers of PET.
By document lodged at the Court Registry on 14 August 2013, the applicants, namely all the entities referred to in paragraph 20 above, in essence, applied, under Article 263 TFEU, for the partial annulment of the contested decision and, under Article 268 TFEU, for compensation for the damage suffered following the unlawful adoption of that decision.
By document lodged at the Court Registry on 17 October 2013, the Commission applied for leave to intervene in support of the form of order sought by the applicants concerning the partial annulment of the contested decision. By order of 27 November 2013, the President of the First Chamber of the General Court allowed that intervention.
By document lodged at the Court Registry on 20 December 2013, some EU users of PET, namely Caiba, SA, Coca-Cola Enterprises Belgium (CCEB), Danone, Nestlé Waters Management & Technology, Pepsico International Ltd and Refresco Gerber BV, as well as the association representing that industry, namely the European Federation of Bottled Waters (EFBW) (taken together, ‘the private interveners’), applied for leave to intervene in support of the form of order sought by the Council.
On 20 February 2014, the applicants submitted objections to that application to intervene. Furthermore, pursuant to Article 116(2) of the Rules of Procedure of the General Court of 2 May 1991, the applicants requested that, should the private interveners be granted leave to intervene, all of the arguments and annexes contained in the written pleadings relating to their action for damages be omitted from the documents notified to the private interveners, on account of their confidential nature. For the purpose of that notification, the applicants produced a non-confidential version of the written pleadings and annexes at issue.
By order of 8 July 2014, the First Chamber of the General Court granted the private interveners leave to intervene only in so far as they supported the form of order sought by the Council concerning the dismissal of the applicants’ action for annulment and not as regards the form of order sought concerning the action for damages. The notification of the procedural documents to the private interveners was limited to the non-confidential version produced by the applicants. The private interveners did not object to the application for confidential treatment.
On a proposal from the Judge-Rapporteur, the Court (First Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure, as provided for in Article 89 of its Rules of Procedure, put written questions to the parties. The parties responded within the time allowed. In particular, the Court asked the parties to express their views on whether the contested decision satisfied the Council’s obligations under Article 296 TFEU.
The parties presented oral argument and replied to the questions put by the Court at the hearing on 28 June 2016.
During the hearing, the applicants stated that they wished to update their claim for damages submitted on the basis of Article 268 TFEU. As a result of that request, the Court invited the applicants to lodge the updated claim. The Council submitted comments on that updated claim within the time limit.
The oral part of the procedure was closed on 18 November 2016.
The applicants claim that the Court should:
—
declare the application admissible and well founded;
—
annul the contested decision, inasmuch as it did not renew the anti-dumping duties at issue;
—
order the Council to compensate them for the damage suffered;
—
order the Council to pay the costs;
—
order the private interveners to pay the costs incurred as a result of their intervention.
The Council contends that the Court should:
—
dismiss the application for annulment as unfounded;
—
dismiss the action for damages as unfounded;
—
order the applicants to pay the costs.
The Commission contends that the Court should :
—
declare the application for annulment admissible and well founded;
—
order the Council to pay the costs of the proceedings.
The private interveners contend that the Court should:
—
dismiss the application for annulment;
—
order the applicants to pay the costs.
Law
1.
Application for annulment
The applicants rely on three pleas in law in support of their application for annulment. The first and third pleas allege that the Council did not disclose to them the facts and considerations which led to the adoption of the contested decision or give them any time to comment on them. In their view, such an omission constitutes a breach of Article 20(4) and (5) of the basic regulation and of the applicants’ rights of defence (first plea) and of the principles of diligence and of sound administration (third plea). As part of the second plea in law, the applicants complain of a manifest error of assessment and a breach of Article 11(2) and Article 21(1) of the basic regulation.
The Court will first consider the second plea raised by the applicants.
The second plea in law, alleging manifest error of assessment and breach of Article 11(2) and Article 21(1) of the basic regulation
The applicants, supported by the Commission, submit that the Council’s conclusions in recitals 17 and 23 of the contested decision that, on the one hand, the expiry of the measures was unlikely to lead to the recurrence of material injury and, on the other, that the extension of anti-dumping duties at issue was clearly not in the Union interest constitute a manifest error of assessment and infringe Article 11(2) and Article 21(1), respectively, of the basic regulation.
Those conclusions are based on considerations which reflect a partial and distorted selection of the facts established by the Commission’s investigation, as well as on other unsubstantiated or even clearly erroneous assertions. Some statements are, moreover, unsubstantiated and inconsistent. The contested decision led to findings which were contrary to those of the Commission and to the Council’s own conclusions in Implementing Regulation No 461/2013.
The Council, supported by the private interveners, rejects the arguments of the applicants and of the Commission, arguing that, on the basis of its wide discretion, it could give more weight to one element over another, and even consider that one element was not relevant. Since the prospective analysis in the context of a review is of a complex nature, both the Commission and the Council were entitled to reach different conclusions without one of them committing a manifest error of assessment. As regards the alleged contradiction between the contested decision and Implementing Regulation No 461/2013, the Council observes that these were different procedures which could lead to a different assessment of the facts. Finally, its conclusions, in recitals 17 and 23 of the contested decision, are not vitiated by a manifest error.
Before considering in more detail the arguments of the parties on the breaches of Article 11(2) and Article 21(1) of the basic regulation, it is necessary to determine, in response to certain arguments of the parties, the nature of the review which the Council was called upon to undertake on the basis of Article 11(2) of the basic regulation and the scope of the Court’s review of the contested decision.
The analysis to be carried out by the Council on the basis of Article 11(2) of the basic regulation and the scope of the Court’s review of the contested decision
The private interveners point out that, in accordance with the first subparagraph of Article 11(2) of the basic regulation, the measures expire in principle at the end of the period laid down, ‘unless it is determined’ that their abolition would lead to the continuation or recurrence of dumping and injury. Thus, in their view, in order for the measures to expire, it is not necessary to demonstrate positively that the continuation or recurrence of injurious dumping is unlikely; rather, it is sufficient to state that the contrary has not been demonstrated, which is less difficult.
The private interveners acknowledge that, in the contested decision, the Council sometimes presents its conclusions ‘more strongly’, stating that it was ‘unlikely’ that the expiry of the measures would lead to the recurrence of material injury. However, in their view, those statements do not alter the nature of the examination to be carried out. In those circumstances, they ask the General Court to take account of the nature of that examination when examining the applicants’ complaints concerning the Council’s application of Article 11(2) of the basic regulation.
The private interveners also note that the Council carried out an appropriate examination, in the contested decision, when it stated, first, that ‘the case ha[d] not been made that the removal of anti-dumping measures against India, Taiwan and Thailand would be likely to lead to continuation or resumption of injurious dumping’ (recital 5), secondly, that ‘it has not been demonstrated that injurious dumping by imports from [India, Taiwan and Thailand] would be likely to recur once the measures lapsed’ (recital 12) and, thirdly, that ‘no persuasive evidence ha[d] been provided on a number of factors which seem[ed] relevant to any assessment of whether removal of duties would lead to a resumption of injurious dumping’ (recital 15).
In reply to a written question from the Court, the Council clarified that, when it adopted a decision on the basis of Article 9(4) of the basic regulation, following a review proceeding under Article 11(2) of that regulation, it had to analyse ‘whether it [was] shown’ that, on the basis of facts established in the past, it was likely that the injurious dumping would continue or recur in future. In the present case, the Council states that it considered that the facts, as presented by the Commission, did not demonstrate the likelihood of continuation or recurrence of injurious dumping.
At the hearing, the Council added that it was required only to reject or accept the Commission’s proposal and to justify its decision. It also acknowledged that, in the contested decision, it had gone beyond the analysis required by Article 11(2) of the basic regulation, sometimes concluding positively that there was no likelihood of recurrence of injury. The Council, however, observed that the facts which it noted in the contested decision in support of that conclusion necessarily established that the likelihood of injury had not been demonstrated by the Commission.
In reply to a written question from the Court, the Commission stated that, in principle, the EU institutions terminated the expiry review proceeding without maintaining the existing measures if they considered that there was insufficient evidence to establish the likelihood of continuation or recurrence of dumping and injury. However, the Commission noted that Article 11(2) of the basic regulation did not prevent the EU institutions from applying, as in the present case, a more stringent method, by relying on the express finding that, from a material point of view, the repeal of the existing measures was not likely to lead to the recurrence of dumping and injury. In its view, if that were the case, the Courts of the European Union would be entitled to ascertain whether the facts supported that conclusion. The Commission referred in that regard to the judgment of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel (
C‑186/14 P and C‑193/14 P
,
EU:C:2016:209
, paragraphs
and
).
When questioned on that point at the hearing, the applicants agreed with the Commission’s arguments.
In that regard, it must be observed that, in the contested decision, the Council not only rejected, in part, the Commission’s proposal (Article 1) but also terminated the review proceeding initiated by the Commission (Article 2). In those circumstances, the Council was required to comply with the conditions imposed by the basic regulation for terminating that review proceeding.
