Order — ECLI:EU:T:2009:154
Date: 2009-05-12
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Intervention;Limitation periods
Procedure: Action for annulment - inadmissible;Application to intervene - successful

summary form the information on the basis of which the Commission found that initiation of the anti-dumping proceeding was necessary. The applicants argue that, without those summaries, they could not respond to the allegations made by Euroalliages in the complaint. 219 More specifically, as regards the information about the calculation of apparent consumption, the applicants explain that the complaint contained two divergent sets of data on consumption (imports, exports, sales, stocks and production), the divergence resulting from different adjustments. Because of this divergence, the applicants requested details and a reconciliation of calculations for the two sets of data. They received nothing from the institutions. Also, in response to the Council’s argument that the formula used for conversion of different kinds of ferro-silicon to 75% grade ferro-silicon had been disclosed, the applicants point out, in the reply, that they were not asking for the formula but for a justification for the use of such a formula in a situation where no formula was needed. 220 As regards the information concerning the basis for the dumping margin calculation, the applicants state that the non-confidential version of the complaint reflects in Annex C bis all the details on the dumping provided to the applicants. However, those pages are in fact blank, which means that the applicants cannot verify whether the complaint contains any – let alone, sufficient – evidence of dumping. 221 As regards the information on the production costs for the companies supporting the complaint, the applicants state that, in the course of the administrative proceeding, they made a comparison of the cost of production developments, as referred to in the complaint, for the whole of the Community industry, with the data for individual Community producers contained in the responses to the anti-dumping questionnaire. The comparison revealed significant differences, which prompted the applicants to request the Commission to disclose non-confidential data of individual Community producers, as this data featured in the complaint. The Commission refused disclosure and offered no justification. 222 Secondly, the applicants state that no ‘meaningful non-confidential version’ of the information provided by the individual companies supporting Euroalliages’ complaint was added to the file of the proceeding. They also point out that, although some information was ultimately provided, its credibility is undermined by the lack of consistency between the data contained in the various documents submitted by those companies. 223 The Council, supported by the Commission, disputes the applicants’ arguments. Findings of the Court 224 According to the case-law to which reference was made in paragraph 52 above, pursuant to the principle of respect for the rights of the defence, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury. In that regard, the institutions must provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information (Al-Jubail Fertilizer v Council, paragraph 52 above, paragraph 17). 225 With regard to business secrets, it should also be noted that Article 19(1) of the basic regulation (now Article 19(1) of Regulation No 1225/2009) provides that any information which is by nature confidential or which is provided on a confidential basis by parties to an investigation is, if good cause is shown, to be treated as such by the authorities. Moreover, Article 19(2) of the basic regulation (now Article 19(2) of Regulation No 1225/2009) provides that interested parties providing confidential information are required to furnish non-confidential summaries thereof, save in exceptional circumstances where such information is not susceptible of summary. That provision also states that those summaries must be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. 226 It is in the light of the above considerations that the Court must determine whether the Council did in fact infringe the applicants’ rights of defence by not responding to their requests for inclusion in the non-confidential file of additional non-confidential information. 227 In the first place, the applicants claim that in their comments on the injury, sent to the Commission on 15 January 2007, they requested that non-confidential summaries of the information contained in the complaint regarding the calculation of consumption, the basis for the dumping margin calculation and the costs of production for the companies supporting the complaint should be added to the non-confidential file of the proceeding. As a result of the absence of that information from the non-confidential file, the applicants were unable to respond to the allegations made in the complaint. 228 First of all, regarding the calculation of consumption, it should be noted that the applicants asked, in the comments on the injury, to be provided with three types of data: (i) justification for the formula used for the overall conversion of import data to 75% grade ferro-silicon; (ii) clarification as to how that conversion was calculated for domestic shipments; and (iii) the estimated production for two Community producers, SKW Trostberg AG and TDR – Metalurgija d.d., referred to in the table relating to apparent consumption given in the non-confidential version of the complaint, and how the conversion was calculated for those estimates. 