62012TJ0169_EN
Parties
Grounds
Operative part
Parties
In Case T‑169/12,
Chelyabinsk electrometallurgical integrated plant OAO (CHEMK),
established in Chelyabinsk (Russia),
Kuzneckie ferrosplavy OAO (KF),
established in Novokuznetsk (Russia),
represented by B. Evtimov, lawyer,
applicants,
v
Council of the European Union,
represented by J.-P. Hix, acting as Agent, assisted initially by G. Berrisch and A. Polcyn, lawyers, and subsequently by G. Berrisch and N. Chesaites, Barrister, and lastly by D. Gerardin, lawyer,
defendant,
supported by
European Commission,
represented initially by H. van Vliet, M. França and A. Stobiecka-Kuik, and subsequently by M. França, A. Stobiecka-Kuik and J.‑F. Brakeland, acting as Agents,
and by
Euroalliages, established in Brussels (Belgium), represented by O. Prost and M.‑S. Dibling, lawyers,
interveners,
APPLICATION for the annulment in part of Council Implementing Regulation (EU) No 60/2012 of 16 January 2012 terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia (OJ 2012 L 22, p. 1), in so far as it concerns the applicants,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 28 March 2014,
gives the following
Judgment
Grounds
Legal context
1. The basic European Union anti-dumping regulation is Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22, ‘the basic regulation’), which replaced Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended.
2. Article 2 of the basic regulation lays down the rules governing the determination as to whether dumping is being practised. Paragraphs 11 and 12 of Article 2 of the basic regulation concern the determination of the dumping margin during the investigation period. Under Article 2(12) of the basic regulation, ‘[t]he dumping margin shall be the amount by which the normal value exceeds the export price’.
3. Article 11(3) of the basic regulation governs the interim review procedure. According to that provision:
‘The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review.
An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence.’
4. Article 11(9) of the basic regulation provides:
‘In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.’
Background to the dispute
5. The applicants, Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF), are companies established in Russia and active in the production of ferro-silicon, an alloy used in the manufacture of iron and steel. RFA International LP (RFAI) is a commercial trader related to the applicants. RFAI, which is established in Canada and has a branch in Switzerland, is responsible for the applicants’ sales in the European Union.
6. On 25 February 2008, following a complaint lodged by the Liaison Committee of the Ferro-Alloy Industry (Euroalliages), the Council of the European Union adopted Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro‑silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6, ‘the original regulation’). Pursuant to Article 1 of the original regulation, the rate of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, was fixed at 22.7% for the products manufactured by the applicants.
7. On 30 November 2009, the applicants submitted a request for partial interim review, limited to dumping, under Article 11(3) of the basic regulation. In their request, the applicants claimed that the circumstances on the basis of which the original regulation had been adopted had changed and that the changes at issue were of a lasting nature.
8. On 27 October 2010, the European Commission published a notice of initiation of a partial interim review of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia (OJ 2010 C 290, p. 15), limited in scope to dumping. The period covered by the review investigation ran from 1 October 2009 to 30 September 2010 (‘the review investigation period’).
9. By letters of 12 January and 24 March 2011, the applicants provided the Commission with clarifications regarding, respectively, the structure of the group to which they and RFAI belonged and the question of the lasting nature of the change of circumstances mentioned in the request for an interim review.
10. On 28 October 2011, the Commission sent the applicants a document containing the essential facts and considerations on the basis of which it intended to recommend the termination of the interim review without amending the anti‑dumping measures imposed by the original regulation (‘the general disclosure document’). In that document, the Commission set out, first, the calculation and the amount of the dumping margin for the review investigation period and, secondly, stated that the change of circumstances relied on by the applicants in their request for an interim review could not be regarded as being of a lasting nature.
11. On 14 November 2011, the applicants sent their comments on the general disclosure document to the Commission.
12. As a result of the partial interim review, the Council adopted Implementing Regulation (EU) No 60/2012 of 16 January 2012 terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 of the anti‑dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia (OJ 2012 L 22, p. 1, ‘the contested regulation’). In that regulation, the Council examined, under the heading ‘2. Lasting nature of changed circumstances’, whether the change of circumstances relied on by the applicants in their request for an interim review, limited to dumping, was lasting and therefore capable of justifying a reduction or even an elimination of the measures in force.
13. First, the Council recalled that, when assessing the need to continue existing measures in a review based on Article 11(3) of the basic regulation, the EU institutions had a wide discretion, which included the option of carrying out a prospective assessment of the pricing policy of the exporters concerned. The Council then stated that it was in this context that the applicants’ arguments regarding the lasting nature of the changes of circumstances which they invoked had to be assessed in the present case.
14. Secondly, in its examination of the lasting nature of the change of circumstances invoked by the applicants, the Council (i) considered it appropriate to describe the EU institutions’ considerations regarding the question whether the applicants had still been dumping on the EU market during the review investigation period and (ii) on that basis roughly assessed the dumping margin in the context of the review procedure at ‘approximately 13%’. The Council then examined the applicants’ various arguments concerning the allegedly lasting nature of the changes of circumstances which they invoked. Following that examination, the Council concluded, in recital 54 of the contested regulation, under the heading ‘2.5. Conclusion: insufficient evidence of lasting nature of changed circumstances’, that there was at that time insufficient evidence that any changed circumstances at issue were of a lasting nature and that, consequently, it would be premature and therefore unjustified, at that point in time, to lower the duty in force. As is apparent from recitals 38 and 40 of the contested regulation, in addition to that conclusion, the Council explicitly stated that, whatever the amount of the dumping margin during the review investigation period, there was ‘in any case’ insufficient evidence to consider the amount corresponding to that margin during that period as a lasting one. As a consequence, the Council decided, in Article 1 of the contested regulation, that there was no need to modify the level of the anti‑dumping duty which had been determined in the original regulation.
