Judgment — ECLI:EU:T:2016:378
Date: 2016-06-30
Language of the case: English
Court formation: Eighth Chamber
Subject matter: External relations;Commercial policy
Procedure: Action for annulment - unfounded;Action for annulment - successful

summary, to which that party has no access, in order to verify how that information was used by the Commission services responsible for the investigation. That provision specifies, furthermore, that the hearing officer is to inform the party having submitted the request whether, in his view, the information withheld from that party is relevant to its defence and whether, where relevant, the investigation services have correctly reflected the information in the facts and considerations on which they have based their conclusions. 203 However, the fact that the applicant did not request the hearing officer to carry out the verification laid down in Article 15 of Decision 2012/199 is not relevant in the present case. As shown by its terms, recalled in paragraph 202 above, that provision only concerns information that is by nature confidential as regards the interested party having recourse to the hearing officer and to which, for that reason, that party does not have the right of access. As has been concluded in paragraph 193 above, the Commission did not rely on any valid ground to justify the confidentiality of the normal value calculations as regards the applicant. In those circumstances, the applicant cannot be criticised for not having requested the hearing officer to verify those calculations. 204 Next, it is appropriate to examine whether, by comparison with the extent of the information available to the applicant at the date on which its request for disclosure of the normal value calculations was refused, namely 21 March 2013, access to those calculations would have enabled it, as the applicant argues, to submit additional observations, in particular by identifying errors or proposing new adjustments, with the result that the outcome of the procedure could have been different. 205 As is clear from paragraphs 26, 27 and 32 to 34 above, the information disclosed by the Commission during the investigation procedure contained relatively precise information on the method followed for the determination of the normal value and the data, product type by product type, relating to the applicant’s export sales which were compared with the normal value calculations. Furthermore, as recalled in paragraph 35 above, the analogue country producer transmitted to the applicant the internal data that it had provided to the Commission, in particular the accounting records and the detailed data relating to prices on the Indian market, and on which the Commission relied in order to calculate the normal value. 206 On the basis of those elements, taking into account moreover the financial and accounting expertise that an undertaking, such as the applicant, normally has available to it, the latter was, in principle, in a position to carry out its own calculations as regards the normal value and to compare the final result with that obtained by the Commission on the basis of the same data. To the extent that, furthermore, the Commission’s calculations product type by product type as regards export sales had been communicated to the applicant in the final disclosure document, the applicant was in a position, in absolute terms, to make its own calculation as regards the dumping margin product type by product type, as it recognised at the hearing. 207 That said, it must be observed that obtaining the normal value calculations made by the Commission would, clearly, constitute for the applicant a substantial increase in the information it held which, taking into account the circumstances of the case, would have enabled it to make more relevant observations than those that it had already presented. 208 First of all, clearly, the fact of having the detailed calculations made by the Commission available to it, and not merely the data used for those calculations, is, in general, capable of enabling the interested parties to make observations that are more useful for their defence. They can then verify exactly how the Commission used those data and compare them with their own calculations, which would enable them to identify possible errors made by the Commission which would otherwise be undetectable. Moreover, the institutions’ practice shows that they themselves consider that, for the interested parties, having available to them the detailed calculations as regards the determination of the dumping margin can enable them usefully to exercise their rights of defence. As they accepted at the hearing in response to a question by the Court, the institutions usually communicate to the exporting producers the detailed calculations of the normal value where they are made on the basis of the internal sales of those exporting producers. Likewise, as has been stated in paragraph 205 above, even though the Commission had redacted, as regards the applicant, the normal value calculations, product type by product type, for reasons of confidentiality, it had, by contrast, disclosed to the applicant the calculations of the corresponding export prices at product type level. 209 Next, it must be noted that, in the specific circumstances of the case, the applicant’s lack of access to the normal value calculations restricted its ability to submit relevant observations to a greater extent than if it had had access to those calculations. 