According to the first subparagraph of Article 11(2) of the basic regulation an anti-dumping measure is to 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’.
According to settled case-law, the mere possibility that injury might continue or recur is insufficient to justify retaining a measure; retention is dependent on the likelihood of continuation or recurrence of injury being established (judgment of 20 June 2001, Euroalliages v Commission,
T‑188/99
,
EU:T:2001:166
, paragraph
). Moreover, that likelihood must have been established by the competent authorities on the basis of an inquiry (judgment of 20 June 2001, Euroalliages v Commission,
T‑188/99
,
EU:T:2001:166
, paragraph
).
It follows that, by virtue of the first subparagraph of Article 11(2) of the basic regulation, the measures are to expire unless it has been shown that such expiry would lead to the continuation or recurrence of dumping and injury. Pursuant to that provision, in order not to maintain a definitive anti-dumping measure, the Union institutions are not therefore required to demonstrate that the continuation or recurrence of dumping and injury is unlikely, but may limit themselves to a finding that such a probability has not been demonstrated.
The wording of the first subparagraph of Article 11(2) of the basic regulation differs from that of Article 6(1) of that regulation, which was examined in the judgment of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel (
C‑186/14 P and C‑193/14 P
,
EU:C:2016:209
), referred to by the Commission. In that case, the Council had made use of the exceptional possibility provided for in Article 6(1) of the basic regulation to take into consideration not only the data relating to the investigation period but also, in certain circumstances, the data subsequent to that investigation period. In those circumstances, the Court held that the use of the latter could not escape the supervision of the EU judicature. The first subparagraph of Article 11(2) of the basic regulation provides for only one type of examination in order to determine the need for retaining the measures, the purpose of which is to establish whether the likelihood of continuation or recurrence of dumping and injury has been demonstrated.
In the present case, the Council held in the contested decision both that ‘the case ha[d] not been made’ that the expiry of the anti-dumping measures at issue would lead to the recurrence of significant injury (recital 5) and that such recurrence was ‘unlikely’ (recital 17). The Council based those two findings on the same grounds set out in recitals 8 to 17 of the contested decision.
As noted by the Council, it is necessary to examine, in accordance with Article 11(2) of the basic regulation, whether the considerations relied on in the contested decision make it possible to conclude, without making a manifest error of assessment, that it had not been demonstrated in the present case that the expiry of the anti-dumping duties would result in the recurrence of injury.
In that regard, it must be noted that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (judgments of 27 September 2007, Ikea Wholesale,
C‑351/04
,
EU:C:2007:547
, paragraph
, and of 11 February 2010, Hoesch Metals and Alloys,
C‑373/08
,
EU:C:2010:68
, paragraph
).
In that respect it must be noted that the examination of the likelihood of a continuation or recurrence of dumping and of injury involves the assessment of complex economic matters and that 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 have been manifest errors in the assessment of those facts or a misuse of powers (see, to that effect, judgments of 20 June 2001, Euroalliages v Commission,
T‑188/99
,
EU:T:2001:166
, paragraphs
and
, and of 8 May 2012, Dow Chemical v Council,
T‑158/10
,
EU:T:2012:218
, paragraph
).
The Court of Justice has also held that the General Court’s review of the evidence on which the EU institutions based their findings did not constitute a new assessment of the facts replacing that of the institutions. That review does not encroach on the broad discretion of the institutions in the field of commercial policy, but merely establishes whether that evidence is able to support the conclusions reached by the institutions (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
).
Finally, the Court stated that it was for the EU judicature not only to establish whether the evidence put forward is factually accurate, reliable and consistent but also to determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it was capable of substantiating the conclusions drawn from it (see, to that effect, judgment of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel,
C‑186/14 P and C‑193/14 P
,
EU:C:2016:209
, paragraph
).
In the light of those principles, it is appropriate to examine the Council’s analysis in the contested decision of the application of Article 11(2) and Article 21(1) of the basic regulation.
The review of the likelihood of recurrence of injury within the meaning of Article 11(2) of the basic regulation
Retention of a measure as part of the review procedure on account of its expiry depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned (judgment of 20 June 2001, Euroalliages v Commission,
T‑188/99
,
EU:T:2001:166
, paragraph
).
In the present case, the Council first found, in recital 7 of the contested decision, that ‘the EU industry [was] not currently suffering material injury’.
As regards the recurrence of material injury in the event of the expiry of the anti-dumping measures, the Council found, in recitals 5 and 17 of the contested decision, that it had not been demonstrated, and indeed that it was unlikely.
The Council essentially based its conclusion on the following seven findings.
First, the Council noted the existence of positive economic indicators (recitals 8 and 9), inter alia price increases (recital 8) — in particular, import prices (recitals 9 in fine, 10 and 12). According to the Council, ‘the trends show[ed] that the market developments [could] not be regarded as temporary’ (recital 8 in fine).
Secondly, the Council stated that imports from the countries concerned had not been significant in recent years (recital 10) and that market shares of imports from Taiwan and Thailand were ‘close to zero’, which implied that ‘the reliability of claims about dumping [were] likely to be subject to a large margin of error’ (recital 11).
Thirdly, the Council observed that, according to the ‘data presented’, the measures had been more beneficial, in terms of market shares, to third-country producers than to the Union industry (recital 10 in fine).
Fourthly, the Council noted that no price undercutting of imports from India, Taiwan and Thailand was found over the period considered (recital 12).
Fifthly, the Council believed that although there could be an increase in imports after the lapse of the measures, ‘this increase would not be significant’ (recital 14 in fine). The Council was ‘not persuaded’ that ‘some overcapacity’ in India, Taiwan and Thailand would be directed to the European Union (recital 13). Demand is growing in most major worldwide markets (recitals 6 to 13). Prices in the European Union tend to align (downward) with those in other countries (recital 14). Some information or evidence which appeared relevant to that analysis was not provided (recitals 14 and 15).
Sixthly, the Council held that the retention of the countervailing duties at issue and of the anti-dumping measures against China and other countries would continue to provide ‘some protection for the Union Industry’.
Seventhly, according to the Council, ‘the past pattern of trade in th[at] market also suggest[ed] that any rise in exports from India, Thailand and Taiwan could partly or wholly displace third country imports rather than EU production’ (recital 16 in fine).
As indicated in paragraph 53 above, it is necessary to examine, on the basis of the arguments of the parties, whether those findings enabled the Council to consider, without making a manifest error of assessment, that it had not been shown that the expiry of the anti-dumping duties at issue would promote the recurrence of injury.
Since a lack or inadequacy of a statement of reasons is an infringement of an essential procedural requirement within the meaning of Article 263 TFEU which may be raised by the Court of its own motion, the parties having been heard (see, to that effect, judgment of 2 December 2009, Commission v Ireland and Others,
C‑89/08 P
,
EU:C:2009:742
, paragraphs
and
), it is also necessary to examine whether the Council fulfilled its obligations under Article 296 TFEU. In that regard, it should be noted that, at the Court’s request in the context of measures of organisation of procedure which had been ordered, the parties expressed their views on whether the Council had complied with its obligation to state reasons for the contested decision (see paragraph 26 above).
– The existence of positive economic indicators, in particular, the increase in PET prices
It is apparent from recital 8 of the contested decision that ‘the Council has ... examined whether the recurrence of material injury would be likely if the measures were allowed to lapse’ and that ‘its assessment was that this would not be likely to happen’. According to the Council, ‘productivity ha[d] increased in the period covered by the Expiry Review’. Moreover, ‘EU industry consistently [held] over 70% of the EU market and prices, profitability, return on investment and cash flow figures [were] significantly improving’ and the ‘trends show[ed] that the market developments [could] not be regarded as temporary’.
With particular reference to import prices, the Council added that they ‘increased significantly during the last number of years and thus price pressure [was] diminishing’ (recital 9). The Council pointed out that the prices of imports from India, Taiwan and Thailand were ‘in line with those of the EU sales and the other imports’ (recital 10). In addition, the Council stated that ‘where there [were] imports, import prices [had] been rising strongly’ and that ‘Indian prices increased 29%, Taiwan prices increased 27% and Thailand prices increased 32% over the period considered’ (recital 12).
The applicants, supported by the Commission, argue that the Council selectively referred to the positive developments in certain economic indicators of the EU industry but ignored the negative developments and the limited duration of the positive developments which it had itself established in Implementing Regulation No 461/2013. That contradiction reveals, according to the Commission, the existence of a manifest error on the part of the Council, which has not provided a clear and unequivocal explanation in respect of that essential point.
As regards the statements in recitals 9, 10 and 12 of the contested decision concerning the increase in import prices during the Review Investigation Period (RIP), according to the applicants, they reflect only unexpected and temporary global market developments, on account of the surge in cotton prices, as acknowledged by the Council in Implementing Regulation No 461/2013. In any event, the relevant question is how prices would be likely to develop in the event of the expiry of the measures. The contested decision remains silent on that point and disregards the Commission’s assessment of the matter.
The Council, supported by the private interveners, argues that it accepted the facts as submitted to it by the Commission and subsequently assessed them all. According to the Council, assessing the facts does not amount to establishing them. It also recalls that an assessment is necessarily discretionary, and that this justifies the institutions’ wide discretion.