15. At the same time as the request for an interim review, refund applications for anti‑dumping duties paid were filed by RFAI pursuant to Article 11(8) of the basic regulation. The refund applications covered the period from 1 October 2008 to 30 September 2010. The Commission divided the investigation period in respect of which refund was sought into two sub-periods: from 1 October 2008 to 30 September 2009 (‘IP1’) and from 1 October 2009 to 30 September 2010 (‘IP2’), IP2 being identical to the review investigation period.
16. On 9 November 2011, the Commission disclosed to the applicants its findings on the refund applications relating to IP1. With regard to IP2, the Commission referred the applicants to the general disclosure document, which was drawn up as part of the interim review.
17. By e-mail of 26 January 2012, the applicants requested that the calculation of the dumping margin, as mentioned in the contested regulation, be disclosed to it. By e-mail of the same day, the Commission responded stating that it would send the applicants the details of that calculation in the context of the refund applications relating to IP2.
18. On 6 June 2012, the Commission sent the applicants the final disclosure document within the context of the refund investigation, including, inter alia, a calculation of the dumping margin for IP2.
Procedure and forms of order sought
19. By application lodged at the Court Registry on 10 April 2012, the applicants brought the present action.
20. By documents lodged at the Court Registry on 1 June and 18 July 2012 respectively, the Commission and Euroalliages applied for leave to intervene in the present case in support of the form of order sought by the Council.
21. By documents lodged at the Court Registry on 6 August and 21 September 2012 and 1 March 2014, the applicants requested that, pursuant to Article 116(2) of the Rules of Procedure of the General Court, certain confidential elements of the application, the defence, the reply and the Commission’s observations be omitted from the documents communicated to Euroalliages. For the purposes of that communication, the applicants, the Council and the Commission produced a non-confidential version of the pleadings in question.
22. By orders of 5 September 2012, the President of the Fourth Chamber of the Court granted the applications to intervene lodged by the Commission and Euroalliages.
23. When the composition of the chambers of the Court was altered, the Judge‑Rapporteur was assigned to the Second Chamber, to which this case was, consequently, assigned.
24. By measure of organisation of procedure, the Commission was asked to produce a document. The Commission responded to that request within the time allowed.
25. The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 28 March 2014.
26. The applicants claim that the Court should:
– annul the contested regulation in so far as they are concerned by it;
– order the Council to pay the costs.
27. The Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
28. The Commission contends that the Court should dismiss the action.
29. Euroalliages contends that the Court should:
– dismiss the pleas in law put forward by the applicants;
– order the applicants to pay the costs.
Law
30. In support of their application for annulment, the applicants put forward three pleas in law.
31. By the first plea in law, the applicants claim that the Commission and the Council (‘the institutions’) (i) infringed Article 11(9) of the basic regulation, read in conjunction with the first sentence of Article 2(12) of that regulation, (ii) erred in law and exceeded their margin of discretion within the context of the application of Article 11(3) of the basic regulation and (iii) infringed their rights of defence. In essence, they challenge the fact that the Council did not calculate the dumping margin precisely in the contested regulation.
32. By the second plea in law, the applicants allege a manifest error of assessment by the institutions as regards the calculation of the export price for the purposes of determining the dumping margin, during the review investigation.
33. By the third plea in law, the applicants rely on an infringement of Article 11(3) of the basic regulation and a manifest error of assessment. In essence, they contest the institutions’ conclusion that the change of circumstances, invoked in support of their request for an interim review, was not of a lasting nature.
34. As a preliminary point, the Court considers it necessary to determine the conditions under which it is appropriate to examine the three pleas in law raised by the applicants in support of the present action. In that regard, it should be noted that the contested regulation was adopted on the conclusion of an interim review under Article 11(3) of the basic regulation, the provisions of which set out the conditions for initiating, and the objectives of, the procedure within the context of such a review (judgment of 17 November 2009 in MTZ Polyfilms v Council, T‑143/06, ECR, EU:T:2009:441, paragraph 40).
35. In this respect, first of all, it should be remembered that, as set out in the first subparagraph of Article 11(3) of the basic regulation, the need for the continued imposition of measures may be examined, inter alia, following a request by an exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review. In the present case, the request was made by the applicants in their capacity as exporters. In addition, it is common ground between the parties that that request was limited in scope to dumping.
36. Next, it is apparent from the second subparagraph of Article 11(3) of the basic regulation that, in essence, where the request is made by an exporter or an importer and is limited in scope to dumping, the need for an interim review requires that request to contain sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping.
