# C_2022073EN.01001701.xml

| 14.2.2022 | EN | Official Journal of the European Union | C 73/17 |
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14.2.2022

EN

Official Journal of the European Union

C 73/17

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Appeal brought on 3 December 2021 by Novolipetsk Steel PAO against the judgment of the General Court (Tenth Chamber) delivered on 22 September 2021 in Case T-752/16, NLMK v Commission

(Case C-748/21 P)

(2022/C 73/22)

Language of the case: English

Parties

Appellant: Novolipetsk Steel PAO (represented by: M. Krestiyanova and N. Tuominen, lawyers)

Other parties to the proceedings: European Commission and Eurofer, European Steel Association, ASBL

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal; |
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set aside the judgment under appeal;

| — | give final judgment in the matter, where the state of the proceedings so permits, |
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give final judgment in the matter, where the state of the proceedings so permits,

| — | in the alternative, refer the case for reconsideration to the General Court; |
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in the alternative, refer the case for reconsideration to the General Court;

| — | order the Commission to pay the costs of the proceedings before the Court of Justice as well as the costs of the proceedings before the General Court. |
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order the Commission to pay the costs of the proceedings before the Court of Justice as well as the costs of the proceedings before the General Court.

Pleas in law and main arguments

The appeal is based on the following grounds:

| — | First, the General Court committed an error in law by misinterpreting Article 18(1) of the basic regulation (1), made substantially incorrect findings of facts and distorted the clear sense of the evidence. The General Court started from the premise that the product concerned was semi-finished and failed to provide any reasoning as to why it simply assimilated the Commission’s view on this. However, this is the first contentious point between the parties, and it significantly affects the way Article 18(1) of the basic regulation must be applied. Stopping short of considering this contentious point, let alone appreciating its significance for the application of Article 18(1), the General Court fails to fathom that, without settling this first disagreement between the parties, it is impossible to reach any conclusion as to whether the Commission applied Article 18(1) correctly or not in the current proceedings. |
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First, the General Court committed an error in law by misinterpreting Article 18(1) of the basic regulation (1), made substantially incorrect findings of facts and distorted the clear sense of the evidence. The General Court started from the premise that the product concerned was semi-finished and failed to provide any reasoning as to why it simply assimilated the Commission’s view on this. However, this is the first contentious point between the parties, and it significantly affects the way Article 18(1) of the basic regulation must be applied. Stopping short of considering this contentious point, let alone appreciating its significance for the application of Article 18(1), the General Court fails to fathom that, without settling this first disagreement between the parties, it is impossible to reach any conclusion as to whether the Commission applied Article 18(1) correctly or not in the current proceedings.

| — | Second, the General Court committed a manifest error of assessment when interpreting Article 9(4) of the basic regulation and by failing to address essential arguments, or to provide reasons. Under the General Court’s protection, the Commission exceeded by far the limits of the investigation period or of the period considered, by choosing 2008 as ‘the most recent representative year’ following the financial crisis. Relatedly, the Appellant argues that the Contested Judgment’s finding of injury is vitiated in that it is not the result of a balancing of both positive and negative relevant factors. In that context, the Appellant argued that a reduction of the Union industry’s costs of production should, among other factors, be also associated with the situation of the Union industry following the global financial crisis of 2012. However, the General Court refused to even consider whether the financial crisis would have also affected the injury chain. |
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Second, the General Court committed a manifest error of assessment when interpreting Article 9(4) of the basic regulation and by failing to address essential arguments, or to provide reasons. Under the General Court’s protection, the Commission exceeded by far the limits of the investigation period or of the period considered, by choosing 2008 as ‘the most recent representative year’ following the financial crisis. Relatedly, the Appellant argues that the Contested Judgment’s finding of injury is vitiated in that it is not the result of a balancing of both positive and negative relevant factors. In that context, the Appellant argued that a reduction of the Union industry’s costs of production should, among other factors, be also associated with the situation of the Union industry following the global financial crisis of 2012. However, the General Court refused to even consider whether the financial crisis would have also affected the injury chain.

| — | Third, the General Court committed an error in law by misinterpreting Article 2(9) of the basic regulation and by failing to address all arguments, some raised by the General Court itself. The General Court defied its own case law to find in contradiction with the law that Article 2(9) adjustments could also be used by analogy for the injury margin calculation. The adjustment for SG&A and profit to the CIF export price of the Appellant for injury margin purposes is inadequate, unreasonable and constitutes a manifest error of assessment, since the only relevant export price is the actual open market (CIF) Union border price entering the Union market and the competing open market price of the Union industry. The Applicant’s view finds support in the judgment of the General Court, Hansol Paper v Commission, T-383/17 (2) (paragraphs 196 to 204). |
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Third, the General Court committed an error in law by misinterpreting Article 2(9) of the basic regulation and by failing to address all arguments, some raised by the General Court itself. The General Court defied its own case law to find in contradiction with the law that Article 2(9) adjustments could also be used by analogy for the injury margin calculation. The adjustment for SG&A and profit to the CIF export price of the Appellant for injury margin purposes is inadequate, unreasonable and constitutes a manifest error of assessment, since the only relevant export price is the actual open market (CIF) Union border price entering the Union market and the competing open market price of the Union industry. The Applicant’s view finds support in the judgment of the General Court, Hansol Paper v Commission, T-383/17 (2) (paragraphs 196 to 204).

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(1)  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).

(2)  Judgment of the General Court of 2 April 2020 (Case T-383/17, Hansol Paper v Commission, EU:T:2020:139).

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