ORDER OF THE COURT (Seventh Chamber)
14 November 2023 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Appeal manifestly unfounded – Regulation (EU) 2016/1036 – Dumping – Imports of certain heavyweight thermal paper originating in South Korea – Definitive anti-dumping duty)
In Case C‑257/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 April 2023,
Hansol Paper Co. Ltd, established in Seoul (South Korea), represented by B. Servais and V. Crochet, avocats,
appellant,
the other parties to the proceedings being:
European Commission,
defendant at first instance,
European Thermal Paper Association (ETPA), established in Zürich (Switzerland),
intervener at first instance,
THE COURT (Seventh Chamber),
composed of N. Wahl, acting as President of the Chamber, J. Passer (Rapporteur) and M.L. Arastey Sahún, Judges,
Advocate General: G. Pitruzzella,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By its appeal, Hansol Paper Co. Ltd (‘Hansol Paper’) asks the Court of Justice to set aside the order of the General Court of the European Union of 17 February 2023, Hansol Paper v Commission (T‑693/20, EU:T:2023:83; ‘the order under appeal’), by which the General Court dismissed its action for annulment of Commission Implementing Regulation (EU) 2020/1524 of 19 October 2020 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain heavyweight thermal paper originating in the Republic of Korea (OJ 2020 L 346, p. 19; ‘the regulation at issue’), in so far as it concerns the appellant.
Legal context
2        Article 1 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 (OJ 2016 L 176, p. 21; ‘the basic regulation’) provides:
‘1.      An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the [European] Union causes injury.
2.      A product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country.
…’
3        Article 2 of that regulation, entitled ‘Determination of dumping’, provides:
‘…
8.      The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union.
9.      In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer or are not resold in the condition in which they were imported, on any reasonable basis.
In those cases, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Union frontier level.
The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including: usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit.
C.      COMPARISON
10.      A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:
…’
4        Article 3 of that regulation, entitled ‘Determination of injury’, states:
‘1.      Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.
2.      A determination of injury shall be based on positive evidence and shall involve an objective examination of:
(a)      the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and
(b)      the consequent impact of those imports on the Union industry.
3.      With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.
…’
Background to the dispute
5        The background to the dispute was set out in paragraphs 2 to 8 of the order under appeal, as follows.
6        Following a complaint lodged on 26 August 2019 by European Thermal Paper Association (ETPA), the European Commission published, on 10 October 2019, a Notice of initiation of an anti-dumping proceeding concerning imports of certain heavyweight thermal paper originating in the Republic of Korea (OJ 2019 C 342, p. 8).
7        The product under investigation corresponded to heavyweight thermal paper weighing more than 65 g/m2; presented in rolls of a width of 20 cm or more, weighing 50 kg or more (including paper) and with a diameter of 40 cm or more; with or without a base coat on one or both sides; coated with a thermo-sensitive substance (that is, a mixture of dye and a developer that reacts and forms an image when heat is applied) on one or both sides; and with or without a top coat, originating in South Korea, and falling under CN codes ex 4809 90 00, ex 4811 59 00 and ex 4811 90 00 (‘the product concerned’).
8        The investigation of dumping and injury covered the period from 1 July 2018 to 30 June 2019 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2016 to the end of the investigation period.
9        The appellant, established in South Korea, is active in the production and export of the product concerned, inter alia to the European Union. Its sales of that product were made in the European Union, during the investigation period, to independent customers and to a related entity, Hansol Europe BV, which subsequently resold that product to independent customers.
10      The appellant, which was the only exporting producer of the product concerned in South Korea during the investigation period, and Hansol Europe responded to the anti-dumping questionnaire.
11      On 26 May 2020, the Commission adopted Implementing Regulation (EU) 2020/705 imposing a provisional anti-dumping duty on imports of certain heavyweight thermal paper originating in the Republic of Korea (OJ 2020 L 164, p. 28) That regulation imposed a provisional anti-dumping duty of 22.3% on imports of the product concerned originating in South Korea.
12      On 19 October 2020, the Commission adopted the regulation at issue. Article 1 of that regulation provides for the imposition of a definitive anti-dumping duty on imports of the product concerned originating in South Korea at a rate of 15.8%.
The proceedings before the General Court and the order under appeal
13      By application lodged at the Registry of the General Court on 5 November 2020, the appellant brought an action for annulment of the regulation at issue in so far as it concerns the appellant.
14      By the order under appeal, the General Court, finding that it had sufficient information available from the documents in the file, decided, pursuant to Article 126 of its Rules of Procedure, to give a decision on the action without taking further steps in the proceedings, and dismissed that action as manifestly lacking any foundation in law and ordered the appellant to pay the costs.