As regards, first, the positive market trends, noted in recital 8 of the contested decision, it must be held that, in recital 186 of its proposal, the Commission did state that ‘most of the relevant micro-economic indicators showed signs of improvements’. Thus, ‘the profitability, return on investment and cash flow rose significantly, in particular in 2010 and in the RIP’, namely between 1 and 31 December 2011.
However, the Commission also noted, in recital 186 of its proposal, that investments ‘plummeted in 2009 and ha[d] not recovered since’. Furthermore, according to recital 185 of the Commission’s proposal, ‘the analysis of the macro-economic data showed that the Union industry decreased its production and sales volumes during the period considered’, namely between 1 January 2008 and 31 December 2011. Furthermore, ‘the Union industry’s market share ha[d] not fully recovered since the initial drop in 2009 and it showed an overall decrease of 3 percentage points over the period considered (to 77% in RIP)’. Finally, ‘the decline in employment and capacity [was] a result of the on-going restructuring and [was] to be seen in the context of increasing capacity utilisation and productivity’.
Admittedly, the Council enjoyed a wide discretion in assessing the economic data submitted by the Commission. In the context of that discretion, it could, for example, have challenged the relevance of certain factors taken into account by the Commission or balanced the positive and negative interests differently from the manner in which the Commission did so in its proposal. However, in the contested decision, the Council did not mention the negative economic indicators identified by the Commission or, a fortiori, challenge their relevance. However, the volume of investment, production and sales in the EU industry and the tendency to lose market share were relevant factors in assessing market trends in the context of the prospective analysis which had to be carried out by the Council. Moreover, the Council took those elements into account in Implementing Regulation No 461/2013 imposing a definitive countervailing duty on imports of certain PET originating in India.
In those circumstances the applicants correctly submit that the Council did not take account in the contested decision of all the relevant data in its analysis and, therefore, that it made a manifest error of assessment.
As regards, secondly, the non-temporary nature of the positive development of the market, it should be recalled that, in recital 187 of its proposal, the Commission stated that ‘these improvements [were] relatively recent and to some extent based on unforeseen and temporary market developments at the break of 2010/2011 [on account of the surge in cotton prices]’. According to the Commission, ‘[t]his appear[ed] to be supported by the information available on the developments of the margin of the Union industry in 2012 ... that show[ed] a decline as compared to RIP’.
In that regard, the Council merely asserted at the end of recital 8 of the contested decision that ‘the trends show[ed] that the market developments [could] not be regarded as temporary’.
No adequate reasons are given for that statement.
In the defence, the Council observes that the only positive temporary indicator alleged by the applicants was the price. The private interveners further state that the key indicators (sales profitability, developments in the return on the investment) showed positive developments prior to the surge in cotton prices.
However, those findings do not appear in the contested decision. Neither the Council nor the private interveners can make up for the lack of a statement of reasons in the contested decision by providing explanations before the Court (see, to that effect, judgment of 15 June 2005, Corsica Ferries France v Commission,
T‑349/03
,
EU:T:2005:221
, paragraph
and the case-law cited).
As regards, thirdly, the increase in prices, the Commission stated in its proposal that:
‘(155)
As a preliminary point to the analysis it should be explained that certain global economic events in late 2010 and early 2011 had an impact on the situation on the Union market, in particular on the prices and sales volumes of the like product. In this period the cotton supply fell resulting in an increased demand for polyester fibre on the Asian market. PET and polyester fibre are largely dependent upstream on the same raw material, i.e. purified terephthalic acid (PTA). The increased demand for polyester fibre resulted in insufficient supply of PTA, pushing the prices of PET up. Since the producers of PET in the Middle East also depend on PTA from Asia, this caused sudden fall in imports of PET in the Union. At the same time, the main PTA suppliers in the Union declared a “force majeure” resulting in additional restrictions of the domestic PET production.
…
(181)
In this respect it is to be noted that the Union industry was able to benefit from the PET price increase at the end of 2011 and beginning of 2012 as it had fixed the PTA price before the described market events occurred. Based on the statistical sources concerning the post-RIP development, submitted by the parties, the profit margins of PET producers went substantially down in 2012. This confirms that the profitability in 2011 (RIP) was indeed largely influenced by unexpected and temporary global economic events (recital (153)) that are unlikely to recur and cannot be considered permanent and representative of the situation of the Union industry.’
In recitals 8, 9, 10 and 12 of the contested decision, the Council refers to the increase in PET prices for both Union producers and importers of that product from India, Taiwan and Thailand, without mentioning the surge in cotton prices, nor, a fortiori, disputing the relevance of that factor. That factor was, however, mentioned and taken into account by the Council in Regulation No 461/2013, which confirms its relevance. Thus, the Council again failed to examine, in the contested decision, all relevant data as part of its prospective analysis. In so doing, it made a manifest error of assessment.
In the defence, the Council explains that it was clear from the Commission’s investigation that the increase in the price of PET was not necessarily temporary. According to the data provided by the Commission, that increase started before the surge in the price of cotton, which began only at the end of 2010. The Council further states in the reply that the Commission’s finding, in its proposal, that the profitability of EU industry fell after the RIP, did not provide any information as to the extent of the decrease, nor did it make it possible to know whether that decrease reversed the price increase which the Council had identified prior to the surge in cotton prices.
It must be held that those explanations do not appear in the contested decision and cannot therefore be taken into account in the context of an analysis of its merits.
It follows from the foregoing that the Council did make manifest errors of assessment and did not give adequate reasons in the contested decision for relying on certain positive economic indicators, in particular on price increases, while not mentioning certain negative factors relevant to the analysis.
– The non-significant volume of imports from India, Taiwan and Thailand during the RIP
The Council stated, in recital 10 of the contested decision, that ‘imports from the countries concerned [were] not significant in terms of their share of the EU market (still below 4% in RIP) and in relation to imports from other countries and EU producers sales’. The Council further stated, in recital 11 of the contested decision, that ‘market shares of both Taiwan and Thailand [were] close to zero’ and that ‘given that the volumes [were] so small, the reliability of claims about dumping [were] likely to be subject to a large margin of error’.
With regard to recital 10 of the contested decision, the applicants submit that the Council disregards in its analysis the large increase in imports from India, Taiwan and Thailand, which shows that it was selective in respect of the facts, to the point of presenting a distorted image and thus leading to unjustified conclusions.
The Council replies in the defence that it had the right to weigh and assess the facts in the context of its taking into account of the volume of imports in recital 10 of the contested decision.
In that regard, it should be noted that the Commission considered in its proposal not only the volume of imports during the period considered but also the trend (upward or downward) of those imports during that period (Commission proposal, recitals 50, 92 and 114), which is a relevant indicator in the context of the prospective analysis to be carried out in the present case. In those circumstances that factor should also have been examined by the Council when it referred to the volume of imports in recital 10 of the contested decision.
With regard to recital 11 of the contested decision, the applicants submit that the Council’s statement is an attempt, without any supporting findings of fact or argument, to call into question the Commission’s analysis that there was a likelihood of continuation of injurious dumping for Thailand and Taiwan. Moreover, the statement in that recital is irrelevant inasmuch as it does not take account of likely price developments after the RIP in the event of the repeal of the measures, which is the relevant question.
The Council states in the defence that it first found in its analysis that the volumes of imports from Thailand and Taiwan were reduced, which did not make it possible to reveal clear trends. It then found that the dumping calculation was not based on an examination of the verified normal value and of the export prices of the producers in those countries, but on the allegations of the EU industry in the context of the complaint. The combination of those two factors led it to doubt the reliability of the allegations concerning a risk of injurious dumping in the future. Finally, the Commission’s statements, in recitals 105 and 191 of its proposal, that there was no indication that dumping would be reduced or eliminated in the future constitute an assessment and not an established fact.
The private interveners further argue that the statement in recital 11 of the contested decision, that ‘the reliability of claims about dumping are likely to be subject to a large margin of error’, is also based on two findings in the Commission’s proposal, namely, on the one hand, an increase in the prices of imports from India, Taiwan and Thailand and, on the other, the fact that those prices did not undercut EU prices.
In that regard, it should be noted that both the Council and the private interveners provide explanations before the Court which are not set out in the contested decision. In recital 11 of that decision, the Council merely stated that the volumes of imports from Thailand and Taiwan were so small that ‘the reliability of claims about dumping are likely to be subject to a large margin of error’.
However, in the context of an expiry review proceeding, it is not a matter of investigating ‘claims about dumping’ but of verifying whether the expiry of the measures is likely to encourage the continuation or recurrence of dumping. The Council’s finding was therefore not relevant to the analysis.
If recital 11 of the contested decision were to be understood as intended to call into question the Commission’s conclusion in its proposal that there would be a continuation of dumping in Thailand and Taiwan in the event of the expiry of the anti-dumping measures in question, it must be held that the Council’s assertion is neither conclusive nor supported by evidence. The Council did not call into question in the contested decision either the Commission’s calculation of the dumping margin or its conclusion that it was likely that, if the measures expired, dumping would continue.
It follows that the Council’s conclusions drawn from the insignificant volume of imports from India, Taiwan and Thailand during the RIP are vitiated by manifest errors of assessment.