210 First, the applicant only had very limited time in which to make use of the analogue country producer’s data. As was recalled in paragraph 35 above, the latter permitted the Commission to disclose those data and at the same time communicated them to the applicant on 18 March 2013. Furthermore, on the same day, the applicant asked the Commission to disclose to it the normal value calculations. Consequently, given that the deadline fixed by the Commission for the interested parties to submit observations in accordance with Article 20(5) of the basic regulation was due to expire on 25 March 2013, the applicant had only seven days at most in which to make use of the analogue country producer’s data. Clearly, within that time limit it was difficult for the applicant to reconstruct even a part of the normal value calculations, having regard, as it itself submitted at the hearing, to the very large number of product types that had been taken into account for the determination of the dumping margin. According to the applicant’s undisputed statements in the observations on the disclosure document dated 25 March 2013, that number reached 1 645 (see paragraph 40 above). Consequently, if the normal value calculations made by the Commission had been available to the applicant in that time, the applicant would have been in a position to identify certain mistakes or certain differences between the Commission’s calculations and its own calculations or, at the very least, to identify them in the time required. 211 Second, as the applicant submitted, in essence, at the hearing, the fact that it did not have access, in the present case, to certain information concerning the methodology of the calculation is relevant to the assessment of whether the outcome of the procedure could have been different if the Commission had disclosed the normal value calculations. As is stated in paragraphs 119 and 120 above, the applicant had, on 18 March 2013, only a general knowledge of the method used to calculate the normal value of non-matching product types. It did not know, in particular, at that date, which market and what reference prices the Commission had used in order to calculate the market value of the adjustment to the normal value of those types of products required due to the differences in physical characteristics between those product types and the corresponding product types. As noted in paragraph 120 above, those non-matching product types represented (i) 83% of all the product types sold for export which were taken into account for the calculation of its dumping margin and (ii) more than 40% of the total volume of export sales. If the applicant had had in its possession the normal value calculations product type by product type, it would have been able, at the very least, to submit observations on the results that that method had produced. The applicant thus could have, if necessary, compared those results with its own results on the basis of another method. For that reason, it would have been able to challenge more precisely the method used by the Commission and would therefore have had a greater chance of its objections being taking into account by the Commission, which did not happen in the present case. 212 Finally, as the applicant itself pointed out at the hearing, during the investigation procedure it had submitted a certain number of observations on the basis of information that it already held, some of which led to the amendment of the methodology for calculating the normal value. As recalled in paragraphs 45 and 46 above, it was as a result of the applicant’s observations that the institutions accepted that they should, first, calculate the normal value for its dumping margin on the basis of the analogue country producer’s domestic sales and not by constructing that normal value and, second, take into account for that dumping margin the non-matching product types and, therefore, determine a normal value for those types of products. Therefore, it is legitimate to assume that, if the applicant had had in its possession the normal value calculations at product type level, which constituted, as is shown in paragraphs 207 to 211 above, a substantial increase in the information it held, it would have endeavoured, as far as possible, to make use of that information in effective ways for the exercise of its rights of defence. 213 Therefore, for all the reasons set out in paragraphs 207 to 212 above, it cannot be ruled out that, if the applicant’s request regarding disclosure of the normal value calculations had been accepted, the outcome of the procedure could have been different. 214 That conclusion cannot be called into question by the arguments advanced by the institutions. First of all, it must be noted that the institutions cannot rely on paragraph 81 of the judgment in Foshan Shunde Yongjian Housewares & Hardware v Council, cited in paragraph 62 above (EU:C:2009:598), to support the argument that it was for the applicant to show that the outcome of the procedure could have been different if it had had access to the normal value calculations. It is true that, in paragraph 81 of the judgment in Foshan Shunde Yongjian Housewares & Hardware v Council, cited in paragraph 62 above (EU:C:2009:598), the Court of Justice recalled the principle that it was for an applicant to show that there was a possibility that, due to the procedural irregularity complained of, the administrative procedure could have resulted in a different outcome, thus in fact affecting the applicant’s rights of defence. However, in paragraph 94 of the same judgment, the Court clarified the effect of that principle by stating that it follows from the case-law that that obligation cannot have the effect of requiring the applicant to show that the Commission’s decision would have been different in content but simply that such a possibility cannot be totally ruled out, since it would have been better able to defend itself had there been no procedural error (see judgment in Foshan Shunde Yongjian Housewares & Hardware v Council, cited in paragraph 62 above, EU:C:2009:598, paragraphs 81 to 94). 