Information;Judgment — ECLI:EU:T:2024:617
Date: 2024-09-11
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. 142 The wording of Article 19(3) of the basic regulation therefore gives the Commission only the possibility of disregarding confidential information of which no non-confidential summary is available. The aim of Article 19 of the basic regulation is to protect not only the business secrets but also the defence rights of the other parties to the anti-dumping proceeding. That, as the case-law shows, implies that, in an anti-dumping proceeding, irregularities in the Commission’s communication of non-confidential summaries cannot constitute an infringement of procedural rights justifying annulment of the regulation fixing the anti-dumping duties unless the person concerned did not have sufficient knowledge of the essential content of the document or documents in question and was therefore not able validly to express his or her point of view on their accuracy or relevance (see judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraphs 130 and 131 and the case-law cited). 143 Therefore, the Commission’s use of information of which a non-confidential summary has been provided may be relied on, as a ground for annulment of an anti-dumping measure, by parties to an anti-dumping proceeding, if they are able to demonstrate that the use of that information constituted an infringement of their rights of defence, in the sense that they were not able properly to express their point of view on the accuracy or relevance of that information and that it cannot be entirely ruled out that, had it not been for the irregularity, the outcome of the administrative procedure might have been different. 144 In the present case, the Court notes that, at the stage of the provisional regulation, the Commission stated that 13 users had made themselves known, that 9 of them had submitted comments or replies to the questionnaire and that the Commission had initiated a procedure for supplementary information vis-à-vis most of the users who had replied to the questionnaire, since they had not, with the exception of one company, provided versions which could be consulted by the interested parties. In the contested regulation, it stated that it had carried out an assessment of the Union interest, including the interest of users, ‘based on available information, including importers and users questionnaires as well as information provided by interested parties’. 145 The Commission therefore requested, in accordance with Article 21 of the basic regulation, the comments of all the stakeholders likely to be concerned by anti-dumping measures. It relied on those comments in order to state, in recital 194 of the provisional regulation and in recital 221 of the contested regulation, that ‘the imposition of measures [would] likely have a different impact across users, depending on the share of birch plywood costs in the total costs for that sector and the ability to pass on costs to downstream consumers’. 146 As regards the impact assessment report, in recitals 194 and 195 of the provisional regulation, the Commission stated that ‘the complainant submitted an independent study analysing the expected impact of measures on users, based on theoretical duties of 20% to 30%’. It was apparent from those documents that ‘the main sectors using birch plywood in the European Union are, by consumption: construction (39%), transport (27%), furniture (10%) and packaging (8%)’, that, ‘based on the available information, for the sectors capturing the majority of the birch plywood consumption, the impact of the measures was provisionally assessed to be limited or negligible’, that ‘the sectors where the duties may have the largest impact are packaging and parquet producers’, that ‘however, even in these sectors, the impact of measures is limited’, that ‘for the packaging sector, the estimated impact is around 2% to 4% in the cost structure, which can be expected to be passed on to customers’, and that, ‘as far as the parquet and flooring sector is concerned, birch plywood has various substitutes, like other types of wood and alternative materials, which is another reason why the impact of possibly slightly higher cost of birch plywood is expected to be limited’. In the light of those explanations, the Commission concluded, in recital 196 of the provisional regulation and in recital 221 of the contested regulation, that ‘any negative impact of measures on users is expected not to outweigh the positive effect of measures on Union producers’. 147 The observations submitted by the Woodstock Consortium, which the Commission states are the public version, to which the applicant does not deny having had access, provide a more detailed summary of the main conclusions of the impact assessment, relating to the construction, transport, furniture and packaging sectors. 148 The applicant did not request access to the confidential version of the impact assessment report. It merely submits that the public version of that report was inadequate and that the findings in the contested regulation might have been different if the Commission had provided an appropriate public version of the report and if it had given interested parties the opportunity to submit their comments in that regard. Those assertions do not satisfy the need to demonstrate the error of assessment which allegedly vitiated the Commission’s reasoning, having taken account of confidential data, since the applicant has not in any way set out the reasons why the public version of that report was inadequate; nor has the applicant set out the facts to be proved. 