– The actual beneficiaries of measures in terms of market shares
The Council states in recital 10 in fine of the contested decision that ‘according to the data presented, in terms of market shares the measures have been more beneficial to third country producers than the Union industry’.
In the absence of any indication on the part of the Council of the data to which it refers, the Court is unable to verify the validity of such an assertion and the contested decision is vitiated by a failure to state reasons on that point (see, to that effect, judgment of 6 September 2006, Portugal v Commission,
C‑88/03
,
EU:C:2006:511
, paragraph
and the case-law cited).
– The lack of price undercutting during the period under review
The Council found, in recital 12 of the contested decision, that ‘no price undercutting [had been] found’ during the period examined in respect of imports from India, Taiwan and Thailand.
In that regard, the Commission rightly observes that the absence of undercutting was found in the past, without the contested decision giving any information as to the future development of the situation once the anti-dumping measures had been repealed. The Council’s argument, in response to the Commission’s statement in intervention, that the Indian importers had increased their prices in the Union does not call that finding into question.
The Council’s finding in recital 12 of the contested decision concerning the absence of undercutting therefore does not constitute a decisive factor capable of establishing, of itself, that the likelihood of recurrence of the damage had not been demonstrated.
– The non-significant volume of imports from India, Taiwan and Thailand in the event of repeal of the measures
Recitals 13 to 15 of the contested decision state the following:
‘(13)
Although there is some overcapacity in [India, Taiwan and Thailand], the Council is not persuaded that those unused capacities would be directed to the EU. Demand is growing in most of the major markets.
(14)
The price level in the EU compared with other countries is higher than in other major markets because these long-lasting measures are in force. Without the measures prices would tend to normalise vis-à-vis other countries. Trade defence measures in third countries are unlikely to deflect significant trade towards the EU because these countries are not the world’s main consumers of PET. No information has been provided on the existence or otherwise of trade defence measures in other major PET markets such as the US and Japan. Therefore the Council believes that although there could be an increase of imports after the lapse of the measures, this increase would not be significant.
(15)
The Council’s assessment is that no persuasive evidence has been provided on a number of factors which seem relevant to any assessment of whether removal of duties would lead to a resumption of injurious dumping. These include:
(a)
Demand trends in third countries: in the case of Taiwan, for example, third country exports account for about 60% of production capacity. This suggests that future demand trends in these countries are relevant to the assessment;
(b)
Transport costs and other factors affecting profitability: if third country export markets are closer to the exporter than the EU market — East Asia is a significant market — this will affect transport costs and hence profitability of export sales and hence the relative attractiveness of the EU market.’
The applicants, supported by the Commission, submit that the Council arbitrarily disregarded the Commission’s careful examination, which concluded that imports were likely to increase considerably in the event of the measures being abolished. Even if the infringement of Article 296 TFEU is not formally relied upon, the unsubstantiated and sometimes contradictory nature of some of the Council’s assertions in the contested decision is also criticised.
The Council, supported by the private interveners, rejects those arguments.
It should be noted that the Council concluded, in essence, in the contested decision that ‘although there could be an increase of imports after the lapse of the measures, this increase would not be significant’ (recital 14 in fine) because it ‘[was] not convinced that those unused capacities [in India, Taiwan and Thailand] would be directed to the EU’ (recital 13).
The Council’s conclusion is based on the five findings in paragraphs 112, 121, 122, 127 and 130 below.
First, according to the Council, there was ‘some’ overcapacity in India, Taiwan and Thailand (recital 13 of the contested decision).
The applicants and the Commission point out that that statement contradicts the analysis of the Commission in its proposal and the Council’s own findings in Implementing Regulation No 461/2013 that foreseeable overcapacity in those three countries, in particular India, was significant.
The Council submits in the defence that the Commission’s analysis was based on the information contained in the complaint and that it had not checked them on the spot in Taiwan and Thailand. It took that into account when determining the importance to be attached to that indicator of injury in the analysis. The Council submits that it was able to assess differently future capacities and demand in Taiwan and Thailand in the light of the arguments presented by other interested parties during the investigation, including users of PET in the Union, without such an analysis being vitiated by a manifest error of assessment.
In reply to the Council’s arguments, the applicants and the Commission dispute the Council’s calling into question of certain facts established by the Commission during its investigation on the ground that they emerged from the complaint and that they were not verified on the spot in Taiwan and Thailand.
In that regard, it should be noted that the information relied upon by the Council before the Court does not appear in the contested decision. Indeed, the Council’s assertion in recital 13 of the latter, that the overcapacity is ‘relative’, is not based on any explanation.
Admittedly, it is not necessary for the institutions’ reasoning to go into all the relevant facts and points of law. The question whether a statement of reasons satisfies those requirements must be assessed with reference not only to its wording but also to its context and the entire body of legal rules governing the matter in question (see judgment of 9 January 2003, Petrotub and Republica v Council,
C‑76/00 P
,
EU:C:2003:4
, paragraph
).
However, as the applicants and the Commission point out, the Council’s assertion that there was ‘some’ overcapacity in India, Taiwan and Thailand contradicts the Commission’s analysis in its proposal and, as regards India, the conclusion of the Council itself in Implementing Regulation No 461/2013 that that overcapacity ‘ha[d] to be regarded as significant’ (recital 193). In those circumstances, it was for the Council to provide explanations in the contested decision in order to enable the parties to understand the reasoning underlying its statement and to enable the Court to carry out a review.
The contested decision is therefore vitiated by a lack of reasoning, and the explanations put forward by the Council before the General Court are not capable of remedying such a defect (see, to that effect, Corsica Ferries France v Commission,
T‑349/03
,
EU:T:2005:221
, paragraph
and the case-law cited).
In any event, assuming that it were necessary to take account of the Council’s explanations, it should be pointed out that, in so far as the exporting producers in Taiwan and Thailand had refused to cooperate, the Commission was entitled to rely on the available facts, in accordance with Article 18 of the basic regulation.
Secondly, the Council found that demand was on the rise in most important markets (recital 13 of the contested decision), which coincided with its statement, in recital 6 of the contested decision, that ‘the main export markets for PET [were] growing’ and that ‘the global demand for PET-packaged products [was] likely to expand further as the world economy recover[ed]’. Neither the applicants nor the Commission disputes the Council’s statements.
Thirdly, the Council took the view, essentially, that, following the removal of the anti-dumping measures in question, the Union’s price attractiveness would be less important, since prices would align downwards on those of the other countries (recital 14 of the contested decision). The Council’s argument was based on the finding that the price level in the Union was higher than that of other main markets on account of the anti-dumping measures in question and that, without the latter, prices in the Union would tend to align downward on those of the other countries.
In that regard, it must be noted, as the applicants and the Commission have done, that the Council’s argument implied that imports from India, Taiwan and Thailand, on account of their volume, were likely to affect the level of prices in the European Union. However, the Council stated at the same time, in recital 14 of the contested decision, that ‘although there could be an increase of imports after the lapse of the measures, this increase would not be significant’. The reasons given in the contested decision are therefore contradictory. Moreover, as the applicants pointed out at the hearing, the Council’s assertion in the contested decision that ‘the price level in the EU [wa]s higher than in other major markets because these long-lasting measures [we]re in force’ is not reasoned in any way.
The Council submits in the defence that the price reduction in the event of the removal of the anti-dumping measures at issue referred to in recital 14 of the contested decision did not necessarily mean that injurious dumping would recur. According to the Council, pressure on prices in the European Union does not come principally from India, Taiwan and Thailand. That assessment, it claimed, was supported by the fact that those imports accounted for less than 4% of the EU market share, whereas imports from third countries not subject to anti-dumping measures, which have lower prices, represented 15.9% of that same market share. In reply to the Commission’s statement in intervention, the Council contends that it did not state in the contested decision that the price increase in the European Union would simply result from the application of the anti-dumping measures. On that point, the Council notes that Indian exporters increased their prices by 29%.
In that regard, it must be held that those explanations contradict the finding made in recital 14 of the contested decision that prices in the European Union were higher ‘because these long-lasting measures [we]re in force’. As stated in paragraph 123 above, that finding necessarily reflects the view that imports from India, Taiwan and Thailand were liable to affect the level of prices charged in the European Union.
The Council’s arguments therefore do not call into question the finding set out in paragraph 123 above that the reasons given in the contested decision are therefore contradictory in respect of the analysis of the attractiveness of the EU market.
Fourthly, the Council notes, in recital 14 of the contested decision, that ‘trade defence measures in third countries are unlikely to deflect significant trade towards the EU because these countries are not the world’s main consumers of PET’. The Council refers indirectly to the existence, noted by the Commission in its proposal, of certain trade defence measures in Turkey, South Africa and Malaysia in respect of imports from India, Taiwan and Thailand.
