Judgment;Abstract — ECLI:EU:T:2024:113
Date: 2024-02-21
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded;Action for annulment - successful

summary of that information or, at the very least, a statement of reasons as to why such summarisation is not possible. Furthermore, according to the applicants, it is irrelevant that the allegedly confidential information relates to a single EU producer. 302 The applicants submit that, for the present plea to be well founded, they do not have to show that the outcome of the investigation could have been different; they only need to show that the possibility of a different outcome cannot be totally ruled out. However, without having the information at issue, they could not assess whether there was an absence of price undercutting or underselling for certain PCNs, nor could they assess for which PCNs the Union industry had made most of its sales. That information was therefore essential in order to be able to review the correctness of the undercutting determination, for which it might be appropriate to look at the market shares of the various PCNs in question, and to examine whether the imports had indeed caused injury to that industry. 303 The Commission, supported by Kuraray and by Sekisui, disputes the applicants’ arguments. 304 For the purposes of examining the present plea, it is appropriate to recall the wording of the relevant provisions. 305 Article 19 of the basic regulation provides as follows: ‘1. Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information) or which is provided on a confidential basis by parties to an investigation shall, if good cause is shown, be treated as such by the authorities. 2. Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not capable of being summarised. In such exceptional circumstances, a statement of the reasons why such summarisation is not possible shall be provided. … 4. This Article shall not preclude the disclosure of general information by the Union authorities, and, in particular, of the reasons on which decisions taken pursuant to this Regulation are based, or disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interests of the parties concerned that their business secrets not be divulged. 5. The Commission and Member States, including the officials of either, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from that supplier. …’ 306 Article 20 of the basic regulation provides as follows: ‘1. The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed … 2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures. …’ 307 Article 6(7) of the basic regulation provides as follows: ‘7. The complainants, importers and exporters … may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and is used in the investigation. …’ 308 By those provisions, the basic regulation is pursuing two objectives: on the one hand, to allow the interested parties effectively to defend their interests and, on the other hand, to preserve the confidentiality of the information collected in the course of the investigation (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 96; see also, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142 and the case-law cited). 309 As regards the first objective referred to in paragraph 308 above, it should be recalled that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. Respect for that principle is of crucial importance in anti-dumping investigations (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 139 and the case-law cited). 310 In accordance with that principle, 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 (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 140 and the case-law cited). 311 As regards the second objective referred to in paragraph 308 above, it must be recalled that the protection of business secrets is a general principle of EU law. The maintenance of fair competition is an important public interest, the safeguarding of which can justify a refusal to disclose information which reveals business secrets (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 165 and the case-law cited). 312 In order to reconcile the two objectives in question, in performing their duty to provide information, the EU institutions must act with all due diligence by seeking to 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 (see, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 141). 313 The need to reconcile those objectives also follows from the fact that, according to the case-law, Article 19 of the basic regulation is intended to protect not only the business secrets but also the defence rights of the other parties to the anti-dumping proceeding (see judgment of 15 October 2020, Zhejiang Jiuli Hi-Tech Metals v Commission, T‑307/18, not published, EU:T:2020:487, paragraph 82 and the case-law cited). 314 The protection of information covered by business secrecy does not require the exclusion, on principle, of all disclosure to interested parties of the information used during an anti-dumping investigation, irrespective of the circumstances. In particular, it is necessary to consider the particular situation of the interested party with regard to that information and, in particular, the position that that interested party occupies on the market under consideration in relation to the position of the supplier of the information (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 199; see also, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 159). 315 The case-law makes clear that the obligation to respect confidential information cannot deprive the applicant’s rights of defence of their substance (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142 and the case-law cited). 316 In the present case, as is apparent from recital 435 of the contested regulation and from a letter which the applicants sent to the Commission on 8 July 2020, the applicants, after receiving final disclosure, requested access to the information at issue. 317 By email of 13 July 2020, Kuraray informed the Commission that it was opposed to the disclosure to the applicants of the information at issue, including in the form of ranges instead of exact values. As the Commission stated at the hearing, that email was Kuraray’s response to an email which the Commission had sent to it after receiving the applicants’ letter of 8 July 2020, referred to in paragraph 316 above. Kuraray argued that the information at issue was confidential by nature within the meaning of Article 19(1) of the basic regulation and stated that, since it was the only EU producer sampled by the Commission to sell the product concerned to third parties, the disclosure of further details in respect of the undercutting and underselling calculations would be of a competitive advantage to its competitors and would have a significantly adverse effect on it. Such disclosure, which would reveal information about quantities of PVA sold during the investigation period as well as average prices based on PCNs, would cause irreparable harm to its business operations in the European Union. 