Judgment;Abstract — ECLI:EU:T:2023:346
Date: 2023-06-21
Language of the case: English
Court formation: Fourth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible

summary of the pleas in law on which the application is based. It follows from the case-law that the application must specify the nature of the grounds on which the action is based. Thus, the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst it is true that the body of the application may be supported and supplemented in the reply, that cannot make up for the absence of essential arguments in law which, in accordance with the abovementioned provision, must appear in the application. The application must specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. In order to guarantee legal certainty and the sound administration of justice, the summary of the applicant’s pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent Court to rule on the action. Thus, it is not for the Court to seek and identify the pleas on which it may consider the action to be based (see, to that effect, judgments of 14 May 1998, Mo och Domsjö v Commission, T‑352/94, EU:T:1998:103, paragraph 333, and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 110). 79 Consequently, the applicants cannot rely on a logical correlation which is not readily apparent from the application. 80 Accordingly, the applicants’ arguments relating to the undermining of the remedial effects of the anti-dumping measures in relation to quantities, put forward for the first time in the reply, even though they could have been included in the application and do not amplify the present complaint put forward in the application, must be rejected as inadmissible. 81 It follows that the present complaint is based solely on reasoning relating to the prices of like products whereas, under Article 13(1) of the basic regulation, the Commission could refer solely to the undermining of the remedial effects in terms of quantities of like products, without also being required to refer to the prices of such products. 82 Therefore, since the present complaint is formulated solely in terms of prices of the like product, it must be rejected as ineffective. The lack of evidence of dumping 83 The applicants submit, first of all, that, for the purposes of determining normal value, the complaint did not take account of the fact that, at the time when Implementing Regulation 2015/2384 was adopted, the definition of the product concerned by the measures was narrower than that of the products concerned. They infer therefrom that the comparison made in the complaint between the normal value, based on that implementing regulation, and the export price is irrelevant and that the complainant did not make any corrections by applying appropriate adjustments. Next, in the complaint, the export price was calculated on the basis of export statistics concerning a wide variety of products. Lastly, the Commission also failed to complete the complaint prior to the initiation of the anti-dumping investigation. 84 The Commission disputes the applicants’ arguments. 85 In the light of the conclusion set out in paragraph 24 above, the present complaint must be analysed solely in the light of the evidence and information contained in the complaint. 86 That said, as is apparent from the case-law cited in paragraph 28 above, in accordance with Article 13(1) of the basic regulation, circumvention of anti-dumping measures is established, inter alia, where there is evidence of dumping in relation to the normal value previously established for the like product. 87 As regards the determination of the normal value, it is apparent from the complaint that the demonstration of dumping was based on the data used in Implementing Regulation 2015/2384 in connection with an expiry review. 88 It follows that the complaint took into account the normal value established previously. 89 In that regard, first, it should be noted that, according to the case-law, where the product concerned contains several product types, as is the case here, the basic regulation does not require that the complaint provide information on all those product types. Rather, it follows from Article 13(1) and (3) of that regulation that the evidence relating to dumping of the product as a whole must be sufficient for the Commission to be able to conclude that there is sufficient evidence to justify the initiation of the investigation. Therefore, evidence relating to dumping of an insignificant subcategory of the product imported would not be sufficient in that context (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 100). 90 The applicants have not claimed that the product referred to in Implementing Regulation 2015/2384, namely aluminium foil of a thickness of not less than 0.008 mm and not more than 0.018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm, of a weight exceeding 10 kg, constitutes an insignificant subcategory of the products concerned. 91 Second, it must also be ascertained whether, in the complaint, the normal value established related to like products, namely the products concerned, in relation to the product referred to in Implementing Regulation 2015/2384, in accordance with Article 13(1) of the basic regulation. 92 Under the first subparagraph of Article 13(1) of the basic regulation, ‘anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries, of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place’. 93 In the light of the first subparagraph of Article 13(1) of the basic regulation, the products listed in paragraph 7 above, to which the initial anti-dumping duty was extended by Implementing Regulation 2017/271, must be regarded as being like the product referred to in Implementing Regulation 2015/2384. 94 It should also be borne in mind that the determination of the like product falls within the exercise of the wide discretion conferred on the institutions and is therefore subject to limited review (see judgment of 11 July 2013, Hangzhou Duralamp Electronics v Council, T‑459/07, not published, EU:T:2013:369, paragraph 71 and the case-law cited). 95 It follows that the taking into account, in the complaint, of the normal value previously established for the only product referred to in Implementing Regulation 2015/2384 is consistent with Article 13 of the basic regulation. 