62015CO0345_EN
Parties
Grounds
Operative part
Parties
In Case C‑345/15 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 July 2015,
Chelyabinsk electrometallurgical integrated plant OAO (CHEMK),
established in Chelyabinsk (Russia),
Kuzneckie ferrosplavy OAO (KF),
established in Novokuznetsk (Russia),
represented by B. Evtimov, lawyer, and D. O’Keefe, Solicitor,
appellants,
the other parties to the proceedings being:
Council of the European Union,
represented by J.-P. Hix, S. Boelaert and E. McGovern, acting as Agents,
defendant at first instance,
European Commission,
represented by J.-F. Brakeland and M. França, acting as Agents,
Euroalliages,
established in Brussels (Belgium),
interveners at first instance,
THE COURT (Eighth Chamber),
composed of D. Šváby, President of the Chamber, M. Safjan and M. Vilaras (Rapporteur), Judges,
Advocate General: Y. Bot,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following
Grounds
Order
1. By their appeal, Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF) seek to have set aside the judgment of the General Court of the European Union of 28 April 2015 in CHEMK and KF v Council
(T‑169/12, ‘the judgment under appeal’), by which the General Court dismissed their action for partial annulment 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, ‘the regulation at issue’), in so far as it concerns the appellants.
Legal context
2. Article 11(3) and (9) of 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, ‘the basic regulation’) provides:
‘3. 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.
...
9. 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
3. The background to the dispute and the content of the regulation at issue are set out in paragraphs 5 to 18 of the judgment under appeal. For the purposes of the present proceedings, they can be summarised as follows.
4. The appellants’ imports were covered by Council Regulation (EC) No 172/2008 of 25 February 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). They therefore submitted, under Article 11(3) of the basic regulation, a request for partial interim review relating solely to dumping. They claimed that the circumstances on the basis of which regulation No 172/2008 had been adopted had changed and that those changes were of a lasting nature.
5. At the end of the interim review relating to the period from 1 October 2009 to 30 September 2010 (‘the investigation and review period’), the Council of the European Union did not amend, in the regulation at issue, the level of the anti-dumping duty set in regulation No 172/2008.
6. In the regulation at issue, the Council recalled, first, that when assessing the need to continue existing measures, the EU institutions have a wide discretion, which includes the option of carrying out a prospective assessment of the pricing policy of the exporters concerned. Second, it set out the EU institutions’ considerations on whether the appellants may have still been dumping on the European Union market during the investigation and review period and roughly assessed, in that regard, the dumping margin at ‘approximately 13%’. Third, having examined the appellants’ arguments in this connection, it concluded that there was insufficient evidence of the allegedly lasting nature of the changes of circumstances relied on by the appellants, whatever the amount of the dumping margin during the investigation and review period and that, consequently, it would be premature and therefore unjustified, at that point in time, to reduce the anti-dumping duty in force.
The procedure before the General Court and the judgment under appeal
7. By application lodged at the General Court Registry on 10 April 2012, the appellants brought an action for annulment of the regulation at issue in so far as it concerned the appellants.
8. In support of their action, the appellants put forward three pleas in law. The first plea in law alleged infringement of Article 11(9) of the basic regulation, read in conjunction with the first sentence of Article 2(12) thereof, that the EU institutions had erred in law and exceeded their margin of discretion in the application of Article 11(3) of the basic regulation and infringement of their rights of defence. The second alleged a manifest error of assessment by those institutions in the calculation of the export price for the purposes of determining the dumping margin during the review investigation. The third alleged an infringement of Article 11(3) of the basic regulation and a manifest error of assessment.
9. First, the General Court examined together the first and third pleas in law, inasmuch as they complained that the Council had infringed, first, Article 11(3) of the basic regulation, second, Article 11(9) of that regulation, read in conjunction with Article 2(12) thereof and, third, the appellants’ rights of defence. The General Court then examined the second plea in law in the action.
10. In the examination of the alleged infringement of Article 11(3) of the basic regulation, the General Court distinguished two complaints, which it examined in turn.