229 It should be noted that the formula that was used for conversion of different kinds of ferro-silicon to 75% grade ferro-silicon is given in the non-confidential version of the complaint. Moreover, justification for the use of that formula was given to the applicants by the Commission in the supplementary provisional disclosure document, sent to the applicants on 10 September 2007, from which it is apparent that the conversion formula used was needed in order to be able to compare the data appropriately. 230 It should also be pointed out, with regard to domestic shipments, that it is apparent from the non-confidential version of the complaint that the figures for such shipments were based on actual shipments for which the data had been supplied by the various complainants, based on 75% grade ferro-silicon, and on estimates concerning SKW and TDR. It is also apparent from that version of the complaint that the data for actual shipments were regarded as confidential. Since the figures given in the non-confidential version of the complaint are the total figures for domestic shipments, it must be held that the institutions acted in compliance with Article 19(1) and (2) of the basic regulation. 231 Lastly, it should be noted, with regard to the estimated production of SKW and TDR, that the Commission explained, in the supplementary provisional disclosure document, that this was based on the complainants’ market knowledge and was therefore regarded as confidential. As mentioned in paragraph 230 above, since the figures given in the non-confidential version of the complaint are the total figures for domestic shipments, the institutions acted in compliance with Article 19(1) and (2) of the basic regulation. 232 In the light of the foregoing, it must be held that the applicants are wrong to maintain that the information about the calculation of consumption which they had requested in non-confidential form was not disclosed to them. It was either added to the non-confidential file or given in the supplementary provisional disclosure document. Accordingly, as regards that aspect of the complaint, the applicants have no grounds for pleading infringement of their rights of defence. 233 Also, as regards the basis for the dumping margin calculation, it must be stated that the non-confidential version of the complaint contains a brief but clear explanation of the way in which the normal value and the export price were calculated. Moreover, the supplementary provisional disclosure document provides detailed explanations of the way in which the normal value was calculated. In particular, the Commission made reference in that document to the prices used as a basis for calculating normal value which are given in Annexes C.1, C.2, C.3 and C.4 to the non-confidential version of the complaint. Accordingly, it must be held that the applicants had sufficient evidence concerning the basis for calculating the dumping margin for them to be able to exercise their rights of defence and that the fact that the pages relating to Annex C bis, in the non-confidential version of the complaint, were blank was irrelevant. 234 Lastly, as regards the production costs of the companies supporting the complaint, it must be observed that the production costs of the complainants taken together appear in Annex 5 to the non-confidential version of the complaint. Since the data on the actual production costs of each complainant are undeniably confidential data and the figures given in the non-confidential version of the complaint are the total figures for the complainants’ production costs, the institutions acted in compliance with Article 19(1) and (2) of the basic regulation. It follows that the institutions gave the applicants information relevant to the defence of their interests, whilst not disclosing business secrets. Accordingly, as regards the production costs of the companies supporting the complaint, the applicants again have no grounds for pleading infringement of their rights of defence. 235 Secondly, the applicants criticise the Council for not adding to the file of the proceeding a ‘meaningful non-confidential version’ of the information provided by the individual companies supporting Euroalliages’ complaint. They also state that, although some information was ultimately provided, its credibility is undermined by the lack of consistency between the data contained in the various documents submitted by those companies. 236 In that regard, it should be pointed out that those allegations lack detail and that they must be declared inadmissible under the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute and Article 44(1)(c) and (d) of the Rules of Procedure of the General Court, as interpreted by the case-law cited in paragraph 60 above. The applicants give no detail as to the non-confidential versions they regard as being insufficiently meaningful. In particular, they do not explain whether these are the non-confidential versions of documents produced in support of the complaint or of documents produced subsequently. Moreover, they give no detail as to the data they consider to be inconsistent. This complaint must therefore be rejected as unfounded. 