318 Furthermore, Kuraray contended that the information about price undercutting and underselling already provided to the applicants enabled them to understand the injurious effect of the imports on the Union industry and to exercise their rights of defence. It stated that each exporting producer would be subject to the same level of anti-dumping duties in respect of all of its exports to the European Union of the product concerned, without any distinction based on PCNs. 319 By email of 14 July 2020, the Commission informed the applicants that, having assessed their request for access to the information at issue, it had decided to refuse it because the information was confidential under Article 19 of the basic regulation. The Commission’s reasons for its decision are the same as those put forward by Kuraray, set out in paragraph 318 above. 320 In recital 436 of the contested regulation, the Commission noted that, in line with Article 19 of the basic regulation, it had not been able to reveal the information at issue, since disclosure of such a level of detail would make it possible, either directly or with the addition of market intelligence, to reconstruct confidential sales or production data of individual EU producers. 321 It must be held that, in the light of Article 19(1) and (5) of the basic regulation, the Commission was not authorised to disclose the information at issue to the applicants because of Kuraray’s opposition (see, by analogy, judgments of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 178, and of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 477). 322 However, where information cannot be communicated because it is confidential, Article 19(2) of the basic regulation requires the parties which are the source of that information to provide a non-confidential summary of it whenever possible (see, to that effect, judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 483). 323 Therefore, the Court must ascertain whether, by failing to take steps to enable the applicants to be provided with the information at issue in the form of non-confidential summaries, within the meaning of Article 19(2) of the basic regulation, the Commission infringed the applicants’ rights of defence. 324 To that end, it is necessary to refer, in accordance with the principles recalled in paragraphs 20 to 22 above, to the decisions of the DSB relating to Articles 6.5 and 6.5.1 of the anti-dumping agreement, which correspond, in essence, to Article 19(1) and (2) and the first sentence of Article 19(5) of the basic agreement (see, to that effect and by analogy, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraphs 103, 188 and 190). 325 According to the Report of the Appellate Body, European Communities – Definitive anti-dumping measures on certain iron or steel fasteners from China (WT/DS 397/AB/R), adopted by the DSB on 28 July 2011 (paragraphs 542 to 544), in respect of information treated as confidential under Article 6.5 of the anti-dumping agreement, Article 6.5.1 of that agreement obliges the competent authority to require that a non-confidential summary of the information be furnished. The sufficiency of the summary provided will depend on the confidential information at issue, but the summary must permit a reasonable understanding of the substance of the information withheld in order to allow the other parties to the investigation an opportunity to respond and defend their interests. Article 6.5.1 of the anti-dumping agreement contemplates the possibility that, in exceptional circumstances, confidential information may not be susceptible of summary. In such exceptional circumstances, a party may indicate that it is not able to furnish a non-confidential summary of the information submitted in confidence, but it is nevertheless required to provide a statement of the reasons why summarisation is not possible. For its part, the competent authority must scrutinise such statements to determine whether they establish exceptional circumstances and whether the reasons given appropriately explain why, under the circumstances, no summary that permits a reasonable understanding of the information’s substance is possible. Summarisation of confidential information will not be possible where no alternative method of presenting that information can be developed that would not, either disclose the sensitive information, or fail to provide a sufficient level of detail to permit a reasonable understanding of the substance of the information submitted in confidence. 326 In the present case, when Kuraray opposed the disclosure of the information at issue, including in the form of ranges of values, it must be considered to have refused to comply with the obligation to provide non-confidential summaries of that information and to have relied in that respect on the existence of the exceptional circumstance that it was the only EU producer whose sales had been taken into account by the Commission in the analysis of price undercutting and underselling. The Commission examined Kuraray’s arguments and decided that its stance was well founded, having regard also to the fact, noted in essence in recital 436 of the contested regulation, that Chinese exporting producers would have been able to read the information sought in the light of the market intelligence already available to them. 327 Consequently, it must be held that the Commission correctly followed the steps laid down in the relevant provisions in order to strike a balance between the two objectives referred to in paragraph 308 above. 328 As to the merits of the Commission’s assessment, it should be noted that, in view of the sensitivity of the information at issue and the exceptional circumstances of this case, the Commission did not make any error in refusing its disclosure. 