Judgment — ECLI:EU:T:2010:67
Date: 2010-03-04
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

Summary of the Judgment 1. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Sampling (Council Regulation No 384/96, Arts 9(6), and 17(1), (2) and (3) 2. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from countries not having a market economy as referred to in Article 2(7)(b) of Regulation No 384/96 – Sampling (Council Regulation No 384/96, Arts 2(7)(b), 9(6), and 17(1) and (3)) 3. Common commercial policy – Protection against dumping – Investigation – Initiation of an investigation by means of a complaint made by or on behalf of the Community industry – Conditions (Council Regulation No 384/96, Arts 4(1), 5(1), (2) and (4), and 18(1)) 4. Common commercial policy – Protection against dumping – Investigation – Definition of the product concerned – Factors which may be taken into account (Council Regulation No 384/96, Arts 1(4), 2 and 3) 5. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Sampling (Council Regulation No 384/96, Art. 17(1)) 6. Common commercial policy – Protection against dumping – Investigation – Cooperation by a company which has committed fraud at national level (Council Regulation No 384/96) 7. Acts of the institutions – Statement of reasons – Obligation – Scope – Regulations imposing anti-dumping duties (Art. 253 EC) 8. Common commercial policy – Protection against dumping – Injury – Period to be taken into consideration (Council Regulation No 384/96, Art. 3(2)) 9. Common commercial policy – Protection against dumping – Injury – Profit margin used to calculate the indicative price (Council Regulation No 384/96, Art. 3) 1. According to the wording of Article 17(1) and (3) of the basic anti-dumping regulation No 384/96, the use of sampling as a technique in order to deal with a large number of complainants, exporters, importers, types of product or transactions constitutes a limitation of the investigation. That assessment is borne out by Article 9(6) of the basic regulation under which producers who are not part of the sample are not included in the investigation. However, the basic regulation provides that where there is such a limitation the Community institutions must comply with two obligations. First, the sample must be representative within the meaning of Article 17(1) and (2) of the basic regulation. Secondly, Article 9(6) of that regulation provides that the dumping margin established for producers who are not included in the sample is not to exceed the weighted average margin of dumping established for the parties in the sample. (see paras 72-73) 2. Where sampling is used as provided for by Article 17 of the basic anti-dumping regulation No 384/96, producers who are not included in the sample may request that an individual dumping margin be calculated – which presupposes the acceptance of a claim for market economy treatment or individual treatment where countries concerned by Article 2(7)(b) of the basic regulation are involved – only on the basis of Article 17(3) of that regulation. However, Article 17(3) gives the Commission the power to assess whether, having regard to the number of such claims, examining them would be unduly burdensome and would prevent completion of the investigation in good time. It follows that the basic anti-dumping regulation does not give traders who are not included in the sample an unconditional right to the calculation of an individual dumping margin. The acceptance of such a claim depends on the Commission’s decision as to the application of Article 17(3) of the basic regulation. Furthermore, as the grant of such market economy treatment or individual treatment serves, pursuant to Article 2(7)(b) of that regulation, only to establish the method for calculating normal value with a view to the calculation of individual dumping margins, the Commission is not required to examine claims from traders who are not included in the sample, where it has concluded, in applying Article 17(3) of the basic regulation, that the calculation of such margins would be unduly burdensome and would prevent it from completing the investigation in good time. The application of those rules does not constitute a breach of the principle of equal treatment in respect of the companies included in the sample and those who are not as those two groups of companies are in different situations since the Commission must necessarily calculate an individual margin of dumping for the former, and that presupposes the examination and acceptance of a claim for market economy treatment or individual treatment, whereas it is not obliged to establish an individual margin for the latter. Furthermore, the principle of equal treatment in respect of the companies which were not included in the sample does not require the Commission to decide on all the claims which were submitted to it, with the result that the producers or exporters not included in the sample, but to whom market economy treatment or individual treatment is granted, may have applied to them the average dumping margin of the sampled companies to which such market economy treatment or individual treatment has been granted. If the number of claims is so large that examining them would prevent the Community institutions from completing the investigation in good time, the institutions are not required, under Article 17(3) of the basic regulation, to decide on all of those claims, even for the sole purpose of distinguishing, among the non-sampled companies, between those which may or may not be entitled to market economy treatment or individual treatment, with a view to applying to them the average dumping margin of the sampled companies to which market economy treatment or individual treatment has been granted, but without calculating an individual dumping margin. (see paras 76-78, 81-83) 3. It is apparent from Article 5(1) and (4) of the basic anti-dumping regulation No 384/96 that, except where Article 5(6) applies, an