Opinion of the Advocate General — ECLI:EU:C:2011:245
Date: 2011-04-14
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded

summary of the confidential information concerning certain companies related to sampled EU producers had infringed the rights of defence of the applicants at first instance. Thirdly and finally, Niko Tube and NTRP submit that the General Court could not conclude that disclosure to them of non-confidential versions of confidential data would have had no likelihood of causing the administrative procedure to have a different result. 281. The Council and the Commission propose that these limbs should be rejected. ii) Analysis 282. The most important point to bear in mind is that, under Article 6(7) of the basic regulation, exporters and the other interested parties listed in that provision may, upon written request, inspect all information made available by any party to an investigation, with the exception of internal documents prepared by the authorities of the EU or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19 of the basic regulation, and that it is used in the investigation. 283. Under Article 19(1) of the basic regulation, any information which is by nature confidential or which is provided on a confidential basis by parties to an investigation must, if good cause is shown, be treated as such by the authorities. Article 19(2) provides, in particular, that interested parties providing confidential information are to be required to furnish non-confidential summaries thereof. According to Article 19(3), if it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. 284. Before the General Court, Niko Tube and NTRP argued that under Article 19(3) of the basic regulation, the institutions could not reasonably take into account confidential information when it was not contained in a non-confidential summary. 285. In that regard, the General Court held in paragraph 130 of the judgment under appeal that the wording of Article 19(3) of the basic regulation gives the Commission only the possibility of disregarding confidential information of which no non-confidential summary is available. 286. It should be noted that Niko Tube and NTRP do not criticise that interpretation, which, moreover, I consider to be correct. So far as this point is relevant, it is important to note that the evaluation of evidence in the field of anti-dumping measures is characterised by the fact that the documents examined often contain business secrets or other information that cannot be disclosed, or the disclosure of which is subject to significant restrictions. Accordingly, as demonstrated by Articles 6(7) and 19 of the basic regulation, documents containing evidence must not automatically be excluded as evidence when certain information must remain confidential. (40) 287. In contrast, Niko Tube and NTRP first criticise the General Court for not checking in relation to the list of documents set out in paragraph 132 of the judgment under appeal, and of which, the General Court noted, non-confidential summaries had been prepared, whether those summaries would have allowed them to have sufficient knowledge of the essential content of the documents in question. 288. As the Commission argued in its response to the cross-appeal, that line of argument cannot be linked to the plea raised at first instance, which related simply to the inadmissibility of those documents as evidence on the ground that they contained confidential information of which no confidential summary had been prepared. In those circumstances, it does not fall to the General Court, after finding that non-confidential summaries were prepared in accordance with Article 19(2) of the basic regulation, to check the content of each of those documents. 289. Secondly, Niko Tube and NTRP claim, in essence, that the General Court did not examine the real complaint, alleging infringement of Article 19(3) of the basic regulation, but merely assessed whether the use by the Commission of the confidential information listed in paragraph 133 of the judgment under appeal, in the absence of non-confidential versions of that information, constituted an infringement of the rights of defence of the applicants at first instance. 290. That argument is not persuasive. 291. It is important to bear in mind that Article 19(3) of the basic regulation governs the relationship between an interested party who supplies confidential information without wishing to authorise its disclosure even in generalised or summary form and the institution responsible for the anti-dumping investigation, which may decide that the information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. 292. Once the institution responsible for the investigation has decided that the information in question can be used, which, as I have already indicated, the basic regulation allows it to do, the question which remains, as regards the other interested parties involved in the investigation, is whether such use is capable of affecting their rights of defence. 293. In those circumstances, although it is true that the General Court did not formally reclassify the plea raised by the applicants at first instance alleging infringement of Article 19(3) of the basic regulation, Niko Tube and NTRP none the less cannot criticise the General Court for having checked, in paragraphs 133 to 135 of the judgment under appeal, whether the Commission’s use of the confidential information listed in paragraph 133 of the judgment under appeal, in the absence of the existence of non-confidential versions, resulted in an infringement of the rights of defence of the applicants at first instance. That was, to my mind, the actual purpose of the substantive examination that the General Court had to carry out in the context of the plea raised at first instance. 