On that point, it must be noted, as the applicants did, that, when the Commission found, in the course of the investigation, that certain countries had adopted trade defence measures against PET imports from India, Taiwan and Thailand, it did not mean that the existence of such measures deflected significant trade towards the EU. By that finding, the Commission merely asserted that the application of those measures potentially reduced the number of markets to which India, Taiwan and Thailand’s exports could have access. Such a statement is not contested by the Council in the contested decision.
The lack of deflection of considerable trade flows to the European Union noted by the Council, in recital 14 of the contested decision, therefore does not make it possible, of itself, to establish that the likelihood of recurrence of injurious dumping has not been demonstrated.
Fifthly and finally, the Council notes, in recital 14 of the contested decision, that ‘no information has been provided on the existence or otherwise of trade defence measures in other major PET markets such as the US and Japan’. The Council further states, in recital 15 of the contested decision, ‘that no persuasive evidence has been provided on a number of factors which seem relevant to any assessment of whether removal of duties would lead to a resumption of injurious dumping’. According to the Council, ‘these [factors] include: (a) Demand trends in third countries …; (b) Transport costs and other factors affecting profitability [of exports]’.
In that regard, the applicants rightly point out that the possibility for third countries, including the United States and Japan, to absorb the overcapacity of India, Taiwan and Thailand was examined by the Commission, contrary to what the Council states in recitals 14 and 15(a) of the contested decision. Thus, the Commission analysed in its proposal the allegations of certain interested parties based on the fact that ‘the main export markets of Taiwan’s PET production [were] the Asia-Pacific region and the Americas’ (paragraph 101) and on the need to ‘take into account the increasing demand on other third markets’ (paragraph 104). However, the Commission rejected those allegations by recalling that it did not claim that ‘the entirety of any excess capacity available for exports would be directed to the Union’, but only that ‘the quantities likely to be directed to the Union market are expected to be above levels likely to cause injury’ (paragraph 104).
As regards the failure to take account of the cost of transport and other factors having an impact on the profitability of exports, as set out in recital 15(b) of the contested decision, the applicants observe that the Commission’s investigation examined the cost, insurance and freight (CIF) price of imports into the European Union, which includes the cost of transport, and comparable prices of imports into third countries.
In that respect, it should be noted, as the private interveners did, that when the Commission examined the attractiveness of the EU market, it compared the export prices of India, Taiwan and Thailand to third countries with the price of exports from those same countries to the European Union, without examining the impact of the cost of transport on the profitability of exports.
However, as noted by the Commission, the attractiveness of the European Union and the profitability of exports were also determined in its proposal, in particular because of the size of the EU market (the third largest in the world) and prices within it, significantly above the prices of Indian, Taiwanese and Thai exports to third countries.
In those circumstances, the Council’s finding, in recital 15(b) of the contested decision, that the Commission had not provided any evidence on ‘other factors having an impact on the profitability’ of exports to the European Union is flawed.
– The adequate protection of EU industry by other trade defence measures
The Council noted, in recital 16 of the contested decision, that ‘other factors point[ed] to the likelihood that removal of measures [should] not lead to a resumption of dumping which causes material injury to the Union Industry’. It stated that ‘continued anti-subsidy measures against India and anti-dumping measures against China and other countries [would] continue to provide some protection for the Union Industry’.
In that regard, it must be held that the Council acknowledged before the Court that it had made an error, in recital 16 of the contested decision, in referring to the existence of anti-dumping measures in respect of countries other than China, as no such measures were in place.
Furthermore, the Council did not explain the reasons why the existence of certain trade defence measures made it possible to conclude that the likelihood of recurrence of injury had not been demonstrated.
The Council’s statement in recital 16 of the contested decision that EU industry was sufficiently protected is therefore vitiated by a failure to state reasons.
– The effect on other operators of the removal of the measures
The Council held, at the end of recital 16 of the contested decision, that ‘the past pattern of trade in th[at] market also suggest[ed] that any rise in exports from India, Thailand and Taiwan could partly or wholly displace third country imports rather than EU production’ (recital 16 in fine).
As noted by the applicants at the hearing, the Council’s statement is not sufficiently reasoned, as the mere reference to the ‘past pattern of trade in th[at] market’ does not enable the General Court to review the merits of the statement, even in the light of the context which led to the adoption of the contested decision (see paragraph 117 above). It must therefore be held that there was a failure to state reasons on that point.
– Conclusion on the assessment of the likelihood of recurrence of injury
It follows from the foregoing that the Council’s analysis, in recitals 8 to 17 of the contested decision, is vitiated by manifest errors of assessment and, in certain respects, by a lack of reasoning, and indeed contradictory reasons.
However, the contested decision should not be annulled if the Council’s conclusion in recital 23 of the contested decision that ‘it [was] clearly not in EU interests to extend the measures’ is not vitiated by a manifest error of assessment or by any failure to state reasons. In accordance with Article 21(1) of the basic regulation, even if the existence of a likelihood of injurious dumping is established, the expiry of the measures at issue is possible where the institutions ‘can clearly conclude that it is not in the Union’s interest to apply such measures’.
The examination of the Union’s interest within the meaning of Article 21(1) of the basic regulation
The examination of the Union’s interest in accordance with Article 21(1) of the basic regulation requires an assessment of the likely consequences both of applying and of not applying the measures proposed for the interest of the Union industry and for the other interests at stake, in particular those of the various parties referred to in Article 21 of the basic regulation. That assessment involves a forecast based on hypotheses regarding future developments, which includes an appraisal of complex economic situations (judgment of 8 July 2003, Euroalliages and Others v Commission,
T‑132/01
,
EU:T:2003:189
, paragraph
).
In the contested decision, the Council analysed the Union’s interest as follows:
‘(18)
Article 21(1) of the basic regulation provides that a determination as to whether the Union interest calls for intervention is to be based on an appreciation of all the various interests taken as a whole.
(19)
PET prices are determined by a number of factors, but it is clear the anti-dumping measures have increased the costs to the user industry. Many users are bottlers and SMEs operating on tight margins and they have been seriously affected by high PET prices in recent years because PET represents a decisive proportion of their production costs. The impact of the high costs has been biggest on smaller bottling companies who have not been able to pass the increased prices on to retailers and final consumers due to low negotiating power. Many are heavily loss-making and have lost a significant number of employees. The proposal recognises the deteriorating situation of users and the fact that EU PET prices are higher than in other major markets. However, in the Council’s opinion, it has not been demonstrated that the measures in question [were] not a contributing factor to the relatively high Union PET prices.
(20)
The EU PET industry is now highly concentrated and increasingly vertically integrated. It is profitable and should be able to be internationally competitive.
(21)
The accumulation of measures combined with the increasing integration of PET producers and PET-packaging companies in the EU creates a situation in which there is a lack of a level playing field for independent PET-packaging companies which are subject to PET at the highest prices worldwide (given the horizontal effect existing on PET prices), while their main competitors in third countries have access to PET at lower prices.
(22)
PET users have very limited sources of supply outside the EU, because measures are also in force against imports originating in other third countries.
(23)
The Council concludes that it is clearly not in the interest of the Union to extend the measures as the costs to importers, users and consumers are disproportionate to the benefits for the Union industry.’
The applicants, supported by the Commission, point out that Article 21(1) of the basic regulation requires special consideration to be given to the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition. However, contrary to Implementing Regulation No 461/2013, the contested decision does not even mention that possibility and only addresses the interests of users of PET in the European Union, disregarding the interests of independent importers, suppliers of raw material and PET recyclers, which were examined by the Commission in the proposal for anti-dumping duties. In the reply, the applicants submit that the Council’s conclusion, that there would be no recurrence of injurious dumping in the event of non-renewal of the measures, is manifestly incorrect.
Regarding, more specifically, the interests of PET users in the EU, the applicants note that the three items relied upon by the Council in recitals 19 to 22 of the contested decision were contradicted by the Council itself in recitals 234, 249 and 252 to 260 of Implementing Regulation No 461/2013, which are based on the Commission’s analysis. The Commission further observes that it was for the Council to prove positively that it was not in the Union’s interest to apply the anti-dumping measures in question.
The Council, supported by the private interveners, replies that it examined in detail in the contested decision the question of dumping injurious to Union industry, in particular in recital 4 in the case of imports from Indonesia and Malaysia and in recitals 5, 12, 15 and 16 in the case of India, Thailand and Taiwan. The Council therefore fulfilled its obligation to assess all the interests at stake as a whole and did not infringe Article 21(1) of the basic regulation. As regards the alleged manifest error of assessment, the Council and the private interveners state that it was considered unlikely that the Union industry would be prejudiced if the anti-dumping measures in question were lifted and that the Council took account of that conclusion in its assessment of the Union’s interest, in accordance with Article 21 of the basic regulation.