37. Lastly, it is apparent from the case-law that, as regards the processing of a request for a review limited in scope to dumping, the Council may, in accordance with Article 11(3) of the basic regulation, find that there are significant changes in the circumstances with regard to the dumping and is entitled, after confirming that those changes are lasting, to conclude that it is appropriate to amend the anti‑dumping duty at issue (judgment in MTZ Polyfilms v Council, paragraph 34 above, EU:T:2009:441, paragraph 41).
38. In the light of the reminders set out in paragraphs 34 to 37 above, it is necessary, first, to examine together the first and third pleas, in so far as they complain that the Council, in essence, infringed (i) Article 11(3) of the basic regulation, (ii) Article 11(9) of that regulation, read in conjunction with Article 2(12) of that regulation, and (iii) the applicants’ rights of defence. Then the second plea, which relates to the calculation of the export price in the context of the determination of the dumping margin, will be examined in the light of the conclusions drawn with regard to the first and third pleas.
The first and third pleas in law, taken together, alleging infringement of Article 11(3) of the basic regulation, Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation, and also infringement of the rights of the defence
39. In the first and third pleas, taken together, the applicants invoke an infringement of (i) Article 11(3) of the basic regulation, (ii) Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation, and (iii) their rights of defence.
Infringement of Article 11(3) of the basic regulation
40. In support of the first and third pleas, the applicants invoke an infringement of Article 11(3) of the basic regulation. In essence, they raise two complaints alleging, first, that the institutions erred in law as regards the scope of their discretion under that article, and, secondly, that the institutions committed a manifest error of assessment by taking the view, with regard to the dumping margin, that there was no lasting change of circumstances.
– The first complaint in the first plea, alleging an error of law by the institutions as regards the scope of their discretion under Article 11(3) of the basic regulation
41. The applicants claim, in essence, that, by refraining from precisely calculating the dumping margin in accordance with Article 11(9) of the basic regulation, on the ground that the change of circumstances on which the applicants were relying was not lasting, the institutions erred in law and exceeded the limits of their discretion in the context of the prospective assessments provided for in Article 11(3) of the basic regulation.
42. The Council and the Commission contest the applicants’ argument.
43. First, as observed in paragraphs 34 to 37 above, it is clear from the wording of the second and third subparagraphs of Article 11(3) of the basic regulation that the objective of the interim review is to verify the need for the continued imposition of the anti-dumping measures and that, in this regard, where the review request made by an exporter is limited to dumping, the institutions must first assess the need for the continued imposition of the existing measure and, on that basis, find a not only significant but also lasting change of circumstances with regard to the dumping (see, to that effect, judgment in MTZ Polyfilms v Council, paragraph 34 above, EU:T:2009:441, paragraph 41). It is only as a second step, once the institutions have assessed the need for the continued imposition of the existing measures and decided to amend the existing measures, that they are bound, when determining the fresh measures, by the provisions in Article 11(9) of the basic regulation conferring on them the express power and obligation to apply, in principle, the same methodology as that used in the original investigation which led to the anti-dumping duty (judgment in MTZ Polyfilms v Council, paragraph 34 above, EU:T:2009:441, paragraph 49).
44. Secondly, according to settled case-law, as recalled in recital 11 of the contested regulation, in the sphere of the common commercial policy and, most particularly, in the realm of trade protection, the institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. Judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based 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 16 February 2012 in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63; see, to that effect, judgment of 27 September 2007 in Ikea Wholesale, C‑351/04, ECR, EU:C:2007:547, paragraphs 40 and 41).
45. Those considerations apply, in particular, to the assessments which the institutions make in the course of review procedures. In the case of an interim review pursuant to Article 11(3) of the basic regulation, where the review request is limited in scope to dumping, the Commission may, inter alia, consider whether the circumstances with regard to dumping have changed significantly or whether existing measures are achieving the intended results in order to propose repealing, amending or maintaining the anti-dumping duty established as a result of the original investigation.
46. Thirdly, it should be noted that Article 11(3) of the basic regulation does not set out specific methodologies or detailed rules which the institutions must apply in order to carry out the investigations provided for by that provision. According to the third subparagraph of Article 11(3) of the basic regulation, account is only to be taken, in determining whether the circumstances with regard to dumping and injury have changed significantly, ‘of all relevant and duly documented evidence’.
47. Fourthly, it should be noted that the review which the Commission must conduct in this regard leads it to carry out not only a retrospective analysis of the development of the situation under consideration, as from the imposition of the original definitive measure, in order to assess the need for the continued imposition of or an amendment to that measure to counteract the dumping which is causing injury, but also a prospective analysis of the probable development of the situation, as from the adoption of the review measure, in order to assess the likely effect of removing or amending that measure.
48. Regarding dumping, it follows from the provisions of the second subparagraph of Article 11(3) of the basic regulation, and in particular from the use of the term ‘continued imposition’, that, in the prospective examination, the institution concerned must check, in the light of the evidence adduced by the author of the review request, whether the dumping will not reappear or will not increase once more in the future, with the result that measures are no longer necessary to counteract the dumping. In other words, as has been observed in paragraph 36 above, in an interim review, regarding dumping, the requester is required to prove that the circumstances which were behind the dumping have changed in a lasting manner.