294. Thirdly, Niko Tube and NTRP claim that the General Court could not conclude, as it did in paragraph 135 of the judgment under appeal, that there was no likelihood that disclosure to the applicants at first instance of the non-confidential versions of the VMOG United Kingdom questionnaire reply, the presampling questionnaire reply of Productos Tubulares and the email from Dalmine of 24 May 2006 concerning the company Tenaris West Africa could have caused the administrative procedure to have a different result. 295. In that regard, it must be borne in mind, first of all, that after identifying the abovementioned documents, of which no non-confidential summary was prepared, the General Court stated, in paragraph 134 of the judgment under appeal, that, in accordance with the case-law, infringement of the right of access to the investigation file could result in total or partial annulment of the contested regulation only if there was a chance, which may be slight, that disclosure of the documents in question might have caused the administrative procedure to have a different result if the undertaking concerned had been able to rely on them during that procedure. 296. That finding is untainted by any error of law. Moreover, it is not criticised by Niko Tube and NTRP. 297. Next, applying to the present case the examination referred to, the General Court held, in paragraph 135 of the judgment under appeal, that ‘[i]n this case, the applicants [at first instance] argue that they needed those documents in order to prove that the lack of questionnaire replies from VMOG United Kingdom, [Tubos Reunidos] (41) and Tenaris West Africa distorted the analysis of the injury. However, this Court has held in paragraphs 101, 108 and 107 respectively that the Council did not make any manifest error of assessment by holding that non-submission of questionnaire replies from Productos Tubulares, VMOG United Kingdom and Tenaris West Africa, or failure to take those replies into account, had no impact on the determination of the injury. Therefore, there was no likelihood that disclosure to the applicants [at first instance] of the non-confidential versions of the VMOG United Kingdom questionnaire reply, the presampling questionnaire reply of Productos Tubulares and the email of 24 May 2006 could have caused the administrative procedure to have a different result’. 298. In challenging that conclusion, Niko Tube and NTRP merely submit in their cross-appeal, although it is undisputed that they could have acquainted themselves with the documents in question in the course of the proceedings before the General Court, that it is very likely that with the submission in good time of the relevant information it would have been possible to put forward precise arguments and especially evidence capable of changing the result and that it is only by having that information available that they could have chosen whether or not to express a view. 299. Those general considerations do not fulfil the requirement of establishing the existence of an error of law which vitiated the reasoning of the General Court. Nor do they contain the slightest indication that the latter distorted the evidence, with the result that it was clear that communication to the applicants at first instance of the documents in question during the administrative procedure would have been likely to cause that procedure to have a different result from that which it reached. 300. Fourthly, it is necessary, in my view, to reject the limb according to which the General Court infringed the rights of defence of Niko Tube and NTRP in paragraphs 132 and 135 of the judgment under appeal. On the one hand, the first paragraph merely lists the confidential documents for which a non-confidential version was prepared and those for which no such version was drawn up. On the other hand, as I have already stated and as Niko Tube and NTRP have acknowledged in paragraphs 194 and 209 of their cross-appeal, those companies were able, in the course of the proceedings before the General Court, to submit observations on the documents referred to in paragraph 135 of the judgment under appeal. 301. For all those reasons, I propose that the two limbs of the second ground of the cross-appeal alleging errors of law vitiating the examination of the alleged infringement of Article 19(3) of the basic regulation should be rejected. 302. Accordingly, I propose that the cross-appeal should be dismissed in its entirety. V – The action before the General Court 303. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, if the judgment of the General Court is set aside, give judgment in the matter, where the state of the proceedings so permits. 304. In my view, that is the case here. 305. As I propose in paragraph 155 above, the judgment under appeal should be set aside to the extent that it upheld the sixth plea of the applicants at first instance, alleging infringement of Niko Tube’s rights of defence, in so far as it concerned the adjustment made to the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko Tube, pursuant to Article 2(10)(i) of the basic regulation. 