149 Accordingly, the applicant’s complaints alleging infringement of Article 21 of the basic regulation and manifest errors of assessment must be rejected, as must those alleging infringement of the rights of the defence. 150 It follows from the foregoing that the third plea must be rejected as unfounded. The form of the anti-dumping measure 151 Article 14(1) of the basic regulation provides, inter alia, that provisional or definitive anti-dumping duties are to be imposed by regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties. 152 That provision leaves the EU institutions a wide discretion to determine, in each case, not only the form and rate of those duties, but also the other criteria which the Member States must use in collecting the duties in question (see, by analogy, judgment of 27 March 1990, Cartorobica, C‑189/88, EU:C:1990:137, paragraph 25, and of 28 September 1995, Ferchimex v Council, T‑164/94, EU:T:1995:173, paragraph 141). 153 It follows that review by the EU judicature relates to whether the measure adopted by the Commission, in the present case a definitive anti-dumping duty of 14.85% in the form of an ad valorem duty, is manifestly inappropriate having regard to the objective pursued. 154 In recitals 237 and 238 of the contested regulation, the Commission stated that, following provisional disclosure, some parties claimed that, should measures be imposed, they should be set in the form of a MIP since it would balance interest of different parties, would prevent a shortage of the product concerned, and would safeguard the competition in the market. Similarly, it was claimed that the MIP should take into account the price difference between square and rectangular-shaped plywood. In response, the Commission considered that, as the product concerned was produced and sold in a wide variety of product types, the imposition of measures in the form of a MIP was neither practicable nor would it accurately reflect the level of dumping. 155 Before the Court, the applicant argues that a variable duty, based on an ad valorem duty capped by a MIP, would contribute to a better balance between the interests of Union producers, importers and users. 156 It is true that it has already been held that it is generally acknowledged that a variable duty is more favourable to the exporters and importers in question than a fixed duty or an ad valorem duty. In certain cases, a variable duty enables payment of anti-dumping duties to be avoided altogether (see judgment of 29 September 2000, International Potash Company v Council, T‑87/98, EU:T:2000:221, paragraph 41 and the case-law cited). 157 However, before imposing anti-dumping duties, the EU institutions balance the various interests at stake. They take into account not only the interests of the importers and exporters being investigated, but also the interests of the Union industry, and, as is apparent from Article 21 of the basic regulation, the interests of users and consumers. The fact that various interests are to be balanced is conveyed by the wording of Article 9(4) of that regulation, which provides that the amount of the anti-dumping duty is not to exceed the margin of dumping established and should be less than that margin if such lesser duty would be adequate to remove the injury to the Union industry (see, to that effect, judgment of 29 September 2000, International Potash Company v Council, T‑87/98, EU:T:2000:221, paragraph 42). 158 The applicant has not in any way explained how the interests of the various stakeholders on the market in question differ to the point of requiring the Commission to apply an advanced form of variable duty combining a MIP and an ad valorem or fixed duty. The applicant’s line of argument is based on the premiss that the market conditions at issue endanger many interested parties in the European Union and the risk of a shortage of products, which require an appropriate strategic response; that is not substantiated and has not been demonstrated, as follows from the analysis carried out above. 159 Moreover, the applicant has not claimed that the duty in question exceeded the dumping margin or that that duty was, at the time of its adoption, higher than was necessary to remove the injury, within the meaning of Article 9(4) of the basic regulation. 160 Therefore, the applicant has not demonstrated to the requisite legal standard that the Commission made a manifest error of assessment in imposing the measure at issue in its current form which would be contrary to the Union interest. 161 The fourth plea must therefore be rejected as unfounded and, consequently, the action must be dismissed in its entirety. Costs 162 Under Article 134(1) 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. 163 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and the interveners. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Vyatsky Plywood Mill OOO to pay the costs. Costeira Kancheva Öberg Delivered in open court in Luxembourg on 11 September 2024. V. Di Bucci D. Spielmann Registrar President * Language of the case: English.