329 The fact that there was no error on the part of the Commission is confirmed by the fact that when the applicants received the email from the Commission refusing their request for access to the information at issue (see paragraph 319 above), they did not bring the matter before the hearing officer, although they could have done so under Article 15 of Decision (EU) 2019/339 of the President of the European Commission of 21 February 2019 on the function and terms of reference of the hearing officer in certain trade proceedings (OJ 2019 L 60, p. 20). 330 It must be held that, by refraining from bringing the matter before the hearing officer, the applicants accepted the balance struck by the Commission between the objectives in question. 331 In any event, it must be recalled that, according to the case-law, although an applicant cannot be required to show that the Commission’s decision would have been different in the absence of the procedural irregularity in question, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself had there been no irregularity, the fact remains that the existence of an irregularity relating to the rights of the defence can result in the annulment of the measure in question only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the rights of the defence (see judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission, C‑718/20 P, EU:C:2022:362, paragraph 49 and the case-law cited). 332 On that point, first, the applicants maintain that the confusion which arose regarding the percentages of products imported and sold by the Union industry that were examined in the analysis of price undercutting would not have occurred if they had received the information at issue (see the third part of the fourth plea). However, it must be stated that that confusion has no bearing on whether there is a possibility that the procedure conducted by the Commission might result in a different outcome. In any event, if the applicants considered the explanations given by the Commission (see paragraph 293 above) to be ambiguous, they could have asked the Commission for further clarification. 333 Secondly, the applicants submit that, in certain circumstances, in order to ensure that the examination of the existence of significant price undercutting at the level of the like product is objective, it may be appropriate to examine the market shares of the various product types in question. In order for an interested party to be able reasonably to argue that those circumstances prevail, it would have to have information about those market shares. 334 Since, as is apparent from paragraphs 256 to 258, in certain circumstances, the analysis of price undercutting might have to be conducted by market segment, the possibility cannot a priori be entirely ruled out that if the applicants had been in possession of non-confidential summaries in respect of the information at issue, they would have been able to put forward arguments capable of demonstrating that the circumstances of the case required that such an analysis be carried out. 335 However, as is apparent from the examination of the fourth plea, in particular from paragraphs 265 to 272 above, there is nothing in the present case that would require the Commission to carry out an analysis of price undercutting by market segment. Accordingly, the possibility that the procedure might have resulted in a different outcome if the abovementioned summaries had been available to the applicants must be ruled out. 336 In the light of all of the foregoing considerations, the fifth plea in law must be rejected. Conclusions as to the outcome of the action 337 Examination of the pleas and parts of pleas invoked by the applicants has shown that the contested regulation must be annulled with regard to the applicants in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of PVA manufactured and sold by the applicants, the Commission made downward adjustments to the export price under Article 2(10)(e), (g), (i) and (k) of the basic regulation. 338 The action must be dismissed as to the remainder. Costs 339 Under Article 134(1) 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 Commission has essentially been unsuccessful, it should be ordered to bear its own costs and to pay those incurred by the applicants, in accordance with the form of order sought by the applicants. 340 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Parliament and the Council shall bear their own costs. 341 Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 thereof to bear its own costs. In the present case, Wegochem, Kuraray and Sekisui must be ordered to bear their own costs. On those grounds, THE GENERAL COURT (Ninth Chamber, Extended Composition) hereby: 1. Annuls Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China with regard to Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of polyvinyl alcohols manufactured and sold by them, the European Commission made downward adjustments to the export price under Article 2(10)(e), (g), (i) and (k) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union; 2. Dismisses the action as to the remainder; 3. Orders the Commission to bear its own costs and to pay those incurred by Sinopec Chongqing SVW Chemical Co., by Sinopec Great Wall Energy & Chemical (Ningxia) Co. and by Central-China Company, Sinopec Chemical Commercial Holding Co.; 4. Orders the European Parliament and the Council of the European Union to bear their own costs; 5. Orders Wegochem Europe BV, Kuraray Europe GmbH and Sekisui Specialty Chemicals Europe SL to bear their own costs. Truchot Kanninen Madise Frendo Perišin Delivered in open court in Luxembourg on 21 February 2024. V. Di Bucci S. Papasavvas Registrar President TABLE OF CONTENTS Background to the dispute Forms of order sought Law First plea in law, alleging that the application of Article 2(6a) of the basic regulation is inconsistent with the obligations arising from WTO law Second plea in law, alleging infringement of Article 2(10) of the basic regulation and a manifest error of assessment First part – Applicable rules – Proof – The evidence gathered by the Commission Second part Third part – First complaint – Second complaint Third plea in law, alleging infringement of Article 18(1) and (5) of the basic regulation and of Article 6.8 of the anti-dumping agreement and Annex II thereto First complaint Second complaint Fourth plea in law, alleging infringement of Article 3(2) and (3) of the basic regulation when establishing price undercutting, and infringement of Article 3(6) of that regulation Whether the fourth plea in law is effective The merits of the fourth plea in law – First part – Second part – Third part Fifth plea in law, alleging infringement of the rights of the defence Conclusions as to the outcome of the action Costs * Language of the case: English.