306. As I have already highlighted, the General Court has, in my view, vitiated its judgment by contradictory reasons, in that, in paragraph 209 of the judgment under appeal, it has, in essence, held that Niko tube had established that that company could have relied on arguments which could have caused the administrative procedure to have a different result than that at which it arrived, whereas previously, in paragraph 188 of that judgment, the General Court had established that the Council had not committed a manifest error of assessment in making the adjustment at issue concerning Niko Tube in the light of those arguments. 307. In that regard, it is sufficient to note that Niko Tube has failed to demonstrate that, had they been communicated in the course of administrative procedure, the arguments presented at first instance would have been capable of resulting in the institutions’ not making the adjustment made pursuant to Article 2(10)(i) of the basic regulation. 308. In those circumstances, it is necessary, in my opinion, to reject the sixth ground of the action in so far as it concerns Niko Tube. 309. Accordingly, and having regard to all the foregoing considerations, I propose that the action should be dismissed in so far as it concerns Niko Tube. VI – Costs 310. Under Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. 311. Under Article 69(2) of those rules, applicable to appeal proceedings pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 69(3) of those rules, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs. 312. In the light of the analysis which I have set out, I consider that, with regard to the Council’s appeal (C‑191/09), which should be partially upheld with respect to Niko Tube but dismissed as to the remainder, a fair assessment of the circumstances of this case might lead to the following allocation of the costs of the two sets of proceedings: order Niko Tube to pay one-third of the costs incurred by the Council in the course of both sets of proceedings and the Council to pay one quarter of the costs incurred by NTRP. 313. In Case C‑200/09, since the Commission has been unsuccessful but Niko Tube and NTRP have also been unsuccessful in their cross-appeal, I suggest that each party should bear its own costs. Since the Commission intervened before the General Court, it should also bear its own costs at first instance. VII – Conclusion 314. Having regard to the foregoing considerations, I propose that the Court should: (1) set aside the judgment of the Court of First Instance of the European Communities of 10 March 2009 in Case T‑249/06 Interpipe Niko Tube and Interpipe NTRP v Council in so far as it annulled, with regard to Interpipe Niko Tube, Article 1 of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine; (2) dismiss the action in so far as it concerns Interpipe Niko Tube; (3) dismiss the main appeal of the Council of European Union as to the remainder; (4) dismiss the main appeal of the European Commission; (5) dismiss the cross-appeal of Interpipe Niko Tube and Interpipe NTRP; (6) order the Council of the European Union to bear two-thirds of its own costs and to pay one quarter of the costs incurred by Interpipe NTRP in both sets of proceedings; (7) order Interpipe Niko Tube to pay one-third of the costs of the Council of the European Union and its own costs in both sets of proceedings; (8) order the European Commission to bear its own costs in both sets of proceedings. 1 – Original language: French. 2 – ECR [2009] II‑383. 3 – OJ 2006 L 175, p. 4. 4 – OJ 1996 L 56, p. 1. 5 – OJ 2004 L 77, p. 12. 6 – See Case C‑171/87 Canon v Council [1992] ECR I‑1237, paragraphs 9 to 13. 7 – Ibid. 8 – See in that regard, Joined Cases 260/85 and 106/86 TEC and Others v Council [1988] ECR 5855, paragraph 30. 9 – C‑178/87 [1992] ECR I‑1577. 10 – Ibid., paragraph 12. 11 – Ibid., paragraph 13. 12 – I have already stated that those three factors are: (1) that the applicants at first instance carried out direct sales of the product concerned in the Community; (2) SPIG, the connected sales company in Ukraine, intervened as a sales agent for sales of Niko Tube and NTRP to SEPCO; and (3) SEPCO’s links with Niko Tube and NTRP were insufficient and did not support the conclusion that it was under their control, or that there was a control common to SEPCO and to Niko Tube and NTRP. 13 – In paragraph 179 of the judgment under appeal the General Court points out that the case‑law also shows that a single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company for distributing its products which it controls economically (see, to that effect, Canon v Council, paragraph 9). Moreover, the capital structure is a relevant indicator of the existence of a single economic entity (see, to that effect, Opinion of Advocate General Lenz in Case C‑75/92 Gao Yao v Council [1994] ECR I‑3141, point 33). It has also been held that a single economic entity may exist where the producer assumes part of the sales functions complementary to those of the distribution company for its products (Case C‑104/90 Matsushita Electric Industrial [1993] ECR I‑4981, paragraph 14). 14 – Case T‑88/98 [2002] ECR II‑4897, paragraph 96. 15 – Although that wording is identical to that used in Article 2(10) of the immediately preceding basic regulation (Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community, OJ 1994 L 349, p. 1), it none the less differs from that of Article 2(9)(b) of the preceding basic regulation (Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1) which placed on the ‘interested party’ the burden of proving that its claim for the application of an adjustment was justified. 