49. Consequently, the interim review of a request concerning the dumping requires both a retrospective examination and a prospective examination, both having to show that it is no longer necessary to continue to impose the measure in force. As is apparent from the considerations set out in paragraph 43 above, the need to carry out the review of a measure in force is subject to the finding (i) that the circumstances concerning the dumping have significantly changed and (ii) that those changes are lasting. Therefore, if either of those cumulative conditions is not satisfied, the institutions may conclude that there is a need to continue to impose that measure in force.
50. In this respect, it should be noted that the second and third subparagraphs of Article 11(3) do not contain any indication as regards the order in which those two examinations must be conducted. It is apparent from the case-law that, in essence, the practical effect of Article 11(3) of the basic regulation is broadly ensured by the fact that when assessing the need to continue existing measures, the institutions have a wide discretion, which includes the option of carrying out a prospective assessment (judgment in MTZ Polyfilms v Council, paragraph 34 above, EU:T:2009:441, paragraph 48). It follows that, if the prospective assessment does not establish the need to continue to impose the measures, it is unnecessary for the institutions to carry out a detailed retrospective assessment and, therefore, in respect of the dumping, to perform a detailed calculation of the dumping margin.
51. It follows from the considerations in paragraphs 43 to 50 above that, having regard to the wide discretion which the institutions have, in respect of an interim review pursuant to Article 11(3) of the basic regulation, limited to dumping, they may, if they consider it appropriate to do so, begin with the prospective examination and then, if they conclude that the change of circumstances on which the author of the review request relies and which resulted in a reduction or elimination of dumping found at the end of the original investigation procedure is not lasting, refrain, in the review procedure, from precisely calculating the dumping margin.
52. In the present case, as is apparent from recital 11 of the contested regulation, the institutions examined, in the context of that prospective analysis, the applicants’ arguments seeking to show that, in the light of the lasting nature of the change of circumstances on which they relied and which related solely to dumping, a reduction or removal of the measure in force was justified.
53. In the light of the wide discretion which the institutions had in assessing the request for an interim review of the measure at issue in the present case, it is clear that they were entitled to begin with a prospective examination of that request and, therefore, since that request was limited in scope to dumping, assess whether the alleged change of circumstances concerning the dumping was of a lasting nature. Since, as is apparent from recital 54 of the contested regulation, the institutions had concluded that the alleged change of circumstances, which related solely to dumping, was not lasting, they did not err in law or exceed the limits of their discretion, pursuant to Article 11(3) of the basic regulation, in holding, without first performing a precise calculation of the dumping margin, that the measures at issue had to be continued.
54. That conclusion cannot be called into question by the applicants’ arguments.
55. First, as regards their arguments relating to the successive stages which make up an interim review, the applicants claim that two main stages exist, to be carried out in a particular order: as a first step, by virtue of the finding of a change of circumstances, the determination of the new dumping margin, which requires a precise calculation of that margin; then, as a second step, the assessment of the lasting nature of that change. In this respect, it must be stated that those arguments are directly contradicted by the considerations set out in paragraphs 43 to 50 above and by the conclusion drawn in paragraph 51 above, with the result that those arguments must be rejected as unfounded.
56. Secondly, as regards the argument that the institutions neglected their duty to consider the need to amend the level of the measure in force, given that if dumping persisted throughout the review investigation period the level of dumping was lower, it should be stated that that argument is directly contradicted by the considerations set out in paragraphs 35 and 43 above. The objective of the interim review is to verify the need for the continued imposition of the anti‑dumping measures and, if it is to result in a decision to amend the anti‑dumping duty originally imposed, that examination requires the finding, on the basis of the evidence adduced by the author of the review request, not only of a significant change of circumstances regarding the dumping, but also that that change is of a lasting nature. However, in the present case, since the institutions had concluded that there was no such lasting nature, the fact that the dumping may, as the applicants claim, have been at a lower level during the review period than that found at the end of the original investigation procedure cannot suffice as a basis for amending the measure in force.
57. Thirdly, the Court cannot uphold the applicants’ arguments relating to the judgment in MTZ Polyfilms v Council, paragraph 34 above (EU:T:2009:441), namely, in particular, that (i) paragraph 49 of that judgment cannot, in the light of the provisions of Article 11(9) and Article 2 of the basic regulation, be interpreted as authorising the institutions not to precisely determine the dumping margin where they find that the change of circumstances is not of a lasting nature, and that (ii) the findings of the institutions, on the basis of such an interpretation, in review investigations are often not unbiased or objective.
58. On the one hand, those arguments are directly contradicted by the conclusion set out in paragraph 51 above.
59. On the other hand, neither in their written pleadings nor at the hearing did the applicants explain, in response to a question put by the Court, the reasons why they considered that the interpretation of paragraph 49 of the judgment in MTZ Polyfilms v Council, paragraph 34 above (EU:T:2009:441), as referred to in paragraph 57 above, and which they contest, leads to a lack of objectivity and impartiality in future review investigations. In any event, it must be noted that such an argument should be dismissed as unfounded. It should be remembered that a review procedure differs, in principle, from the original investigation procedure, which is governed by other provisions of the basic regulation (see, to that effect, judgments of 27 January 2005 in Europe Chemi-Con (Deutschland)
v Council, C‑422/02 P, ECR, EU:C:2005:56, paragraph 49, and 11 February 2010 in Hoesch Metals and Alloys, C‑373/08, ECR, EU:C:2010:68, paragraph 65) and the Court of Justice has already held that some of those provisions are not intended to apply to the review procedure, in the light of the general scheme and purposes of the system (see, to that effect, judgment in Hoesch Metals and Alloys, EU:C:2010:68, paragraph 77).
