62021TJ0748_RES
Case T‑748/21
Hangzhou Dingsheng Industrial Group Co., Ltd and Others
v
European Commission
Judgment of the General Court (Fourth Chamber), 21 June 2023
(Dumping – Extension of the definitive anti-dumping duty imposed on imports of certain aluminium foil originating in China to imports of certain aluminium foil consigned from Thailand – Anti-circumvention investigation – Circumvention – Article 13 of Regulation (EU) 2016/1036 – Sufficient evidence – Manifest error of assessment – Obligation to state reasons)
Common commercial policy – Protection against dumping – Circumvention – Opening of an investigation – Conditions – Whether information contained in the complaint sufficient – Obligations on the Commission in assessing that information – Scope
(European Parliament and Council Regulation 2016/1036, Arts 5(2) and (3) and 13(3))
(see paragraphs 27-34, 100-102)
Common commercial policy – Protection against dumping – Discretion of the institutions – Judicial review – Limits
(see paragraph 35)
Common commercial policy – Protection against dumping – Circumvention – Meaning – Change in the pattern of trade between third countries and the Community – Relevant evidence
(European Parliament and Council Regulation 2016/1036, Art. 13(1))
(see paragraphs 44-51)
Judicial proceedings – Introduction of new pleas during the proceedings – Conditions – Plea based on matters which have come to light in the course of the procedure – None – Amplification of an existing plea – No amplification – Inadmissibility
(Rules of Procedure of the General Court, Art. 84(1))
(see paragraphs 54, 55, 58)
Common commercial policy – Protection against dumping – Circumvention – Meaning – Need to establish a requirement as to the replacement of imports originating in countries subject to the anti-dumping duty by those from circumvention countries – None
(European Parliament and Council Regulation 2016/1036, Art. 13(1))
(see paragraph 61)
Common commercial policy – Protection against dumping – Circumvention – Determination of circumvention – Burden of proof – Proof of circumvention on the basis of a body of evidence – Whether permissible
(European Parliament and Council Regulation 2016/1036, Art. 13(1))
(see paragraphs 64-66, 100)
Common commercial policy – Protection against dumping – Circumvention – Meaning – Undermining of the remedial effects of the duty in terms of the prices and/or the quantities of the like products – Alternative criteria
(European Parliament and Council Regulation 2016/1036, Art. 13(1))
(see paragraph 74)
Common commercial policy – Protection against dumping – Circumvention – Meaning – Evidence of dumping in relation to the normal value previously established for the like product – Determination of the normal value – Account taken of the normal value established previously for a single product from among the products referred to – Whether permissible – Conditions
(European Parliament and Council Regulation 2016/1036, Art. 13(1))
(see paragraphs 86-95)
Acts of the institutions – Statement of reasons – Obligation – Scope – Regulation extending anti-dumping duties – Undermining of the remedial effects of the duty in terms of the prices and/or the quantities of the like products
(Art. 296 TFEU; European Parliament and Council Regulation No 2016/1036, Arts 13 and 1)
(see paragraphs 105-111, 121-133)
Résumé
In the context of the European Union’s trade protection policy, in 2009 the Council adopted Regulation (EC) No 925/2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China. (
1
)
Those anti-dumping measures were extended by as regards the People’s Republic of China by Commission Implementing Regulation 2015/2384. (
2
) Those measures were extended to other categories of aluminium foil by Commission Implementing Regulation 2017/271. (
3
)
In 2020, following a complaint lodged by an anonymous user, the Commission initiated an investigation concerning the possible circumvention of those anti-dumping measures, following which it adopted Implementing Regulation 2021/1474 (
4
) extending those measures to imports of certain aluminium foil (‘the product concerned’ (
5
)) consigned from Thailand, whether declared as originating in Thailand or not.
Hangzhou Dingsheng Industrial Group Co., Ltd, Dingheng New Materials Co., Ltd and Thai Ding Li New Materials Co., Ltd belong to the Dingsheng Group, a Chinese multinational active in the aluminium products manufacturing sector also active in Thailand. They brought an action for annulment of Implementing Regulation 2021/1474, complaining that the Commission, inter alia, confined itself to the allegations set out in the complaint in order to initiate its investigation, without ensuring that it had sufficient information, in the light of the requirements of Regulation 2016/1036. (
6
)
The Court dismisses the action, while taking the opportunity to clarify the value of the factors capable of justifying the initiation of an anti-circumvention investigation.
Findings of the Court
As a preliminary point, the Court recalls that, in accordance with Article 13(1) of the basic regulation, four conditions are required in order to determine the existence of circumvention. First, there must be a change in the pattern of trade between a third country and the European Union or between individual companies in the country subject to measures and the European Union. Second, that change must stem from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty. Third, there must be evidence of harm to EU industry or that the remedial effects of the anti-dumping duty are being undermined in terms of the prices or quantities of the like product. Fourth, there must be evidence of dumping in relation to the normal values previously established for the like product.
Moreover, it is apparent from Article 5(3) of the basic regulation, which also applies to an anti-circumvention investigation, (
7
) that the Commission must, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint to determine whether there is sufficient evidence to justify the initiation of an investigation.