16 – See, under the previous anti-dumping regulations, Joined Cases C‑320/86 and C‑188/87 Stanko France v Commission and Council [1990] ECR I‑3013, paragraph 48 and case‑law cited. 17 – See, in particular the distinction between the obligation to state reasons, which is an essential procedural requirement, and the question whether the reasons given are correct, which goes to the substantive legality of the contested measure, Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35. 18 – See, to that effect, Case T‑71/96 Berlingieri Vinzek v Commission [1997] ECRSC I‑A‑339 and ECR II‑921, paragraph 79; Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraphs 57 and 58; judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 59, and Case T‑387/08 Evropaïki Dynamiki v Commission, paragraph 37. 19 – In footnote 15 of its appeal the Council refers to paragraphs 105, 106 and 112 to 119 of its defence at first instance and to paragraphs 49 to 55 of its rejoinder at first instance. 20 – See, in particular, Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723, paragraph 40 and case‑law cited. 21 – Ibid., paragraph 41 and case‑law cited. 22 – See, inter alia, by analogy, in the field of State aid, Case C‑525/04 Spain v Lenzing [2007] ECR I‑9947, paragraph 57, and Case C‑290/07 P Commission v Scott [2010] ECR I‑7763, paragraph 66, and in the field of the application of competition rules, Case C‑441/07 P Commission v Alrosa [2010] ECR I‑5949, paragraph 67. 23 – See, in particular, as regards the application of competition rules, Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 39, Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 145, and, as regards State aid rules, Spain v Lenzing, paragraph 56, and Commission v Scott, paragraph 65. 24 – Tetra Laval v Commission, paragraph 39; Bertelsmann and Sony Corporation of America v Impala, paragraph 145; Spain v Lenzing, paragraph 57, and Commission v Scott, paragraph 65. 25 – See, to that effect, point 103 of my Opinion in Commission v Scott. 26 – Case C‑49/88 Al-Jubail Fertilizer v Council [1991] ECR I‑3187, paragraph 17, and Case C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, paragraph 99. 27 – See, to that effect, Case C‑141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I‑9147, paragraph 94. 28 – Ibid., paragraph 81. 29 – Italics added. 30 – See, in particular, in that regard, Foshan Shunde Yongjian Housewares & Hardware v Council, paragraphs 81 and 107. 31 – With regard to anti-dumping procedures, see Foshan Shunde Yongjian Housewares & Hardware v Council, paragraph 83. 32 – See, inter alia, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Joined Cases C‑258/90 and C‑259/90 Pesquerias De Bermeo and Laida Naviera v Commission [1992] ECR I‑2901, paragraph 26, and Case C‑405/07 P Netherlands v Commission [2008] ECR I‑8301, paragraph 56. 33 – See, in that regard, Case C‑16/90 Nölle [1991] ECR I‑5163, paragraph 13, and Case C‑26/96 Rotexchemie [1997] ECR I‑2817, paragraph 12. See also Case T‑48/96 Acme v Council [1999] ECR II‑3089, paragraph 39, and Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243, paragraph 64. 34 – See in that regard, in particular, Netherlands v Commission, paragraph 44, and Case C‑535/06 P Moser Baer India v Council [2009] ECR I‑7051, paragraph 34. 35 – According to case-law, the appraisal of the facts does not, save where the clear sense of the evidence has been distorted by the General Court, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal: see, in particular, Foshan Shunde Yongjian Housewares & Hardware v Council, paragraph 56 and case-law cited. 36 – See, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 54; Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 108, and Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 67. 37 – See, in particular, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 148, and the orders in Case C‑503/07 P Saint-Gobain Glass Deutschland v Commission [2008] ECR I‑2217, paragraph 62, and Case C‑498/09 P Thomson Sales Europe v Commission, paragraph 87. 38 – Article 6(2) of the basic regulation provides that parties receiving questionnaires sent by the Commission in the context of an anti-dumping investigation are to be given at least 30 days to reply. An extension of that period may be granted under the circumstances provided for in that provision. 39 – The injury margin is the level of injury suffered by the EU industry expressed as a percentage of the CIF (cost, insurance and freight) price of the exports of the product concerned (undercutting price) calculated, as a general rule, on the basis of the difference between the weighted average sales price of the EU producers and the weighted sales price of dumped exports to the European Union. See, in that regard, recital 233 in the preamble to the contested regulation. 40 – See, by analogy, Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraphs 47 and 48. See also, in that regard, Article 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1. Moreover, Article 41 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389) provides that the right to good administration includes ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’. 41 – It should be noted that the judgment under appeal wrongly refers to Tubos Reunidos, the sampled EU producer affiliated to Productos Tubulares. That clerical error was not raised by the parties to the appeal and is of no consequence.