60. The objective difference between the two types of proceedings lies in the fact that imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an original investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping (judgment in Europe Chemi-Con (Deutschland)
v Council, paragraph 59 above, EU:C:2005:56, paragraph 50).
61. Therefore, in the light of the differences between the initial procedure and the review procedure, the institutions cannot be criticised for displaying a lack of objectivity and impartiality when, within the context of a review investigation, they begin the interim review by carrying out the prospective assessment.
62. Fourthly, as regards the argument that the conclusions drawn by the institutions regarding the applicants’ review request undermine the objectives of Article 11(1) of the basic regulation, it should be observed that those objectives can in no way be affected by the application of the provisions of Article 11(3) of the basic regulation, as interpreted in paragraphs 43 to 50 above.
63. The objective of Article 11(1) of the basic regulation is to ensure that an anti-dumping measure remains in force only to the extent that it is necessary to counteract the dumping. The objective of Article 11(3) of that regulation is, as mentioned in paragraph 43 above, to verify the need for the continued imposition of the anti-dumping measures. Therefore, it must be stated that, in the present case, since the institutions considered that the change of circumstances was not lasting, they were entitled, without in any way undermining the objective pursued by Article 11(1) of the basic regulation, to conclude that the continued imposition of the measure in force was necessary.
64. Fifthly, the argument relating to the fact that the findings on dumping were placed, in the contested regulation, under the heading on the examination of the ‘[l]asting nature of changed circumstances’ cannot succeed. Such an argument is irrelevant to proving an error of law or that the institutions exceeded the limits of their discretion. Moreover, this is all the more so in the present case because it is common ground that the Council did not perform a precise calculation of the dumping margin, on the ground that, as observed in paragraph 53 above, it considered that the alleged change of circumstances as regards dumping was not lasting.
65. In the light of all the foregoing considerations, the first complaint in the first plea, must be rejected as unfounded.
– The second complaint in the third plea, alleging manifest error of assessment in that the institutions concluded, concerning the dumping margin, that the change of circumstances was not lasting
66. In the first place, the applicants take the view that the institutions should have taken account of the four pieces of evidence which they produced regarding the lasting nature of the change of circumstances, namely (i) the findings, made following the refund procedure relating to IP1, that the applicants’ dumping margin was 0%, (ii) the fact that the weighted average export prices fully reflect the anti-dumping duty of 22.7% imposed following the original investigation, (iii) the fact that export prices were clearly higher during the review investigation period than during the period of the original investigation, and (iv) the fact that the dumping margin was substantially reduced during the review investigation period, since, as stated in recital 38 of the contested regulation, it amounted to ‘approximately 13%’, or even a lower margin of 10% if the Court were to find that a manifest error of assessment was made in the calculation of the export price, as invoked under the second plea.
67. In the second place, the applicants submit that recital 42 of the contested regulation is flawed by a manifest error of assessment. According to the applicants, the institutions concluded, in that recital, that there was extreme volatility in import prices, which prevented them from finding the change of circumstances to be of a lasting nature. However, in the applicants’ view, that volatility did not prevent the institutions from finding (i) that there was no dumping during IP1 and (ii) that the export prices during IP2 were significantly higher than those observed during the original investigation.
68. The Council and the Commission contest the applicants’ arguments.
69. As regards in particular the prospective examination concerning the dumping, as is apparent from the findings set out in paragraph 46 above, in the absence of specific methodologies or detailed rules which the institutions must apply in order to carry out the investigations provided for in Article 11(3) of the basic regulation, those institutions must only, at that stage of the examination of the request for an interim review, which seeks to determine whether it is necessary to modify the anti-dumping duty, take account ‘of all relevant and duly documented evidence’. Therefore, the institutions are required to give a ruling solely in the light of all the evidence, as produced by the requester in support of the request for a review as regards the lasting nature of the significant changes of circumstances which he invokes.
70. In the present case, it should be observed that, in their request for an interim review, the applicants claimed that the change of circumstances which resulted in the alleged reduction of the dumping margin was lasting for four reasons, which the Council rejected following an analysis set out in recitals 41 to 53 of the contested regulation.
71. In this respect, first, the applicants claimed that the structure of their sales had changed since the original regulation. According to the applicants, imports into the European Union were entrusted to the Swiss branch of RFAI and new structure of the sales was associated with the exploration of new growing markets. The applicants claimed that that structural change had contributed to higher export prices of ferro-silicon to all export markets, including that of the European Union. However, in recitals 42 and 43 of the contested regulation, the Council took the view that the applicants had not provided any substantiated evidence to show the link between the new corporate structure, exploration of new growing markets and higher prices on the EU market. On the contrary, according to the Council, the investigation determined that export prices had been extremely volatile both during the review investigation period and during IP1 and that they had followed the global market prices. Therefore, it concluded that the applicants had not adduced sufficient proof that not only was that structural change at the root of the alleged increase in prices on the market, but also that that increase could be expected to remain at similar levels in the future.