96 The Commission accordingly could, without making a manifest error of assessment, rely on the data contained in the complaint relating to the normal value previously established in Implementing Regulation 2015/2384. 97 As regards the determination of the export price, it is apparent from the complaint that that price was determined by reference to products falling within CN code 7607 11 19 of the Combined Nomenclature. 98 It is true, as the applicants maintain, that the products falling within CN code 7607 11 19 of the Combined Nomenclature cover a wide array of products which are not limited to the products concerned. 99 However, the applicants themselves acknowledge that CN code 7607 11 19 of the Combined Nomenclature covered the most representative product types. 100 In any event, as observed in paragraphs 30 and 89 above, under Article 5(3) of the basic regulation, applicable in the present case by reason of the third subparagraph of Article 13(3) of that regulation, the Commission must determine whether there is sufficient evidence, assessed as a whole, justifying the initiation of an investigation. In the light of the considerations set out in the context of the present plea, the Commission could, without making a manifest error of assessment, conclude that the complaint contained sufficient evidence and rely on a body of consistent evidence in order to decide to initiate the anti-dumping investigation (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 52). In that regard, it should be borne in mind that, in accordance with the case-law cited in paragraph 32 above, the legal test to be applied in accordance with Article 13(3) of the basic regulation is not the accuracy and adequacy per se of the evidence, but rather its sufficiency. 101 In addition, first, according to the case-law cited in paragraph 44 above, the definition of the term ‘circumvention’ is set out in Article 13(1) of the basic regulation in very general terms which leave a broad discretion to the EU institutions. That principle must apply a fortiori in the context of the initiation of an anti-circumvention investigation provided for in Article 5(3) of that regulation. 102 Second, as has been stated in paragraphs 31, 34 and 49 above, the Commission could rely on a risk of circumvention, without its being required that the information provided in the complaint constitute irrefutable evidence of the existence of the facts alleged. An anti-dumping investigation is a process where certainty on the existence of all of the elements necessary in order to adopt a measure is reached gradually as the investigation moves forward (see, to that effect, in the context of the WTO, the Panel Report entitled ‘Mexico – Anti-dumping duties on steel pipes and tubes from Guatemala’, adopted on 8 June 2007) (WT/DS331/R, paragraph 7.22). 103 Consequently, the present complaint must be rejected, as must, therefore, the present plea in its entirety. Second plea: infringement of the obligation to state reasons 104 The present plea is divided into two parts. The first concerns the calculation of the non-injurious price and the second concerns the adjustments to the London Metal Exchange (‘the LME’) price. Preliminary observations 105 According to the case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its power of review (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 75). 106 That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 76). 107 It should also be emphasised that the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned, but that it is sufficient to set out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 15 March 2018, Caviro Distillerie and Others v Commission, T‑211/16, EU:T:2018:148, paragraph 104 and the case-law cited). 108 It must be added that the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to the observations which it has made during the administrative procedure (judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 173). 109 However, where, in a case of dumping, the interested parties insist during the administrative proceeding on obtaining answers or clarifications in respect of the key method to be used by the institutions in making the calculations, it must be held that it is even more important for the institutions to give reasons for their decision in such a way that the persons concerned are able to understand the calculations thus made (judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 127). 110 In addition, the reasons for a measure must appear in the actual body of the measure and may not, save in exceptional circumstances where there is inadequate reasoning, be stated in written or oral explanations given subsequently when the measure is already the subject of proceedings brought before the European Union Courts (see judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 128 and the case-law cited). 111 Where the institutions enjoy a wide power of appraisal, respect for the safeguards guaranteed by the European Union legal order in administrative procedures is of even greater fundamental importance, especially since those guarantees include, in particular, the obligation of the competent institution to give an adequate statement of the reasons for its decision (judgments of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 175, and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 98). 112 It is in the light of those principles that the Court must examine the two parts of the present plea. First part: calculation of the non-injurious price 113 The applicants claim that, in the contested regulation, the Commission did not explain how the non-injurious price was actually calculated. In their submission, however, that information ought to have been provided to them in the context of the anti-circumvention procedure. 114 First of all, the applicants observe that the non-injurious price was not indicated either in Implementing Regulation 2015/2384 or in Implementing Regulation 2017/721. 115 The applicants further claim that the Commission presented the non-injurious price in ranges. They add that, by using the method for calculating that price applied in the complaint, they do not obtain the same results as the Commission, since those results even show a considerable deviation in a context of very price-sensitive products. In that context, they state that they do not dispute the accuracy of those ranges, but complain that they cannot be checked. 