anti-dumping investigation is initiated properly if a complaint has been made by or on behalf of the Community industry. A complaint is to be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers representing, as regards the like product, more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint. Furthermore, the producers expressly supporting the complaint must also represent at least 25% of total production of the like product produced by the Community industry. As regards the term ‘support’, Article 5(2) of the basic regulation provides that a complaint must include evidence of dumping, injury and a causal link between the two. A complaint must contain in that regard a certain amount of information which may reasonably be available to the complainant. Support for a complaint made by or on behalf of the Community industry thus means that the complainant or complainants and the persons on behalf of which the complaint was made must, first, supply the evidence which the Commission requests with a view to verifying that the necessary conditions for the imposition of an anti-dumping duty have been satisfied and, secondly, accept the imposition of any checks which the Commission may make in order to examine whether the information supplied is accurate. Therefore, where a Community producer states that it does not accept verification of the data which it provides in support of a complaint made by it or on its behalf, it must, first, be regarded as a non-cooperative producer for the purpose of Article 18(1) of the basic regulation and, secondly, be excluded from the group of producers expressing their support for the complaint in terms of Article 4(1) and Article 5(4) of the basic regulation. (see paras 103-106) 4. The purpose of the definition of the product concerned in an anti-dumping investigation is to aid in drawing up the list of products which will, if necessary, be subject to the imposition of anti-dumping duties. For the purposes of that process, the institutions may take account of a number of factors, such as the physical, technical and chemical characteristics of the products, their use, interchangeability, consumer perception, distribution channels, manufacturing process, costs of production, quality etc. Therefore, a claim that a particular product should be excluded from the definition of the product concerned must be based on arguments which show either that the institutions erred in their assessment with regard to the factors they held to be relevant, or that the application of other more relevant factors necessitated the exclusion of that product from the definition of the product concerned. (see paras 131-132) 5. Under Article 17(1) of the basic anti-dumping regulation No 384/96, sampling is the limitation of the investigation to a reasonable number of parties, products or transactions by using samples which are statistically valid, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available. That provision gives the Commission the power to choose, from among the companies which have volunteered to participate in the sample and have provided the necessary information for that purpose, those which will be included. In the light of the discretion which that provision thus grants to the Commission, review by the Community judicature of the choice made in that regard relates to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of those facts or a misuse of power. (see paras 146-147) 6. The fact that a company has committed fraud at national level does not necessarily imply that it is not cooperating in an anti-dumping investigation carried out by the Community institutions and that it is providing incorrect information in that connection. Even if the company concerned has committed fraud at national level, that does not in itself lead to the conclusion that the data which it provided in an anti-dumping investigation are not reliable in circumstances where the data are unconnected with those frauds. (see para. 168) 7. The statement of the reasons on which regulations imposing anti-dumping duties are based is not required to specify the often very numerous and complex matters of fact and law dealt with in the regulations, provided that they fall within the general scheme of the body of measures of which they form part. In that regard, it is sufficient for the reasoning of the Community institutions in the regulations to appear clearly and unequivocally. Furthermore, the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned; it is sufficient to set out the facts and the legal considerations having decisive importance in the context of the decision (see paras 180-181) 8. The adoption of anti-dumping duties is not a penalty for earlier behaviour but a protective and preventive measure against unfair competition resulting from dumping practices. It is therefore necessary, in order to be able to determine the anti-dumping duties appropriate for protecting the Community industry against dumping. Where the Community institutions find that imports of a product which has until then been subject to quantitative restrictions increase after those restrictions have lapsed, they may take that increase into account for the purposes of their assessment of the injury suffered by the Community industry. (see paras 198-199) 9. Nothing requires the institutions to rely solely on data relating to the product concerned in order to assess the profit margin that the Community industry would have attained in the absence of injurious dumping. On the contrary, they may take into account related products, which are broadly similar to the product concerned. Even though those products are not included in the definition of the product concerned, the profit margin that the Community industry has attained for those products may be regarded as a valid indication of the profit margin that Community producers would have attained on sales of the product concerned in the absence of dumped imports. (see para. 208)