Judgment — ECLI:EU:T:2015:248
Date: 2015-04-30
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary of the explanations on the basis of which the Council found that the Russian and Ukrainian exporting producers had the opportunity to significantly increase the volume of their exports to the EU market. Recitals 66 to 74 in the preamble to the contested regulation relate to the position of Russian production. It is clear that, in recital 123 in the preamble to the contested regulation, the Council made a mistake and ought to have referred to recitals 70 and 71, which deal with the question of spare Russian production capacity. Recitals 75 to 81 in the preamble to the contested regulation relate to the situation of Ukrainian production. It is also clear that the Council made a mistake in recital 123 in the preamble to the contested regulation, since it should have referred to recitals 78 and 79. However, since the adequacy of the statement of reasons of an act emerges from the context of that act, it cannot be argued that the errors made by the Council — which, moreover, are minor — render the statement of reasons inadequate as a result of inconsistency, since it is easy to understand the reasoning followed in the parts of the contested regulation of which the recitals referred to in recital 123 form part. 208 Sixthly, the applicants point to a contradiction between recitals 121 and 130 in the preamble to the contested regulation, on the one hand, and recital 125, on the other. In the analysis of the situation of the EU industry, the Council found, in recital 121 in the preamble to the contested regulation, that the economic and financial situation of the EU industry had improved after the adoption of Regulation No 954/2006, concluding that the measures thus introduced had been effective and that the EU industry had recovered from past dumping. In recital 130 in the preamble to the contested regulation, the Council found that the EU industry was structurally viable in view of its positive economic development. Finally, in recital 125 in the preamble to the contested regulation, the Council held that the recovery of the EU industry could not be considered complete, particularly given the fact that, until 2009, the market shares held by the three countries upon which anti-dumping duties had been imposed by Regulation No 954/2006 had been taken by imports from China, and that that industry remained vulnerable to injury liable to recur. Those considerations are in no way contradictory, but, on the contrary, demonstrate the logic of the Council’s conclusions as to the consequences of the likelihood of recurrence of injury as a result of imports of dumped products from Russia and Ukraine. In reality, the improvement of the situation of the EU industry and its viability do not prevent a finding to the effect that that industry nonetheless remains vulnerable in the event of a likelihood of recurrence of injury. 209 Consequently, the second part of the fourth plea in law must be rejected. The third part of the plea in law, alleging infringement of the principle of sound administration and of the applicants’ rights of defence as a result of the fact that the Member States were prematurely provided with information and that the Anti-Dumping Advisory Committee was prematurely convened 210 The applicants submit that the Commission infringed the principle of sound administration and their rights of defence by providing the Member States with information on the case, on 11 April 2012, before it had received the applicants’ own observations, and by consulting the Anti-Dumping Advisory Committee before their hearing, which took place six days after that committee had met. According to the applicants, it is not inconceivable that the documents not communicated to the Committee contained important information which ought to have been taken into account, in particular as regards the absence of any examination of certain of their arguments in the definitive disclosure document, as highlighted in their observations of 24 April 2012. The applicants therefore consider that they were not given the opportunity to make their views known effectively. 211 The applicants note that the members of the Anti-Dumping Committee had less than one working day in which to examine the information sent by the Commission, which is not enough. The applicants submit that it cannot be excluded that the Anti-Dumping Committee might have changed its position if their observations had been available to it in writing and orally. 212 While the consultation of a committee may constitute an essential procedural requirement, the breach of which affects the legality of the act adopted following consultation if it is established that the failure to communicate certain material information did not allow the committee to deliver its opinion in full knowledge of the facts, that is to say, without having been misled on an essential matter by inaccuracies or omissions (see the case-law referred to in paragraph 177 above), that is not the case where the documents not sent to the committee, or sent only belatedly, do not contain any important new information not already contained in the file sent to the committee when it was convened. In such a situation, the fact that the Commission failed to send a document, or sent it belatedly, has no repercussions on the outcome of the consultation procedure and cannot, therefore, render the whole administrative procedure invalid and thereby call into question the legality of the final measure (see the case-law referred to in paragraph 183 above). 