Judgment — ECLI:EU:T:2012:532
Date: 2012-10-10
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary of the pleas in law on which the application is based and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a submission, or an argument, which may be regarded as amplifying a submission made previously, whether directly or by implication, in the application initiating proceedings, and which is closely connected therewith, will be declared admissible. 140 It must be stated that that criticism, although formally submitted in the context of this plea, in actual fact constitutes a separate plea in law. Moreover, it cannot be held that that plea is based on matters which have come to light in the course of the procedure. 141 Accordingly, the criticism concerning the fact that the MET decision was taken after the expiry of the three-month time-limit must be rejected as inadmissible. 142 Second, regarding the alleged breach by the institutions of their duty to examine, carefully and impartially, all the relevant aspects of the present case, it is true that it is apparent from settled case-law that, where the institutions have a wide discretion, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see HEG and Graphite India v Council, paragraph 62 above, paragraph 68 and the case-law cited). 143 However, the fact that the burden of proof lies with the exporting producer wishing to claim MET should also be taken into consideration. Article 2(7)(c) of the basic regulation states that the claim ‘must … contain sufficient evidence’. Accordingly, there is no obligation on the institutions to prove that the exporting producer does not satisfy the criteria laid down for the receipt of that treatment. On the contrary, it is for them to assess whether the evidence supplied by the exporting producer in question is sufficient to show that the criteria listed in Article 2(7)(c) of the basic regulation are fulfilled and for the judicature to examine whether the institution’s assessment is vitiated by a manifest error (see Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, paragraph 118 above, paragraph 83 and the case-law cited). It is in that context that it must be ascertained whether the institutions breached their duty under the case-law cited in paragraph 142 above. 144 It must be stated that the applicants do not refer in their argument to precise evidence which had been disclosed to the institutions and ought to have led them to conclude that the criteria in Article 2(7)(c) had been fulfilled. 145 Under those circumstances, since they were not denied MET on the basis of evidence which they put forward in the course of the procedure, and they have not been able to establish which evidence was submitted by the exporting producers in the course of the procedure, the applicants cannot legitimately invoke a breach by the institutions of their duty to examine carefully and impartially all relevant aspects of the present case. 146 For the same reason, the applicants’ criticisms based on an alleged lack of objectivity in the evidence admitted by the institutions for the purposes of finding that there were subsidies in the Chinese industry and on a failure to examine other factors likely to explain the price differences, such as more onerous labour law and environmental requirements, must also be rejected. 147 In addition, it should be noted that, in view of the reasons set out in, inter alia, recitals 63, 66 and 67 of the contested regulation, the institutions were able to conclude, without making a manifest error of assessment, that the criterion for granting MET set out in the first indent of Article 2(7)(c), requiring that ‘costs of major inputs substantially reflect market values’, had not been met in the present case. In that regard, it should be borne in mind that the institutions observed that the price of steel wire rod was lower than prices charged on other markets, even though its main component (iron ore) was for the most part imported into China and was therefore charged at international market prices. They also highlighted the existence of significant intervention by China in favour of steel wire rod producers – which could explain that abnormally low price. 148 Third, regarding the criticism concerning the conflict between the approach favoured in the present regulation and the approach favoured by the Commission in Regulation No 112/2009, it is sufficient to point out that that criticism is based on a mistaken premiss. The applicants submit, in essence, that it follows from that latter regulation that the Commission has acknowledged that a Chinese exporting producer of steel wire rod meets the criteria set out in the first indent of Article 2(7)(c) of the basic regulation. However, a reading of recitals 24 to 31 of that regulation shows that the Commission did not analyse compliance with the first indent of Article 2(7)(c) of the basic regulation, but relied entirely on the fact that the exporting producer in question was not able to prove that he met other criteria necessary for obtaining MET to dismiss his claim. 149 In the light of all of the foregoing, this plea must be rejected. Seventh plea in law, alleging infringement of Regulation No 2026/97 150 The applicants submit that the institutions have infringed the provisions of Regulation No 2026/97, read in the light of the WTO rules. In essence, they claim that, by denying the applicants MET in the context of an anti-dumping procedure, the institutions, first, found that subsidies had been granted, without following the procedure laid down in Regulation No 2026/97 and, second, countervailed those subsidies using an illegal measure, namely MET rejection. 151 The Council disputes the merits of that plea. 152 As has been pointed out in paragraphs 117 to 120 above, the institutions followed a correct interpretation of the criterion requiring that costs of major inputs substantially reflect market values, set out in the first indent of Article 2(7)(c) of the basic regulation, by concluding that that criterion referred to a market in which the determination of prices was not distorted by State interference. In that context, they observed that several sources and studies pointed to State interference in the Chinese steel sector and that some of the largest Chinese producers of steel wire rod had received various types of subsidies (recital 67). 153 However, it must be stated that the present anti-dumping procedure related to ‘the product concerned’ as defined in recitals 40 to 47 of the contested regulation and not the major input of the companies claiming MET. It was only in the context of examining the MET claims that the institutions evoked the existence of subsidies capable of explaining the abnormally low prices of that major input in China. Contrary to what the applicants claim, the institutions were in no way obliged to initiate and successfully bring to conclusion a procedure laid down in Regulation No 2026/97 in respect of products other than the product concerned and situated in the upstream market. 154 In any event, following the applicants’ line of argument would amount to finding that the institutions, in similar circumstances to those in the present case, may refuse to grant MET only after having initiated an anti-subsidy procedure pursuant to Regulation No 2026/97. Such an interpretation would render the criterion set out in the first indent of Article 2(7)(c) of the basic regulation largely ineffective. 155 Therefore, this plea must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 156 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Council and EIFI in accordance with the form of order sought by those parties. 157 The Commission shall bear its own costs, in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Gem-Year Industrial Co. Ltd and Jinn-Well Auto-Parts (Zhejiang) Co. Ltd to bear their own costs and to pay those of the Council of the European Union and of the European Industrial Fasteners Institute AISBL; 3. Orders the European Commission to bear its own costs. Dittrich Wiszniewska-Białecka Prek Delivered in open court in Luxembourg on 10 October 2012. [Signatures] ** Language of the case: English.