11. In response to the first complaint, alleging an error of law as to the scope of the EU institutions’ discretion under Article 11(3) of the basic regulation, the General Court held, in paragraph 43 of the judgment under appeal, that those institutions had first to assess the need for the continued imposition of the existing measures and, on that basis, to find a not only significant but also lasting change of circumstances with regard to the dumping, and that it was only as a second step, once those institutions had assessed the need for the continued imposition of the existing measures and decided to amend those measures, that they were bound, when determining the fresh measures, by the provisions in Article 11(9) of the basic regulation, which confers 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 imposition of anti-dumping duty.
12. The General Court held, in paragraphs 45 to 48 of the judgment under appeal, that the institution concerned had to check, in the framework of a prospective examination and in the light of the evidence adduced by the author of the review request, who was required to prove that the circumstances behind the dumping had changed in a lasting manner, whether the dumping would not reappear or would not increase once more in the future, with the result that measures would no longer be necessary to counteract the dumping.
13. The General Court concluded, in paragraphs 49 to 53 of the judgment under appeal, that since the conditions as to significant change of circumstances and the lasting nature of that change were cumulative, the EU institutions could begin with the prospective examination, in order to assess whether the alleged change of circumstances concerning dumping was of a lasting nature, and, if they concluded that this was not the case, they could refrain, in the review procedure, from precisely calculating the dumping margin.
14. The General Court rejected, in paragraphs 54 to 65 of the judgment under appeal, the various arguments put forward by the appellants in relation to the alleged error by the EU institutions in having failed to calculate precisely the dumping margin.
15. In response to the second complaint, that the EU institutions had made a manifest error of assessment in finding that the change of circumstances relied on was not of a lasting nature, the General Court examined all the evidence adduced by the appellants and, in paragraphs 66 to 81 of the judgment under appeal, it rejected the four reasons put forward by them as to why the change of circumstances was lasting. It held, in essence, that it was not possible to consider that, in the future, the export prices to the European Union would be higher and would not result in dumping, on the ground that the appellants had not adduced evidence to that effect, whereas it had been found in the regulation at issue that, during the investigation and review period, they had been dumping at a considerable margin and at volatile export prices.
16. In the examination of the alleged infringement of Article 11(9) of the basic regulation, read in conjunction with Article 2(12) thereof, the General Court held, in paragraphs 83 to 95 of the judgment under appeal, that it is only when the need for the continued imposition of existing measures has been assessed and the EU institutions have decided to amend them 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 in Article 2 of that regulation. Since, at the end of the prospective examination, those institutions concluded that the change of circumstances was not lasting, the General Court held that they could refrain from precisely determining the dumping margin.
17. Lastly, the General Court rejected the allegation as to infringement of the appellants’ rights of defence, and dismissed as ineffective the second plea in law relating to the calculation of the export price because, according to the General Court, the EU institutions were fully entitled to refrain from precisely determining the dumping margin, of which the calculation of the export price was one element.
Forms of order sought by the parties before the Court of Justice
18. The appellants claim that the Court should:
– set aside the judgment under appeal;
– give final judgment in the matter, where the state of the proceedings so permits;
– in the alternative, refer the case for reconsideration to the General Court;
– order the Council to pay the costs of the proceedings before the Court as well as the costs of the proceedings before the General Court;
– order any interveners to bear their own costs.
19. The Council contends that the Court should:
– dismiss the appeal and
– order the appellants to pay the costs of the proceedings in both instances.
20. The Commission contends that the Court should:
– dismiss the appeal as being inadmissible and, in any event, unfounded and
– order the appellants to pay the costs.
The appeal
21. Under Article 181 of its Rules of Procedure, where the 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 that appeal in whole or in part.
22. It is appropriate to apply that provision in the context of the present appeal.
23. The appellants put forward two grounds of appeal in support of their appeal.
24. First, they submit that the General Court misinterpreted Article 11(3) of the basic regulation and erred in law when it rejected the plea in law that Article 11(9) of that regulation and its reference to Article 2 thereof require the EU instit utions to calculate a dumping margin in all interim reviews. Second, they claim that the General Court’s interpretation of the judgment of 17 November 2009 in MTZ Polyfilms v Council
(T‑143/06, EU:T:2009:441) is wrong in law, inasmuch as that judgment does not support the EU institutions following an order in the partial interim review process that gives those institutions the right to terminate a duly initiated investigation without having calculated the dumping margin.