237 It follows that the fifth plea must be rejected as being in part unfounded and in part inadmissible. 238 In the light of all the foregoing considerations, the action must be dismissed in its entirety. 239 It is also necessary to reject the applicants’ application for the adoption of measures of organisation of procedure and measures of inquiry. First, the applicants ask the Court to order the production of information to support recital 101 to the contested regulation concerning the impact, for the determination of injury, of the data specifically relating to Huta Laziska. Since it was established, in paragraphs 205 to 209 above, that proper reasons had been stated for that recital, it would not be appropriate to accede to the applicants’ request. Secondly, the applicants ask the Court to order the production of information regarding the calculation of consumption, the basis for the dumping margin calculation and the costs of production for each of the companies supporting the complaint, in order to establish whether the investigation was initiated on the basis of sufficient evidence of dumping and injury. However, it was established in paragraphs 224 to 234 above that the applicants had received information relevant to the defence of their interests relating to each of those three factors. It would therefore not be appropriate to accede to the applicants’ request in that regard either. Costs 240 Under Article 87(2) of the Rules of Procedure, 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 pay the costs, as applied for by the Council. 241 In addition, under the first subparagraph of Article 87(4) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Chelyabinsk Electrometallurgical Integrated Plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF) to bear their own costs as well as those incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs. Pelikánová Jürimäe Soldevila Fragoso Delivered in open court in Luxembourg on 25 October 2011. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought by the parties Law 1. First plea: use of a notional profit margin for the construction of the export price The first part of the first plea: error of law in the interpretation of Article 2(9) of the basic regulation Arguments of the parties Findings of the Court The second part of the first plea: breach of the obligation to state reasons Arguments of the parties Findings of the Court The third part of the first plea: infringement of the rights of defence Arguments of the parties Findings of the Court The fourth part of the first plea: breach of the principle of sound administration Arguments of the parties Findings of the Court 2. The second plea, concerning the price undertaking offered by Silmak The first part of the second plea: breach of the principle of equal treatment Arguments of the parties Findings of the Court The second part of the second plea: infringement of Article 6(7), Article 8(4) and Article 20(1) of the basic regulation Arguments of the parties Findings of the Court The third part of the second plea: breach of the obligation to state reasons Arguments of the parties Findings of the Court The fourth part of the second plea: infringement of the applicants’ rights of defence Arguments of the parties Findings of the Court 3. The third plea, concerning the injury analysis Arguments of the parties Findings of the Court 4. The fourth plea, concerning the analysis of the causal link between the dumped imports and the injury The first part of the fourth plea: the impact on the Community industry of the withdrawal from the Community market of third country producers, and of production switches and reductions made by a number of Community producers Arguments of the parties Findings of the Court – The complaint relating to market shares vacated by third country producers and Community producers – The complaint relating to the magnitude and cause of voluntary production cuts made by the Community industry – The complaint alleging infringement of the applicants’ rights of defence – The complaint alleging breach of the duty to exercise due care and of the obligation to state reasons The second part of the fourth plea, relating to the causes of the injury suffered by individual members of the Community industry Arguments of the parties Findings of the Court The third part of the fourth plea, relating to the decrease in production in the Community industry Arguments of the parties Findings of the Court The fourth part of the fourth plea, relating to the impact of the increased costs borne by the Community industry Arguments of the parties Findings of the Court – The complaint alleging manifest errors of assessment – The complaint alleging breach of the principle of sound administration and of the obligation to state reasons The fifth part of the fourth plea: breach of the obligation to state reasons in respect of the analysis of the injury suffered by Huta Laziska Arguments of the parties Findings of the Court The sixth part of the fourth plea: breach of the obligation to state reasons in respect of the Council’s conclusions regarding the effect of third country imports Arguments of the parties Findings of the Court 5. The fifth plea: infringement of the applicants’ rights of defence as regards the disclosure of data relating to the initiation of the anti-dumping proceeding Arguments of the parties Findings of the Court Costs * Language of the case: English.