72. Secondly, the applicants claimed that the export prices to third country markets were in line with or even higher than their sales prices to the European Union and that significant investments had been made to better supply those markets. Therefore, a reduction or removal of the anti-dumping measures would not create an incentive to increase exports to the European Union or reduce prices thereof. The applicants also claimed that the new market opportunities would be in markets other than that of the European Union. However, in recitals 45 and 46 of the contested regulation, the Council considered first of all that, in so far as dumping had persisted during the review investigation period and the European Union remained one of the applicants’ traditional markets, the applicants had not provided any substantial evidence in support of their arguments relating to their market strategies directed to third countries and, next, that the export sales prices in the international market were volatile, with the result that the removal or reduction of the measures in force could not be envisaged.
73. Thirdly, the applicants claimed that the Russian domestic market remained one of their most important markets and that the demand for the like product in Russia was expected to grow. However, in recitals 48 and 50 of the contested regulation, the Council considered first of all that (i) even if those claims were well founded, it nevertheless remained the case that during the review investigation period the applicants had been dumping at a considerable margin and at volatile prices and (ii) the volumes sold by the applicants in the European Union during the review investigation period did not suggest that they had shifted away from that market or that they intended to do so in the near future. Next, the Council maintained that the applicants had provided no conclusive data to support the claim that the demand for the product concerned was expected to grow and that export prices of the group to which the applicants belonged would grow much faster than the cost of production.
74. Fourthly, the applicants claimed that they had been working at full capacity for several years, that they had no plans to increase their ferro-silicon production capacity and that there were no indications to the contrary. However, in recitals 52 and 53 of the contested regulation, the Council considered, in essence, that those claims were contradicted by some pieces of information gathered by the institutions. According to the Council, the institutions had noted a significant recovery of the applicants’ production capacities after the financial crisis of 2009, as compared to the year 2007, and the applicants themselves reported an increase of those capacities, of between 10 and 20%, as compared to the period prior to the 2009 financial crisis. In response to the applicants’ argument that they anticipated the financial crisis which took place in 2009 and, on that basis, reduced their production capacities, the Council contended that the 2009 financial crisis could not have impacted the applicants’ production capacity from 2007.
75. In concluding its examination of the four reasons given by the applicants in order to demonstrate the lasting nature of the change of circumstances on which they relied, the Council considered, in recital 54 of the contested regulation, that there was insufficient evidence that any changed circumstances concerning the pricing behaviour of the applicants were lasting. Consequently, the Council concluded that it would be premature and therefore unjustified, at that point in time, to lower the duty in force.
76. In the light of the Council’s conclusions, as set out in paragraphs 71 to 75 above, regarding the lack of lasting nature of the change of circumstances, the applicants, in support of their action, criticise the Council, in the first place, for not having taken into account the evidence referred to in paragraph 66 above in the examination of the lasting nature of the change.
77. As is apparent from the considerations set out in paragraph 36 above, it was for the applicants to provide sufficient evidence to show that the change of circumstances at the root of the alleged reduction of dumping was of a lasting nature. However, it must be stated that, although the evidence referred to in paragraph 66 above may be taken into consideration in the analysis of a change of circumstances, it cannot, as such, demonstrate the lasting nature of the alleged change of circumstances. None of that evidence, namely (i) the level of the dumping margin calculated following the refund procedure during IP1, (ii) the level of export prices observed at most during the review procedure and, (iii) the approximate assessment of the dumping margin during the review procedure, makes it possible to assess or a fortiori to demonstrate the lasting nature of the alleged change of circumstances. Therefore, in the absence of sufficient evidence concerning the lasting nature of that change, the applicants have not established that the institutions had wrongly considered that the alleged change of circumstances was not lasting, for the purpose of Article 11(3) of the basic regulation. Consequently, the first argument in support of the second complaint in the third plea is also not such as to demonstrate that the prospective analysis carried out by the Council, in recitals 41 to 53 of the contested regulation, following which it concluded that the applicants had not adduced sufficient evidence of the lasting nature of the alleged change of circumstances, is vitiated by a manifest error of assessment. It follows that, without there being any need to determine whether or not that evidence was taken into account by the Council, that argument must be rejected.
78. In the second place, the applicants claim that recital 42 of the contested regulation, in respect of the inferences drawn by the institutions from the price volatility as to the lasting nature of the alleged change of circumstances, is vitiated by a manifest error of assessment. In this respect, it should be stated that the arguments put forward by the applicants to show the existence of such an error — namely that that volatility did not prevent the institutions from concluding (i) that there was no dumping during IP1 and (ii) that the export prices during IP2 were significantly higher than those observed during the original investigation — do not contain information making it possible to assess or a fortiori to demonstrate, in respect of the request for an interim review, the lasting nature of the alleged change of circumstances.
79. First, under the refund procedure referred to in Article 11(8) of the basic regulation it is possible to request reimbursement of duties already paid if it is shown that the dumping margin on the basis of which duties were paid has been eliminated, or reduced to a level which is below the level of the duty in force. It is therefore exclusively retrospective, since it applies in specific cases to situations in which an anti-dumping duty has been paid although the import in question was not dumped or was dumped at a lower level. Therefore, in the present case, in the absence of additional evidence put forward by the applicants, the inferences drawn by the institutions as to the refund applications concerning IP1 are not capable of affecting the assessment of the lasting nature of the alleged change of circumstances in respect of the request for an interim review.