15      The General Court held, in essence, first, that by using, for the purposes of the calculation of price undercutting, artificially constructed prices and not the prices actually charged by Hansol Europe to independent customers, the Commission had not erred in law or made a manifest error of assessment and had not infringed the principle of equal treatment. Second, it held that the Commission had compared the prices charged by the Union producers and by the appellant at the same level of trade of the products at issue, that is to say, in the present case, at the initial level of trade of those products.
16      The General Court concluded that the appellant was not justified in claiming that the Commission had taken into account a manifestly incorrect export price for the purposes of calculating the price undercutting and underselling margins and that, therefore, since its argument was based exclusively on that alleged error, the appellant was also not justified in claiming that the Commission’s findings concerning the existence of injury to the Union industry, the existence of a causal link between that injury and the dumped imports and the determination of the anti-dumping duty imposed were manifestly incorrect.
Form of order sought by the appellant
17      By its appeal, the appellant claims that the Court should:
–        set aside the order under appeal and uphold its action at first instance, and
–        order the Commission and any intervening party to pay the costs, including those incurred at first instance.
The appeal
18      Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss it in whole or in part.
19      It is appropriate to make use of that power in the present case.
The appellant’s arguments
20      In support of its appeal, the appellant raises a single ground, alleging that the General Court erred in law when it concluded, in paragraph 58 of the order under appeal, that the Commission had compared the prices charged by the Union producers and by the appellant at the same level of trade of the products at issue.
21      In the first place, by deducting Hansol Europe’s selling, general and administrative costs (‘SG&A costs’), and a reasonable amount of profit, from the prices which Hansol Europe charged to its independent customers, the Commission arrived, in essence, at the price at which the appellant sold the product concerned to Hansol Europe, namely a price further up the sales chain than the price of sales made by the Union industry to independent customers, with the result that the General Court was wrong to find, in paragraph 52 of the order under appeal, that the Commission had not in any way compared the price of those sales, on the one hand, with the appellant’s sales to Hansol Europe, on the other.
22      In the second place, the General Court did not correctly apply to the facts of the present case the findings in paragraph 106 of the judgment of 12 May 2022, Commission v Hansol Paper (C‑260/20 P, EU:C:2022:370), when it held, in paragraph 57 of the order under appeal, that if the Commission had compared the ‘ex-works’ prices of the Union producers with the prices actually charged by Hansol Europe to its independent customers, that comparison would have related to prices further down the appellant’s distribution chain.
23      First, the Court of Justice has never required the comparison of prices for the calculation of the price undercutting and underselling margins to be made at the same level of the ‘distribution chain’. On the contrary, it has required that that comparison be carried out at the same level of trade of the goods in question, that is to say, at the stage at which the transaction took place having regard to the type of customers purchasing the product concerned.
24      Second, the situation at issue in the present case differs from the situation at issue in the case that gave rise to the judgment of 12 May 2022, Commission v Hansol Paper (C‑260/20 P, EU:C:2022:370). Unlike the sales of Schades Ltd (an entity also related to Hansol Paper), which were at issue in the latter case, Hansol Europe’s sales to independent customers do not constitute resales of the product concerned (by a converter such as Schades to other converters), but are at the ‘initial level of trade’ of that product. In the latter situation, the Commission is not permitted to take into account the price charged between an exporting producer and its related entity in the European Union for that entity’s sales to independent customers.
25      Furthermore, the error allegedly made by the Commission, and by the General Court in the order under appeal, would not be rectified ‘if the SG&A costs and the profits of [the Union producers’] related companies had been deducted from the Union sales price’, because that would lead to a sales price being taken into account for those entities that does not correspond to the correct level of trade.
26      In addition, the General Court wrongly held, in paragraph 54 of the order under appeal, that the volume of sales made by entities related to Union producers (in this case less than 4%) was relevant as regards the Commission’s obligation to compare prices at the same level of trade.
27      Lastly, in the third place, as regards the Commission’s alleged error in not using, for the purposes of the calculation of the price undercutting margin, the price charged by Hansol Europe to independent converters, when that was necessary to ensure that the prices used for the purposes of that calculation were compared at the same level of trade, the General Court was wrong to state, in paragraph 56 of the order under appeal, that ‘the costs and profits of the selling companies related to the sampled Union producers ‘[had] not [been] taken into account in the calculation of the injury margin’. The error made by the Commission lies in the fact that it had not used the price charged by Hansol Europe to independent converters, with the result that the General Court was also wrong to find that the issue related to the ‘target price’ used for the Union producers.