As regards, in particular, the interests of users of PET in the Union, the Council observes that the applicants do not dispute the high price level of PET in the European Union or the very limited nature of those users’ sources of supply. On the other hand, the applicants do dispute the manner in which it assessed those facts and the conclusions which it drew from them. However, that assessment is not vitiated by a manifest error, nor is it unreasonable. Nor are the facts on which that assessment is based manifestly erroneous. The private interveners add that the Council’s findings on the Union industry necessarily relate to the interests of producers of raw materials. They also point out that the Council paid particular attention to the situation of users, as users are the principal focus of the Union (other than PET producers) in the investigation. Neither the importers nor the PET recycling industry participated in or submitted comments during the investigation. The private interveners also stress the particular problem of the loss of workers among bottlers as well as the specific problems faced by SMEs.
Finally, as regards the assessment made in Implementing Regulation No 461/2013, the Council submits that it was a different procedure and related to different facts. Furthermore, that regulation was not subject to judicial review by the General Court.
In that regard, it should be noted that the Council and the private interveners themselves acknowledge that the conclusion, in recital 23 of the contested decision, on the manifest lack of Union interest in maintaining the measures is based on the Council’s conclusions that it was unlikely that the expiry of the measures would lead to the recurrence of material injury to the European Union (recital 17) or at least that such likelihood had not been shown (recital 5).
The Council referred essentially to recitals 8 to 17 of the contested decision when it noted, in recital 20 of that decision, that the EU PET industry ‘[was] profitable and should be able to be internationally competitive’. The Council’s assertion in recital 19 of the contested decision that ‘it [was] clear the anti-dumping measures ha[d] increased the costs to the user industry’ was necessarily based on the finding in recital 14 that ‘the price level in the EU [wa]s higher than in other major markets because these long-lasting measures [we]re in force’.
As pointed out in paragraph 142 above, the Council’s analysis of the likelihood of a risk of damage is vitiated by manifest errors of assessment and, in certain respects, by a lack of reasoning, and indeed contradictory reasons. Those defects therefore also affect the Council’s conclusion in respect of the Union’s interest in maintaining the anti-dumping measures at issue.
Conclusion on the application for annulment
In the light of the foregoing, it is appropriate, without there being any need to examine the first and third pleas raised by the applicants, to allow the second plea in law and to annul in part the contested decision in so far as it is vitiated by manifest errors of assessment and defects in the analysis of both the likelihood of recurrence of injury in the event of non-renewal of the anti-dumping duties at issue and of the Union interest in maintaining those duties in place.
2.
The claims for damages
The Court has jurisdiction in matters of non-contractual liability under Article 268 and the second and third paragraphs of Article 340 TFEU. The latter provision states that the Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
According to settled case-law, in order for the Union to incur non-contractual liability under the second paragraph of Article 340 TFEU as a result of the unlawful conduct of its institutions or organs, a number of conditions must be satisfied: the conduct alleged against the institution or organ of the European Union must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage complained of (judgments of 29 September 1982, Oleifici Mediterranei v EEC,
26/81
,
EU:C:1982:318
, paragraph
, and of 14 December 2005, Beamglow v Parliament and Others,
T‑383/00
,
EU:T:2005:453
, paragraph
).
In the present case, the applicants submit that the three conditions are met, which the Council disputes.
Before examining whether the conditions for the European Union to incur liability set out in paragraph 156 above are met in the present case, the scope of the applicants’ claims should be clarified.
The scope of the applicants
’ claims
In accordance with settled case-law, Article 268 TFEU does not preclude bringing an action for non-contractual liability as a result of imminent damage foreseeable with sufficient certainty, even if the damage cannot yet be assessed (see, to that effect, judgment of 8 June 2000, Camar and Tico v Commission and Council,
T‑79/96, T‑260/97 and T‑117/98
,
EU:T:2000:147
, paragraphs
and
and the case-law cited).
In the present case, the applicants brought their claims for damages on 14 August 2013, approximately two and a half months after the entry into force of the contested decision, arguing that they had suffered damage since that date resulting from a serious breach of superior rules of law protecting EU industry.
According to the applicants, the damage claimed is twofold.
The first type of damage derives from the fact that, following the contested decision, the applicants were forced to maintain their EU sales prices at loss-making levels, in order to compete with dumped imports from India, Taiwan and Thailand. They continue to lose market shares to producers from India, Taiwan and Thailand. That loss is due to the difference between their earnings before interest, taxes and amortisation (‘EBITA’) estimated for the period (partly future at the time of bringing the action) from June 2013 to May 2014 and the EBITA during the (past) period between April 2012 and March 2013. The applicants annexed to the application a calculation of the estimated loss and asked the Court for permission to bring up to date their information and calculations at a later stage of the proceedings. According to the applicants, such a possibility had already been accepted by the Court (see, to that effect, judgment of 30 September 1998,
Coldiretti and Others
v
Council and Commission
, T‑149/96, paragraphs 49 and 50).
The second type of damage, briefly set out in the application, results from the fact that the applicants were forced to make job redundancies or close EU production sites following the contested decision. In the annex to the application, the applicants refer to the imminent closure of a factory belonging to UAB Indorama Polymers Europe UK in the United Kingdom and a factory [
confidential
] (
). In the reply, Lotte Chemical UK also claimed reimbursement of the costs of closing a PTA factory, which was linked to the closure of the UAB Indorama Polymers Europe UK factory in the United Kingdom.
In total, according to the applicants’ initial calculations set out in the application and in the reply, the injury suffered by them amounts to [
confidential
] for Cepsa Química, [
confidential
] for Equipolymers, [
confidential
] for Indorama Group (which encompasses four applicants, namely: Indorama Ventures Poland, UAB Indorama Polymers Europe, UAB Orion Global pet and Ottana Polimeri), [
confidential
] and [
confidential
] for Lotte Chemical UK, [
confidential
] for M & G Polimeri Italia, [
confidential
] for Novapet and [
confidential
] for UAB Neo Group.
As part of the updating of their claims for compensation (see paragraph 28 above), seven applicants — namely Cepsa Química, Indorama Ventures Poland, Lotte Chemical UK, Ottana Polimeri, UAB Neo Group, UAB Indorama Polymers Europe and UAB Orion Global pet — waived their claim for damages in respect of the losses incurred (first type of alleged damage). Only three applicants maintained that claim — namely Equipolymers, M & G Polimeri Italia and Novapet — and only for the nine-month period from June 2013 to February 2014. The applicants explained that the limitation was motivated by the entry into force of Commission Implementing Decision 2014/109/EU of 4 February 2014 repealing Decision 2000/745/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of certain polyethylene terephthalate (PET) originating, inter alia, in India (
OJ 2014 L 59, p. 35
). According to the applicants, the withdrawal by that decision of the minimum price undertakings granted to several Indian exporting producers as from 1 March 2014 led to a considerable drop in imports of PET from India to the European Union.
As regards the second type of damage alleged — namely the costs of closure of certain sites — the application was only maintained by UAB Indorama Polymers Europe and Lotte Chemical UK, and only for the damage related to closure for the year 2013.
Moreover, for the two types of damage alleged, the applicants acknowledged that part could be attributed to the losses caused by imports from Indonesia and Malaysia and not to the illegalities complained of in the contested decision. In those circumstances, they seek only compensation for 77% of the losses and the alleged costs of closure.
Finally, as regards the CPME, the applicants stated that, as an association, it had not suffered any losses.
It follows that the claims for damages were maintained, in part, only by the following applicants: Equipolymers, M & G Polimeri Italia, Novapet, UAB Indorama Polymers Europe and Lotte Chemical UK.
It is therefore necessary to examine whether those claims satisfy the three conditions required for the Union to incur non-contractual liability referred to in paragraph 156 above.
In accordance with the case-law, where one of those conditions is not fulfilled, the damages claims must be dismissed without there being any further need to consider whether the other two conditions are met (see, to that effect, judgments of 15 September 1994, KYDEP v Council and Commission,
C‑146/91
,
EU:C:1994:329
, paragraph
, and of 20 February 2002, Förde-Reederei v Council and Commission,
T‑170/00
,
EU:T:2002:34
, paragraph
). Furthermore, the Court is not obliged to examine those conditions in any particular order (judgment of 9 September 1999, Lucaccioni v Commission,
C‑257/98 P
,
EU:C:1999:402
, paragraph
).
The Court considers it appropriate to examine first the condition relating to the direct causal link between the conduct and the damage pleaded.
The direct causal link
According to settled case-law, as regards the existence of a causal link between the alleged conduct and the damage pleaded, that damage must be a sufficiently direct consequence of the conduct complained of, which must be the determinant cause of the harm (judgment of 4 October 1979, Dumortier and Others v Council,
64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79
,
EU:C:1979:223
, paragraph
; see also judgment of 10 May 2006, Galileo International Technology and Others v Commission,
T‑279/03
,
EU:T:2006:121
, paragraph
and the case-law cited). It is for the applicant to adduce evidence of a causal link between the conduct complained of and the damage pleaded (see judgment of 30 September 1998, Coldiretti and Others v Council and Commission,
T‑149/96
,
EU:T:1998:228
, paragraph
and the case-law cited).
In the present case, it is necessary to examine whether the applicants have proved to the requisite legal standard that the two types of damage alleged (see paragraphs 162 and 163 above) flowed sufficiently directly from the conduct complained of.
The losses incurred by Equipolymers, M & G Polimeri Italia and Novapet
In the context of the updating of their claim for damages, based on the actual database, the applicants compared the data for the nine-month period following the entry into force of the contested decision (from June 2013 to February 2014) with those of the nine-month period immediately preceding the entry into force of that decision (from September 2012 to May 2013).
The applicants pointed out that, as a percentage of Union consumption, which was approximately 2119425 metric tonnes (MT) during the two periods examined, imports from India, Taiwan and Thailand increased from approximately 3.8% during the period from September 2012 to May 2013 to 5.6% during the period from June 2013 to February 2014. The price of imports from those three countries fell by EUR 88/MT between the two periods, from EUR 1 202/MT in the period from September 2012 to May 2013 to EUR 1 114/MT in the period from June 2013 to February 2014. According to the applicants, it is therefore clear that the unlawful lifting of the anti-dumping duties at issue led to an immediate and substantial increase in imports from India, Taiwan and Thailand, as well as a significant fall in prices, which had a negative impact on the applicants’ results.