116 Next, the applicants submit that they do not know whether the non-injurious price calculated by the Commission concerns the products exported by them during the reporting period of the anti-circumvention investigation or all product types exported during the previous anti-circumvention investigation. 117 Lastly, the applicants observe that, in their observations on the general disclosure document of 24 June 2021, they specifically requested the Commission to provide them with additional details on how the non-injurious price was calculated. Recital 88 of the contested regulation does not provide sufficient information in that regard. 118 The Commission disputes the applicants’ arguments. 119 In the present case, it is apparent from recital 85 of the contested regulation that the Commission took into consideration ‘the average non-injurious price as established in the previous expiry review’. 120 In recital 88 of the contested regulation, it is stated that ‘the non-injurious price level was provided to the Dingsheng Group in the specific disclosure of 24 June 2021, and presented in ranges’, that ‘from the information provided in the specific disclosure, it could also easily be determined that the target profit used was 6%’, that ‘the information provided was therefore considered sufficient to verify the accuracy and adequacy of the Commission’s calculations’ and that ‘in addition, it should be noted that the one cooperating company in the review investigation is also part of the Dingsheng Group, and the Group was thus provided with more details at that point in time’. 121 In the first place, first of all, in accordance with the case-law cited in paragraphs 108 and 110 above, for the purposes of its obligation to state reasons, the Commission may not rely on information which is not contained in the contested regulation or which was not communicated to the applicants during the administrative procedure of the anti-circumvention investigation that led to the adoption of the contested regulation. Consequently, information allegedly communicated in previous and separate proceedings cannot be taken into account. 122 In addition, the non-injurious price established in the context of Implementing Regulation 2015/2384 is not readily apparent either from that act or from the information provided to the applicants during the administrative procedure. 123 Next, during the administrative procedure, the Commission did not explain the methodology it had applied in order to calculate the non-injurious price determined for the purposes of the anti-circumvention investigation and presented in ranges. Nor do those explanations appear in the contested regulation. 124 Thus, in their observations on the general disclosure document of 24 June 2021, the applicants specifically requested the Commission to provide them with additional details on how the non-injurious price was calculated. However, in recital 88 of the contested regulation, the Commission merely indicated that the target profit used was 6%. 125 In accordance with the case-law cited in paragraph 109 above, in the light of the request for additional information put forward by the applicants during the administrative procedure, the Commission was all the more required to state reasons for its decision in such a way that they were in a position to understand the calculations made. The information provided by the Commission fails to satisfy that requirement, however. 126 Moreover, in the complaint, the non-injurious price was determined on the basis of data provided in Implementing Regulation 2015/2384. However, the ranges provided by the Commission in the anti-circumvention proceeding differ considerably from the non-injurious price calculated in the complaint. In view of the applicants’ request for information during the administrative procedure, the Commission should have provided greater clarification for its approach. Yet in that context, the Commission merely maintains that it is not required to explain the difference between the calculations resulting from the complaint and its own calculations and that such a discrepancy is a challenge on the substance. 127 Lastly, as regards the Commission’s duty of confidentiality, it should be borne in mind that, according to the case-law, a failure to state reasons cannot be justified by the obligation to respect business secrets, which cannot be given so wide an interpretation that the obligation to state reasons is deprived of its essential content (see, to that effect, judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 48; see also, by analogy, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142). 128 Moreover, the Commission does not explain how disclosure of the non-injurious price would have undermined its duty of confidentiality. That is all the more so since it maintains that the level of that price was the same as that which had been established in the previous expiry review. Moreover, in the complaint, that price was determined on the basis of the unit cost of production set out in Table 8 of Implementing Regulation 2015/2384 and a target profit. That information is not confidential, however. The Commission’s arguments in that regard must therefore be rejected. 129 In the light of all the foregoing, the Court finds that the Commission provided an inadequate statement of reasons as regards the calculation of the non-injurious price. 130 However, in the second place, it must be noted that recitals 85 and 88 of the contested regulation form part of the analysis relating to the undermining of the remedial effects of the anti-dumping duty. As has been stated in paragraph 74 above, it is sufficient for such remedial effects to be established alternatively, either in terms of the prices of like products or in terms of the quantities of such products. 131 The infringement of the obligation to state reasons found in paragraph 129 above relates only to the remedial effects of the anti-dumping duty in terms of the prices of like products. 