25. Both the Council and the Commission contend that the appeal must be dismissed on the ground that the grounds of appeal put forward by the appellants are ineffective, since the judgment under appeal is based on other grounds that are not contested in the appeal.
26. It should be recalled that, in accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, judgments of 29 April 2004 in Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 68, and 29 November 2012 in United Kingdom
v Commission, C‑416/11 P, EU:C:2012:761, paragraph 45).
27. In the present case, by their grounds of appeal, the appellants submit, in essence, that the General Court erred in law by endorsing the reasoning of the Council in the regulation at issue, which consists in accepting that, in a partial interim review limited to dumping, there is no need to calculate a dumping margin where, at the end of the examination of the need for the continued imposition of existing measures, the EU institutions reach the conclusion that the change of circumstances relied on is not of a lasting nature.
28. It should be noted that the General Court held, in paragraphs 45 to 53 of the judgment under appeal, approving the methodology followed by the Council in the regulation at issue, that, in order for it to be necessary to amend the existing measures, in the first stage of the interim review investigation both a retrospective and a prospective examination must be carried out to determine whether it is necessary to continue to impose those measures and that the need to carry out a review of those measures is subject to the finding that the circumstances concerning the dumping have significantly changed and that those changes are of a lasting nature. It inferred that if either of those cumulative conditions is not satisfied, the EU institutions may conclude that there is a need to continue to impose the existing measures.
29. In paragraphs 66 to 81 of the judgment under appeal, the General Court examined the various circumstances relied on by the appellants as representative of a change concerning the dumping, and it held that the Council was correct in finding that they had not adduced sufficient evidence of the lasting nature of the change of circumstances concerning the dumping.
30. In their appeal, the appellants have not called in question the conclusion, set out in paragraph 43 of the judgment under appeal, that the EU institutions must find a lasting change of circumstances before amending the existing measures. On that point, they state merely that the General Court wrongly interchanged ‘the assessment of the need for continued imposition of the existing measures’ with the prospective analysis of the lasting nature of the change of circumstances. The sole purpose of such an argument is in fact to criticise the part of the judgment under appeal in which the General Court held that the order in which the assessment of the need for the continued imposition of the measures had been carried out by the EU institutions did not constitute an error of law.
31. It must be recalled that, according to the Court’s case-law, the review which the EU institutions must conduct in this regard may lead them 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 (judgment of 18 September 2014 in Valimar, C‑374/12, EU:C:2014:2231, paragraph 55).
32. In this connection, the appellants have accepted that the discretionary considerations that may be submitted for evaluation by the EU institutions include a prospective inquiry into the lasting nature of the relevant changed circumstances.
33. In addition, the appellants claim in their appeal that, ‘without ... due evidence of the Appellants’ pricing conduct during the review investigation period, it would not be possible to properly assess the need for continued imposition of the existing measures, as well as the discretionary considerations such as the lasting effect, significance of changes or [their] prospective pricing behaviour’. However, they do not draw therefrom any conclusions on the obligation to determine the lasting nature of the changes of circumstances for amending the existing measures.
34. Furthermore, the appellants state merely that the General Court considered that none of the ‘duly documented evidence on reduced dumping margins [they] had submitted was adequate or needed to be taken into account by the Council’.
35. In those circumstances, having regard to their content, the two grounds of appeal submitted in support of the appeal cannot enable the appellants to have the judgment under appeal set aside, since the operative part of that judgment is based on other grounds not contested in the appeal.
36. Therefore, pursuant to Article 181 of the Rules of Procedure, the appeal must be dismissed.
Costs
37. In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.
38. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
39. Since the Council has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Council.
40. In accordance with Article 140(1) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 184(1) thereof, the Commission is to bear its own costs.
Operative part
On those grounds, the Court (Eighth Chamber) hereby orders:
1. The appeal is dismissed.
2. Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF) are to bear their own costs and to pay those incurred by the Council of the European Union.
3. The European Commission is to bear its own costs.