The applicants assessed the loss-related damage following the contested decision as representing 77% of the difference between the EBITA for the period from September 2012 to May 2013 and the EBITA for the period from June 2013 to February 2014. According to the applicants, EBITA is the most appropriate element for determining the damage flowing from the contested decision. That indicator is mainly based on earnings and operating expenses and does not take into account other sources of potential losses (or gains), such as capital expenditures or factory closure costs. In addition, monthly EBITA can be readily ascertained in the applicants’ management systems.
The applicants also point out that the price of the main raw materials, which could have an influence on EBITA, decreased slightly between the two periods under consideration and thus had no negative impact on the EBITA results of the Union industry.
On the basis of those particulars, Equipolymers requests the payment of an amount of [
confidential
] by way of damages (instead of the original amount of [
confidential
]), M & G Polimeri Italia an amount of [
confidential
] (instead of the initial amount of [
confidential
]) and Novapet an amount of [
confidential
] (instead of the original amount of [
confidential
]).
In the first place, the Council observes that, in updating the claim for damages, the applicants amended the application as originally defined. In the application, they complained of a loss of profit as a result of the contested decision — which included the losses incurred in maintaining market shares vis-à-vis imports — whereas in the update they refer only to the loss of business suffered. However, the applicants used the same methodology for quantifying both types of losses — namely the comparison of EBITA over two periods — which shows that it is defective. Moreover, according to the Council, the case-law authorising some flexibility with respect to the future injury or the impossibility of quantifying the damage may not be applied to the method (or to the amendments to a predetermined method) that must be used to carry out that quantification.
Secondly, the Council argues that EBITA may be influenced by factors other than the contested decision and does not measure the loss of business but the profitability of the companies. Moreover, the applicants compare the EBITA recorded in different periods of the year (from September 2012 to May 2013 and from June 2013 to February 2014), which goes beyond a simple updating and distorts the analysis because the demand for PET is greater in some months than others.
Thirdly, the Council considers that the withdrawal of the claims for compensation by most of the applicants demonstrates that the applicants have not been able to establish injury and that the losses sustained by the three applicants who maintained their claims are not due to the contested decision but to other factors. Data from the Statistical Office of the European Union (Eurostat) shows that imports from India, Taiwan and Thailand fell in 2014 and 2015, which explains the applicants’ restriction of their claim for damages to the period from June 2013 to February 2014.
Finally, the Council considers that the decline in prices of the main raw materials, if accompanied by lower PET prices, may have had an impact on EBITA results that were not assessed by the applicants.
As a preliminary point, it should be noted that the initial determination of the damage allegedly suffered by the applicants in respect of the losses incurred as a result of the contested decision (first alleged damage) was based in part on an estimate covering the period from June 2013 to May 2014 (see paragraph 162 above). That calculation included an estimate of the losses attributable to the expected injurious dumping following the unlawful adoption of the contested decision. That estimate was based on the Commission’s 2000 analysis, when the anti-dumping duties at issue were imposed for the first time. In Regulation (EC) No 1742/2000 of 4 August 2000 imposing a provisional anti-dumping duty on imports of certain polyethylene terephthalate (PET) originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand (
OJ 2000 L 199, p.48
), the Commission found that the Union industry had to align its prices down sharply with those of imports subject to dumping in order to regain the market share it had lost, which had resulted in a 15% loss in net sales. Another variable in the calculation used by the applicants was based on the Commission’s estimate of the increase in imports from the countries in question in its proposal for a regulation. Consequently, the existence of injury attributable to the unlawful adoption of the contested decision had not been demonstrated by the applicants on the basis of actual data.
That estimate was replaced by the quantification of damage carried out by the applicants in their update on the basis of EBITA actually observed during the period from June 2013 to February 2014.
It is therefore necessary to examine the applications, as they were set out in the context of that update.
In that regard, it must be held that the information provided by the applicants in the context of the update does not make it possible to establish to the requisite legal standard that there is a causal link between the unlawful adoption of the contested decision and the alleged losses.
As the Council points out, the applicants did not make a distinction, in the reduction of their EBITA, between the part which would be caused by the increase in imports at low prices following the unlawful adoption of the contested decision and that resulting from other factors likely to cause or lead to a decrease in that single economic indicator. The EBITA may have been influenced by factors other than the contested decision, in particular, changes in sales practices, competition between EU producers and competition between their products and imports from countries other than India, Taiwan, Thailand, Malaysia and Indonesia. In that regard, it should be noted, as the Council has done, that, during the period from June 2013 to February 2014, imports from India, Taiwan and Thailand represented only 5.6% of Union consumption and those from Malaysia and Indonesia 1.72%.
It follows that the applicants have not established the existence of a direct and sufficient causal link capable of engaging the Union’s liability.
The costs of closing certain sites incurred by UAB Indorama Polymers Europe and Lotte Chemical UK
As was pointed out in paragraph 163 above, the applicants briefly claimed in the application that they would also be obliged to dismiss staff or close production sites in the European Union as a result of the contested decision.
In their update, the applicants limited their claim for damages under that head to the costs incurred by UAB Indorama Polymers Europe due to the closure of its factory in the United Kingdom, and to those incurred by Lotte Chemical UK due to the closure of its PTA factory. Moreover, as recalled in paragraph 167 above, those applicants claim only 77% of those costs, inasmuch as, in their view, part of the costs may be attributed to imports from Malaysia and Indonesia. On that basis, UAB Indorama Polymers Europe claims the sum of [
confidential
] (instead of [
confidential
]) and Lotte Chemical UK the sum of [
confidential
] (instead of [
confidential
]).
The Council denies the existence of any causal link. Moreover, in its observations on the updating of the applicants’ claims for damages, it submits that those which were maintained are inadmissible under Article 84 of the Rules of Procedure in that they were lodged late, either in the reply to Lotte Chemical UK or in the update for UAB Indorama Polymers Europe.
In that respect, as regards the merits of the applications, it must be held, as the Council has done, that in order to demonstrate a causal link between the alleged damage and the conduct complained of, the applicants, in the application and in the reply, merely produced press releases or letters stating that the closure of the factories was due to the contested decision. However, those documents, drawn up by the applicants themselves, do not demonstrate that the closure of those sites is attributable to the contested decision because no index or data is produced. Furthermore, as regards UAB Indorama Polymers Europe’s factory in the United Kingdom, the very wording of the press release concerning its closure does not impute the closure to the contested decision, but to declining margins and increased competition, especially in Asia. As noted by the Council, imports from South Korea, which is also in Asia, increased during the period considered and may well have led to the closure of the factory. Furthermore, as regards Lotte Chemical UK’s PTA production factory, the applicants do not claim that its closure is directly attributable to the unlawful adoption of the contested decision, but merely assert that ‘one of the main reasons’ for that closure is the closure of UAB Indorama Polymers Europe’s PET factory in the United Kingdom.
In their update of the applications for compensation, the applicants have not produced any additional evidence to establish that causal link. The applicants merely provided the consolidated financial statements of UAB Indorama Polymers Europe and Lotte Chemical UK in order to demonstrate the costs of the dismissals on which their applications were based, without adducing any further evidence capable of establishing a causal link between the alleged damage and the alleged illegality.
In those circumstances, the applicants’ claims concerning the closure costs incurred by UAB Indorama Polymers Europe and Lotte Chemical UK must be rejected, without there being any need to examine whether, as the Council submits, those applications were lodged at a late stage in the proceedings, in breach of Article 84 of the Rules of Procedure.
In the light of the foregoing, it follows that the applicants have not established the existence of a direct and sufficient causal link capable of engaging the Union’s liability.
Conclusions on the claims for damages
In so far as, in accordance with the case-law cited in paragraph 171 above, the absence of only one of the conditions necessary to give rise to the liability of the Union is sufficient to reject the claim for compensation, the applicants’ claims for compensation must be dismissed as a whole, without it being necessary to examine the conditions relating to the existence of a sufficiently serious breach of a rule of law conferring rights on individuals and the existence of injury.
Costs
Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay costs if the successful party has so requested in its pleadings. Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. Furthermore, in accordance with Article 138(1) of the Rules of Procedure, Member States and institutions which intervene in proceedings are to bear their own costs.
Since the Council has been unsuccessful in respect of the applicants’ action for annulment and since the applicants have been unsuccessful in respect of their claims for compensation, the applicants and the Council must be ordered to bear their own costs, with the exception of those referred to in paragraph 200 below.
In addition to their own costs, the private interveners will bear the costs incurred by the applicants as a result of their intervention, in accordance with the form of order sought by the applicants.
The Commission is to bear its own costs.