132 In that regard, it should be observed that, in recital 84 of the contested regulation, read in conjunction with recital 86 thereof, the Commission explained that, due to the considerable increase in imports of jumbo rolls from Thailand during the reporting period, the condition relating to the remedial effects of the anti-dumping duty in terms of quantities of like products was met. 133 Since the establishment of the remedial effects of the anti-dumping duty in terms of quantities of like products is sufficient to establish the undermining of those remedial effects and is the subject of an adequate statement of reasons in the contested regulation, the infringement of the obligation to state reasons found in paragraph 129 above cannot lead to the annulment of that regulation. 134 Consequently, this part of the plea must be rejected as ineffective. Second part: the adjustments to the LME price 135 The applicants claim that the failure to state reasons concerning the adjustments to the LME price has an impact on the verification of the accuracy of the Commission’s calculations concerning both the non-injurious price and the dumping margin. 136 In that regard, first of all, the applicants observe that, in the contested regulation, the Commission merely stated that the data used had been provided by a financial IT company without giving them access to that paying database. They also complain that, without any justification, the Commission used that database as the sole source of the LME ‘trend’. 137 Next, the applicants claim that they do not know whether the adjustment made by the Commission reflects only the LME price itself or also includes the ‘metal premium’, which is the surcharge paid by EU producers to aluminium smelters or traders. 138 Lastly, the calculations made by the applicants, based on other reliable and publicly available sources, did not produce results that could be reconciled with the information provided by the Commission. The LME price is a single indicator communicated to the various distributors by the LME itself and, therefore, the corresponding adjustment should not vary according to the source. 139 The Commission disputes the applicants’ arguments. 140 In that regard, it should be noted that, in recital 90 of the contested regulation, it is stated that the ‘normal values established during the last expiry review (for the original like product) and anti-circumvention investigation (for the slightly modified product) [were] duly adjusted to [LME] fluctuations’. 141 As is apparent from recital 91 of the contested regulation, the Dingsheng Group claimed that ‘the LME adjustment was incorrect’. In its view, ‘the upward adjustment should have been a downward adjustment, as the LME price experienced a decreasing trend between the review investigation and the reporting period’. 142 In recital 92 of the contested regulation, the Commission replied that ‘the calculations were based on the normal values previously established for the like product. This includes the LME values that were used at the time of those investigations’. It added ‘using the values established in the previous investigations and comparing these to the LME data from the same data source as originally used (Bloomberg) for the reporting period, i.e. applying the same methodology as in the previous investigations, showed that the upward adjustment done by the Commission was accurate’. 143 It follows that the contested regulation provides sufficient information as to the method used by the Commission for the purpose of adjusting the LME price. 144 Moreover, since the Commission justified the use of the database in question, in particular by its initial use (see recital 92 of the contested regulation), contrary to what the applicants maintain, it was not required to state expressly in the contested regulation the reasons why it had decided not to use other sources of information. 145 Moreover, in stating that the LME price is a single indicator communicated to the various distributors by the LME itself and that, therefore, the corresponding adjustment should not vary according to the source, the applicants are arguing, in essence, that the lack of access to the database used by the Commission should not have any implications for understanding the calculations made by it. Accordingly, their arguments resemble challenges on the substance linked to an alleged incorrect adjustment of the LME price, including the applicants’ allegedly irreconcilable calculations with those of the Commission. It should be borne in mind that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 343, and of 30 April 2015, VTZ and Others v Council, T‑432/12, not published, EU:T:2015:248, paragraph 201). 146 Moreover, it is apparent from the applicants’ observations on the general disclosure document of 24 June 2021 that they did not request access to the information relating to the adjustment of the LME price used by the Commission, but merely challenged the Commission’s calculations. The fact that the applicants were able to challenge those adjustments and calculations shows that they were in a position to understand them and to have sufficient knowledge of the underlying details. 147 Lastly, since the ‘metal premium’ does not appear anywhere in the contested regulation, the applicants may not rely on a possible ambiguity in that regard in terms of its potential inclusion in the adjustment of the LME price. Moreover, as stated by the Commission, Implementing Regulation 2017/271 does not refer to it, whereas Implementing Regulation 2015/2384 addresses that concept solely in relation to harm suffered. 148 In the light of the foregoing, the present part of the plea must be rejected, as must, accordingly, the present plea in its entirety. 149 In light of all the foregoing, the appeal is dismissed. Costs 150 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. 151 Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders Hangzhou Dingsheng Industrial Group Co., Ltd, Dingheng New Materials Co., Ltd and Thai Ding Li New Materials Co., Ltd to bear their own costs and to pay those incurred by the European Commission. da Silva Passos Gervasoni Reine Delivered in open court in Luxembourg on 21 June 2023. V. Di Bucci M. van der Woude Registrar President *Language of the case: English. 1 The present judgment is the subject of publication in extract form.