80. Secondly, it should be stated that, with regard to IP2, which is identical to the review investigation period, in recitals 42 and 43 of the contested regulation, the institutions did not simply state that export prices had been clearly higher in that period than the prices observed during the original investigation period, but they expressly added that, notwithstanding the higher level of those prices, those prices had nevertheless been ‘extremely volatile’, with the result that it was not possible to consider that ‘in the future [the] export prices to the EU will be high and not result in dumping’. Therefore, in the absence of evidence to show that, notwithstanding the extremely volatile nature of the export prices, the alleged change of circumstances was lasting, for the purpose of Article 11(3) of the basic regulation, the applicants are wrong to complain that the institutions concluded that that change was not lasting. This argument must therefore be rejected as unfounded.
81. Since the arguments set out in support of the second complaint in the third plea cannot be accepted, that complaint must be rejected in its entirety.
82. In the light of the conclusions reached in paragraphs 65 and 81 above, the first and third pleas must be rejected as unfounded, in so far as the applicants allege infringement of Article 11(3) of the basic regulation.
Infringement of Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation
83. In the first plea, the applicants claim that, by not establishing a precise amount for the dumping margin, the institutions infringed Article 11(9) of the basic regulation, read in conjunction with the first sentence of Article 2(12) of that regulation.
84. In that regard, they explain, first, that Article 11(9) of the basic regulation refers to Article 2(12) of that regulation, which — in its first sentence — contains a mandatory rule defining the dumping margin. Secondly, they submit that, in the contested regulation, rather than establishing a precise dumping margin, the institutions focussed on the question of whether the applicants continued to sell at dumped prices. Thirdly, the institutions did not attempt to demonstrate the existence of any change of circumstances, as provided for in Article 11(9) of the basic regulation, that would have allowed them to benefit from a strictly interpreted exception to the rule laid down in that article that the institutions have a duty to determine the amount of the dumping margin, on the basis that that determination might be regarded as a methodology within the meaning of that provision. Fourthly, the institutions wrongly stated, in recital 38 of the contested regulation, that they were not required to take a final position on the appropriate methodology for the calculation of the dumping margin, that is to say they did not have to choose between the methodology used in the original investigation and the new calculation methodology used in the general disclosure document, in breach of Article 11(9) of the basic regulation.
85. In the reply, the applicants explain that the concept of a ‘lasting nature’ is not defined in the basic regulation and that, therefore, that concept and the findings based upon it are incapable of affecting the applicability of express and imperative requirements, such as those contained in Article 11(9) and Article 2(12) of the basic regulation, namely the obligation on the part of the institutions to establish a dumping margin at the end of the interim review.
86. The Council and the Commission contest the applicants’ arguments.
87. First, it should be noted that, in recital 38 of the contested regulation, the Council stated that it was unnecessary to decide whether it was necessary to calculate the dumping margin precisely. The Council contended, inter alia, that there was insufficient evidence to consider that, in respect of the dumping margin, the change of circumstances during the review investigation period was lasting.
88. Secondly, in essence, the question raised by the applicants is whether the Council’s approach, in recital 38 of the contested regulation, constitutes an infringement of Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation. Therefore, it should be determined whether those latter provisions preclude an approach which, however, as was held in paragraph 50 above, is authorised under Article 11(3) of that regulation.
89. In this respect, it should be remembered that Article 2(11) and (12) of the basic regulation concern the method of calculating the dumping margin. In particular, pursuant to Article 2(12) of the basic regulation, the dumping margin is the amount by which the normal value exceeds the export price.
90. As regards the relationship between Article 11(3) of the basic regulation and Article 11(9) of that regulation, first, it should be noted that the changes of circumstances respectively referred to in those provisions differ by their object. The change of circumstances for the purpose of Article 11(3) of the basic regulation concerns dumping and injury. By contrast, the change of circumstances referred to by the provisions of Article 11(9) of that regulation concerns the parameters used, in accordance in particular with the provisions of Article 2(11) and (12) of that regulation, in respect of the methodology chosen, in the original investigation which led to the imposition of the duty, in order to calculate the dumping margin. The change of circumstances found, in accordance with the provisions of Article 11(9) of the basic regulation, may result inter alia from the loss of reliability of such a parameter used in the original investigation.
91. Secondly, as recalled in paragraphs 43, 44 and 50 above, when assessing the need to continue existing measures, the institutions have a wide discretion, which includes the option of carrying out a prospective assessment. It is only when the institutions have assessed that need and decided to amend the existing measures that they are bound, when determining the fresh measures, by the provision in Article 11(9) of the basic regulation requiring them to apply the methodology prescribed by Article 2 of that regulation.
92. As is apparent from paragraph 49 of the judgment in MTZ Polyfilms v Council, paragraph 34 above (EU:T:2009:441), as referred to in paragraph 43 above, Article 11(9) of the basic regulation applies only once the existence of a lasting change of circumstances has been found, in accordance with the provisions of Article 11(3) of that regulation, and it has been decided, pursuant to those provisions, to amend the existing measures, with the result that it proves necessary to recalculate the amount of the dumping margin. Conversely, where the institutions have concluded that there was no lasting change of circumstances, Article 11(9) of the basic regulation does not apply. It follows that, in the present case, since the institutions had concluded that the change of circumstances invoked by the applicants was not lasting, that latter provision does not apply and, in any event, the reliance on it does not invalidate the Council’s approach as described in recital 38 of the contested regulation.