In that regard, the Court notes that the quantity and quality of the evidence necessary to meet the criteria of the sufficiency of the evidence for the purpose of initiating an investigation is different from that which is necessary for the purpose of a final determination of whether there is circumvention. It is therefore not a requirement that the complaint contain an analysis of any information provided or that that information constitute irrefutable proof of the existence of the facts alleged. Moreover, the sufficiency of the information depends on the circumstances of each case and must, consequently, be assessed on a case-by-case basis.
In the light of those considerations, the Court rejects, first of all, the complaint alleging a lack of sufficient evidence in the complaint to demonstrate the change in the pattern of trade.
On that point, the Court notes that the first condition is worded in very general terms which, consequently, leave a broad discretion to the EU institutions to determine its nature and characteristics.
In the present case, in the first place, it is apparent from the complaint that, between 2017 and 2019, imports of aluminium foil to the European Union from Thailand increased significantly. Although those imports were not limited to the products concerned, it was likely that the proportion of those imports in that increase was just as substantial. Thus, since the imposition of an anti-dumping duty may be based on a risk of circumvention where that risk is genuine and not merely hypothetical, the Commission could find that such a risk existed at the time of the initiation of the investigation. In the second place, the complaint contained statistics relating, for the period from 2015 to 2019, to imports into Thailand of the raw material necessary for the production of the products concerned from China. Those data reveal an increase in the volumes imported throughout that period, with the result that the Commission did not make a manifest error of assessment in considering, in the light of that evidence, that those imports were capable of supporting the production of the products concerned in Thailand so that they could be exported subsequently to the European Union, in circumvention of the anti-dumping duty imposed on exports of those products from China.
In the third place, the applicants’ submission that it has not been demonstrated that exports from China to the European Union had been replaced by exports from Thailand cannot be upheld. The Court observes that the substitution of imports originating in the country subject to the anti-dumping duty by those from the country of circumvention was not among the conditions to be met in order to establish the existence of circumvention within the meaning of Article 13(1) of the basic regulation.
In the fourth and last place, although the Commission has not shown that it obtained more detailed data for the period 2019-2020, the Court considers that it was not required to do so, since the complaint contained sufficient evidence to support the conclusion that there was circumvention and significant assembly operations of the product concerned in Thailand.
Next, the Court rejects the complaint that there was insufficient evidence in the complaint relating to the third condition, namely the undermining of the remedial effects of the original duties, in so far as the complaint did not contain sufficient information concerning the calculation of the non-injurious price.
In that regard, the Court notes that it follows from Article 13(1) of the basic regulation that the undermining of remedial effects may be established either on the basis of the price of the like products or on the basis of the quantity of such products, the two parameters being alternative. It follows that, in the present case, the Commission could refer solely to the parameter relating to imported quantities of similar products, without being required also to refer to the prices of such products.
Lastly, the Court rejects the complaint alleging a lack of sufficient evidence in relation to the fourth condition, namely the existence of dumping in relation to the normal value previously established for the like products.
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. It follows that the complaint took into account the normal value established previously for the only product referred to in that regulation.
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 Commission may validly consider that it has sufficient evidence to justify the initiation of the investigation where the evidence available to it is capable of establishing the existence of dumping of the product as a whole, and not only of an insignificant subcategory of that product. Since the applicants have not claimed that the product referred to in Implementing Regulation 2015/2384 constitutes an insignificant subcategory of the products concerned, the Commission could conclude that the evidence relating to the dumping of that product was sufficient to justify the initiation of the investigation.
Second, the products concerned must be regarded as being like the product referred to in Implementing Regulation 2015/2384. 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.
As regards the determination of the export price, although it was determined by reference to a wide variety of products which are not limited to the products concerned, the Court concludes that, in any event, it is apparent from the analysis of the foregoing that the Commission could, without making a manifest error of assessment, conclude that the complaint contained sufficient evidence, assessed as a whole, and rely on a body of consistent evidence in order to decide to initiate the anti-dumping investigation.
In the light, inter alia, of those considerations, the Court dismisses the applicants’ action in its entirety.
(
1
)	Regulation (EC) No 925/2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (OJ 2009 L 262, p. 1).
(
2
)	Commission Implementing Regulation (EU) 2015/2384 of 17 December 2015 imposing a definitive anti-dumping duty on imports of certain aluminium foils originating in the People’s Republic of China and terminating the proceeding for imports of certain aluminium foils originating in Brazil following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2015 L 332, p. 63).
(
3
)	Commission Implementing Regulation (EU) 2017/271 of 16 February 2017 extending the definitive anti-dumping duty imposed by Council Regulation No 925/2009 on imports of certain aluminium foil originating in the People’s Republic of China to imports of slightly modified certain aluminium foil (OJ 2017 L 40, p. 51).
(
4
)	Commission Implementing Regulation (EU) 2021/1474 of 14 September 2021 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) 2015/2384 and Implementing Regulation (EU) 2017/271 on imports of certain aluminium foil originating in the People’s Republic of China to imports of certain aluminium foil consigned from Thailand, whether declared as originating in Thailand or not (OJ 2021 L 325, p. 6).
(
5
)	The products concerned by that regulation were those referred to in Regulation No 925/2009 and Implementing Regulation 2017/271/
(
6
)	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, ‘the basic regulation’).
(
7
)	Article 13 of the basic regulation, entitled ‘Circumvention’, provides, in the third subparagraph of Article 13(3) that ‘the relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article’.