213 With respect to the conduct of the final phase of the expiry review of the anti-dumping measures, it is not disputed that on 4 April 2012 the applicants received the definitive disclosure, which stated that 24 April 2012 was the deadline by which their observations had to be submitted, that, on 12 April 2012, they requested a hearing with the Hearing Officer, which was held on 2 May 2012, after they had refused the dates proposed by that officer, which were 23, 24 or 25 April 2012. The latter information, submitted by the Council in its defence, is not disputed by the applicants. On 26 April 2012, the Commission obtained the opinion of the Anti-Dumping Advisory Committee, provided for in Article 15 of Regulation No 1225/2009, on its proposal for definitive anti-dumping duties (see paragraph 8 above). 214 Moreover, the Council submits, without being contradicted, that the Commission sent to the Anti-Dumping Advisory Committee the applicants’ observations of 24 April 2012 in the form of two separate notes, the first before the Committee’s meeting and the second after the hearing of the applicants by the Hearing Officer. The parties agree that the Anti-dumping Advisory Committee had only one working day to view the content of the observations of 24 April 2012. The applicants do not dispute, moreover, the Council’s comment to the effect that the hearing on 2 May 2012 contained no new observations. 215 A reading of the observations of 24 April 2012 makes it clear that the applicants addressed questions on which they had not yet submitted any observations, such as the situation of the EU industry, the duration of the anti-dumping measures, the difference in treatment between imports from Croatia and imports from Russia, and the termination of the investigation relating to imports of the products in question originating in Belarus. However, it must also be noted that the new elements contained in the observations of 24 April 2012 are relatively short, amounting to barely five pages, and are hardly fleshed out. It is appropriate to find, as the Council did, that the Anti-Dumping Advisory Committee was in a position to take account of the content of those new elements and to appraise their significance in assessing the likelihood of recurrence of injury within one working day. Indeed, most of the comments made in the observations of 24 April 2012, with the exception of those relating to the termination of the investigation for imports from Belarus, consist of criticisms of the considerations set out in the draft regulation, of which the Committee was already aware, formulated in the light of the previous regulations or of the Commission’s practice. Those comments contain no new information on the situation of the imports from the TMK group or of the impact of certain aspects of those imports on the determination of injury. Regarding the comments relating to imports from Belarus, it should be recalled that, for the reasons set out in paragraphs 171 to 175 above, they are not relevant for the purpose of determining whether the regulation that the Council was at that time proposing to adopt should, or should not, have led to a finding that a recurrence of injury was likely. 216 In compliance with the case-law cited in paragraphs 211 and 212 above, it must be held that the evidence provided in response to the definitive disclosure does not constitute important information liable to have placed the Anti-Dumping Advisory Committee in a position in which it was unable to give its opinion in full knowledge of the facts because of the short time available to examine it. The consultation of the Committee is therefore not vitiated by illegality. 217 Finally, while it is true that the hearing of the applicants by the Hearing Officer was held after the meeting of the Anti-Dumping Committee, that circumstance is not, in the present case, such as to have placed the Anti-Dumping Advisory Committee in a position in which it was unable to give its opinion in full knowledge of the facts, since it is apparent from the minutes of the hearing, prepared by the Hearing Officer and not disputed by the applicants, that no new argument was raised by them at the hearing. 218 It follows that the third part of the fourth plea in law must be rejected, and, accordingly, the plea must be rejected in its entirety. 219 It follows from all of the foregoing that the action must be dismissed. Costs 220 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, in accordance with the form of order sought by the Council. 221 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions and Member States intervening in the proceedings are to bear their own costs. The Commission must therefore be ordered to bear its own costs in the present case. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Volžskij trubnyi zavod OAO (VTZ OAO), Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), Sinarskij trubnyj zavod OAO (SinTZ OAO) and Severskij trubnyj zavod OAO (STZ OAO) to bear their own costs and to pay those incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs. Dittrich Schwarcz Tomljenović Delivered in open court in Luxembourg on 30 April 2015. [Signatures] * Language of the case: English.