93. Therefore, the applicants are manifestly wrong to complain that the institutions did not (i) precisely determine the dumping margin at the end of the interim review and (ii) choose between the calculation methodology used in the original investigation and the one used in the general disclosure document. Those arguments are based on the provisions of Article 11(9) of the basic regulation, but those provisions are not applicable in the present case.
94. Moreover, it must be held that the fact that the concept of a ‘lasting nature’ is not explicitly mentioned in Article 11(3) of the basic regulation has no effect on the question whether Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation, imposes on the institutions an obligation to precisely calculate a dumping margin at the end of the interim review. As is apparent from the interpretation of the provisions of Article 11(3) of the basic regulation, as set out in paragraphs 43 to 50 above, that provision must be interpreted, in respect of dumping, as enabling the institutions to carry out both a retrospective and prospective examination. As is apparent from the considerations set out in paragraphs 50 and 51 above, if, at the end of the prospective examination, the institutions conclude that the change of circumstances is not lasting, they may refrain from precisely determining the dumping margin.
95. In the light of the foregoing considerations, the first plea must be rejected as unfounded, in so far as the applicants allege infringement of Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation.
Infringement of the rights of the defence
96. The applicants claim that the Council and the Commission infringed their rights of defence since, as at the date on which the present application was made, the Commission had not disclosed to them the final calculation of the dumping margin, even though that calculation served as the basis for the findings relating to the continuation and existence of dumping, the lasting nature of the change of circumstances, and also the final conclusions of the partial interim review. They explain that, if the Commission had communicated that calculation, this would have allowed them to defend their rights more effectively with regard to the dumping calculation and the findings of dumping as a whole, including the argument relating to the calculation methodology used in the original investigation, which could have had a significant impact on their legal situation.
97. The Council contests the applicants’ arguments.
98. According to the case-law, the requirements stemming from the right to a fair hearing must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them (judgment of 27 June 1991 in Al‑Jubail Fertilizer
v Council, C‑49/88, ECR, EU:C:1991:276, p aragraph 15). In particular, 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 (judgment in Al-Jubail Fertilizer v Council, EU:C:1991:276, paragraph 17). Those requirements have also been made clear in Article 20 of the basic regulation, paragraph 2 of which provides that complainants, importers and exporters and their representative associations, and representatives of the exporting country ‘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’.
99. In the present case, it is sufficient to note that the final calculation of the dumping margin did not constitute a consideration or an essential fact. As observed in paragraph 87 above, the Council stated, in recital 38 of the contested regulation, that it was unnecessary to rule on the matter of the need to calculate an individual dumping margin for each of the applicants, since, in any case, there was insufficient evidence to consider that, so far as concerns the dumping margin, the change of circumstances during the review investigation period was lasting. As is apparent from paragraphs 76 and 78 above, since the applicants have not produced evidence to show that the alleged change of circumstances was lasting, that finding of the Council is not vitiated by illegality, and it was therefore entitled, without having to precisely calculate the dumping margin, to decide to maintain the measures in force. Therefore, it must be stated that, even assuming that the supposed infringement of the rights of the defence alleged by the applicants were to be established, as such an infringement concerns the method of calculating the dumping margin, it could not lead to an annulment of the contested regulation, since, as noted above, the Council based its decision on the finding that the alleged change of circumstances was not lasting.
100. Moreover, it should be observed that, on 28 October 2011, the Commission disclosed its dumping calculation to the applicants as part of the general disclosure document. The applicants submitted their observations on that document by letter of 14 November 2011. In those observations, the applicants devoted considerable argument to the calculation of the dumping margin. Therefore, it must be held that the applicants exercised their rights of defence, even if the Council ultimately decided not to definitively establish the dumping margin.
101. In the light of the foregoing considerations, the first plea must be rejected as unfounded in so far as the applicants invoke an infringement of their rights of defence.
102. In the light of the conclusions set out in paragraphs 82, 95 and 101 above, the first and third pleas must be rejected in their entirety.
The second plea in law, relating to the calculation of the export price
103. The applicants submit, in essence, that the institutions made a manifest error of assessment by finding that they, together with RFAI, did not constitute a single economic entity within the meaning of case-law, and, as a result, by taking the view that an adjustment of the export price, corresponding to the selling, general and administrative costs and the profit margin of RFAI, had to be made pursuant to Article 2(9) of the basic regulation.
104. The Council and Euroalliages contest the applicants’ arguments.
105. Since, as established above, the institutions were fully entitled to refrain from precisely determining the dumping margin, it must be stated that the second plea is ineffective. The second plea alleges, in essence, an illegality vitiating the calculation of the export price within the context of the determination of the dumping margin.
106. Therefore, the second plea must be rejected as ineffective.
107. In the light of the conclusions set out in paragraphs 102 and 106 above, the action must be rejected in its entirety.
Costs
108. 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.
109. In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently the Commission, which intervened in support of the form of order sought by the Council, must bear its own costs.
110. Euroalliages is to bear its own costs, in accordance with the third subparagraph of Article 87(4) of the Rules of Procedure.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF) 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;
4. Orders Euroalliages to bear its own costs.