Findings of the Court
28      According to Article 1(1) of the basic regulation, an anti-dumping duty may be imposed on any dumped product whose release for free circulation in the [European] Union causes injury.
29      Article 3(2) of that regulation provides that a determination of injury is to involve an objective examination of the volume of the dumped imports and the effect of those imports on prices in the Union market for like products and their impact on the Union industry. Regarding the effect of those imports on prices, Article 3(3) of that regulation states that consideration will be given to whether there has been significant price undercutting by those imports as compared with the price of a like product of the Union industry.
30      In that context, it should be noted that, as the General Court stated in paragraph 39 of the order under appeal, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine, with the result that the judicial review of that broad discretion must be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 58 and the case-law cited).
31      More specifically, the Court of Justice has already held that, as the assessment of whether there has been price undercutting is an economically complex issue in respect of which the basic regulation does not lay down any particular methodology, the Commission enjoys a broad discretion in that regard. It follows that, in accordance with the case-law cited in the preceding paragraph of the present order, the application, by analogy, of the price construction method referred to in Article 2(9) of the basic regulation in order to assess price undercutting may be considered, provided that that method is consistent with the legal framework laid down by the basic regulation and does not lead to a manifestly incorrect result (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 99 and the case-law cited).
32      Thus, the Court of Justice has also held that it is open to the Commission, in order to ensure an objective comparison of the prices at the level of the first release for free circulation in the European Union of the product concerned, to construct the cost, insurance and freight (CIF) EU border value, which corresponds to the price at which it was released for free circulation in the European Union, that is to say, the import price immediately after the clearance of that product at the EU border, by deducting SG&A costs and a profit margin from the price of resale of that product, by a related importer, to independent customers. That application, by analogy, of Article 2(9) of the basic regulation is within the broad discretion which the Commission enjoys when implementing Article 3(2) of that regulation and cannot therefore be regarded, in itself, as vitiated by a manifest error of assessment (see, to that effect, judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraphs 103 and 105).
33      As the General Court stated in paragraph 44 of the order under appeal, that is precisely the method which was applied in the present case by the Commission in respect of products imported into the European Union by the appellant and sold to independent buyers through Hansol Europe.
34      Since that method is accepted, in accordance with the case-law cited in paragraph 32 of the present order, its application cannot be called into question by the fact, alleged by the appellant, that this resulted, in the present case, in prices which are in practice close to or even equivalent to those charged by the appellant to Hansol Europe being taken into account for the purposes of the calculation of the undercutting. Such a result is an inevitable and justified consequence, in principle, of the application of that method.
35      Similarly, that application cannot be called into question by the possible circumstance, also put forward by the appellant, that Hansol Europe’s situation differs from that of Schades, at issue in the case that gave rise to the judgment of 12 May 2022, Commission v Hansol Paper (C‑260/20 P, EU:C:2022:370), in that Hansol Europe was merely a trader, whereas Schades was a converter which purchased the product concerned from the appellant and from Union industry, before reselling it to independent customers.
36      Where an entity related to the exporter is involved in the release for free circulation in the European Union of the product concerned, it is open to the Commission, in accordance with the case-law cited in paragraphs 31 and 32 of the present order, to apply, by analogy, Article 2(9) of the basic regulation and, instead of taking into account the prices charged by that related entity, to construct the CIF EU border value of that product by deducting SG&A costs and a profit margin from the resale price of that product by that entity to independent customers, in order to ensure an objective comparison of the prices of that product at the time of its first release for free circulation in the European Union. Since such a method consists in replacing prices charged, in this case those charged by Hansol Europe to independent customers, with constructed prices and does not consist in taking into account prices charged at another level of trade, in the present case the prices charged by the appellant to Hansol Europe, it cannot be held that, in the present case, the application of that method resulted in the prices charged at that other level of trade being taken into account.
37      The General Court therefore did not err in law in concluding, in paragraph 58 of the order under appeal, that the Commission had compared the prices charged by the Union producers and by the appellant at the same level of trade of the products at issue, that is to say, in the present case, at the initial level of trade of those products.
38      The single ground raised in support of the appeal and, therefore, the appeal are thus based on a manifestly incorrect premiss, with the result that the appeal must be dismissed as manifestly unfounded.
Costs
39      Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
40      Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The appeal is dismissed as manifestly unfounded.
2.      Hansol Paper Co. Ltd shall bear its own costs.
Luxembourg, 14 November 2023.
A. Calot Escobar
N. Wahl
Registrar
Acting President of the Chamber
*      Language of the case: English.