215 In those circumstances, the applicant cannot be required to show, on the basis of the data that it held, that the Commission had committed errors in respect of the determination of the normal value in order for it to be concluded that the outcome of the procedure could have been different if the normal value calculations had been disclosed to it. 216 First, taking into account the fact that, as shown in paragraph 211 above, the applicant only had a fairly general knowledge of the methodology used by the Commission, it cannot be ruled out that certain errors could only have been identified by an analysis of the normal value calculations product type by product type. 217 Second, as stated in paragraph 210 above, even if the applicant would have been able to identify those errors on the basis of the analogue country producer’s data, it would not necessarily have been able to identify them as rapidly, which, taking into account the time available to it, could have proven determinative for the exercise of its rights of defence. 218 That is why, in the circumstances of the case, the allegation made by the institutions that, in the present action, the applicant was not able to establish that there were errors in the normal value determination, cannot be regarded, in any event, as sufficient to rule out any possibility that the outcome of the procedure could have been different. 219 In addition, for the same reasons, the fact put forward by the Council that, in any event, the interested parties only had 10 days within which to present their observations after final disclosure was given, under Article 20(5) of the basic regulation, cannot be regarded as relevant. It follows from the foregoing that, in the present case, the question raised is whether, within the time actually available to the applicant, which was, moreover, less than the period of 10 days laid down in Article 20(5) of the basic regulation, access to the normal value calculations was liable to allow it to exercise its rights of defence better than access merely to the data underlying those calculations. 220 Finally, in the context of assessing whether, if the infringement found by the Court in paragraph 193 above had not occurred, the outcome of the procedure could have been different, the fact relied on by the Council that the applicant had, in any event, a level of information sufficient for it effectively to exercise its rights of defence cannot be taken into account. Such a circumstance could only have an effect, where appropriate, in relation to the question whether or not an infringement had been committed. In any event, as has been noted in paragraph 139 above, the Commission, in order to refuse to disclose the normal value calculations, relied on the sole ground that disclosure of that information specifically to the applicant was not possible due to the need to respect equality of treatment as regards the other exporting producers included in the sample. That refusal is not therefore based on the fact that the level of information that the applicant held was sufficient to enable it to exercise its rights of defence. In addition, as noted in paragraph 208 above, the institutions themselves consider, in general, that, subject to the need to respect confidentiality of the information, the detailed calculations on the basis of which an operator’s dumping margin was calculated constitute useful information for defending the latter’s interests and should, therefore, be included in the provisional and final disclosure documents. 221 Therefore, it follows from all the foregoing that the first complaint under the first plea in law is well founded and it is necessary, on the basis of that complaint, to uphold that plea. Therefore, without it being necessary to examine the second, third and fifth pleas in law, the contested regulation must be annulled to the extent that it applies to the applicant. Costs 222 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. 223 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the case are to bear their own costs. 224 In the present case, since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. In addition, as an intervening institution, the Commission must bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber), hereby: 1. Annuls Council Implementing Regulation (EU) No 430/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in the People’s Republic of China and Thailand and terminating the proceeding with regard to Indonesia, to the extent that it applies to Jinan Meide Casting Co. Ltd; 2. Orders the Council of the European Union to pay, in addition to its own costs, those incurred by Jinan Meide Casting Co. Ltd; 3. Orders the European Commission to bear its own costs. Gratsias Kancheva Wetter Delivered in open court in Luxembourg on 30 June 2016. [Signatures] Table of contents Background to the dispute Facts relevant to the investigation procedure leading to the provisional regulation The provisional regulation and the provisional disclosure document Exchanges between the applicant and the Commission after the provisional regulation Exchanges between the applicant and the Commission after the provisional regulation The contested regulation Procedure and forms of order sought Law The fourth plea in law The first plea in law Preliminary observations The second complaint The third complaint The first complaint Costs * Language of the case: English.