On those grounds,
THE GENERAL COURT (First Chamber),
hereby:

1.
Annuls Council Implementing Decision 2013/226/EU of 21 May 2013 rejecting the proposal for a Council implementing regulation imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia, in so far as the proposal would impose a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand, inasmuch as it rejected the proposal to impose a definitive anti-dumping duty on imports originating in India, Taiwan and Thailand and terminated the review proceeding concerning imports of polyethylene terephthalate (PET) from those three countries;

2.
Dismisses the claims for compensation;

3.
Orders the Committee of Polyethylene Terephthalate (PET) Manufacturers in Europe (CPME), Cepsa Química, SA, Equipolymers Srl, Indorama Ventures Poland sp. z o.o., Lotte Chemical UK Ltd, M & G Polimeri Italia SpA, Novapet, SA, Ottana Polimeri Srl, UAB Indorama Polymers Europe, UAB Neo Group and UAB Orion Global pet to bear their own costs, except for those referred to in paragraph (5) below;

4.
Orders the Council of the European Union to bear its own costs;

5.
Orders the European Federation of Bottled Waters (EFBW), Caiba, SA, Coca-Cola Enterprises Belgium (CCEB), Danone, Nestlé Waters Management & Technology, Pepsico International Ltd and Refresco Gerber BV to bear, in addition to their own costs, those incurred by the applicants by virtue of their intervention;

6.
Orders the European Commission to bear its own costs.

Kanninen
Pelikánová
Buttigieg
Delivered in open court in Luxembourg on 5 April 2017.
E. Coulon
Registrar
President
Table of contents

Legal framework

Background to the dispute

Procedure and forms of order sought

Law

1. Application for annulment

The second plea in law, alleging manifest error of assessment and breach of Article 11(2) and Article 21(1) of the basic regulation

The analysis to be carried out by the Council on the basis of Article 11(2) of the basic regulation and the scope of the Court’s review of the contested decision

The review of the likelihood of recurrence of injury within the meaning of Article 11(2) of the basic regulation

– The existence of positive economic indicators, in particular, the increase in PET prices

– The non-significant volume of imports from India, Taiwan and Thailand during the RIP

– The actual beneficiaries of measures in terms of market shares

– The lack of price undercutting during the period under review

– The non-significant volume of imports from India, Taiwan and Thailand in the event of repeal of the measures

– The adequate protection of EU industry by other trade defence measures

– The effect on other operators of the removal of the measures

– Conclusion on the assessment of the likelihood of recurrence of injury

The examination of the Union’s interest within the meaning of Article 21(1) of the basic regulation

Conclusion on the application for annulment

2. The claims for damages

The scope of the applicants’ claims

The direct causal link

The losses incurred by Equipolymers, M & G Polimeri Italia and Novapet

The costs of closing certain sites incurred by UAB Indorama Polymers Europe and Lotte Chemical UK

Conclusions on the claims for damages

Costs
(
*1
)	Language of the case: English.
(
)	The list of the other applicants is annexed only to the version sent to the parties.
(
)	Confidential information omitted.