62016TJ0301_RES
Case T‑301/16
Jindal Saw LtdandJindal Saw Italia SpA
v
European Commission
Judgment of the General Court (First Chamber, Extended Composition), 10 April 2019
(Dumping — Imports of tubes and pipes of ductile cast iron originating in India — Implementing regulation (EU) 2016/388 — Regulation (EC) No 1225/2009 (replaced by Regulation (EU) 2016/1036) — Dumping margin — Determination of the export price — Association between exporter and importer — Reliable export price — Construction of the export price — Reasonable margin for selling, general and administrative costs — Reasonable margin for profit — Injury to the Union industry — Calculation of price undercutting and the injury margin — Causal link — Access to confidential data of the anti-dumping investigation — Rights of the defence)
Judicial proceedings — Measures of inquiry — Production of confidential data collected by the Commission in the framework of an anti-dumping investigation — Measure of organisation of procedure granting the applicant access to that data for circumscribed purposes — Submission of new complaints based on that data but exceeding the scope of the measure of organisation of procedure — Inadmissibility
(Rules of Procedure of the General Court, Arts 84, 88 to 92 and 103; Council Regulation No 1225/2009, Art. 19)
(see paragraphs 34-55)
Common commercial policy — Protection against dumping — Course of the investigation — Obligation of the Commission to disclose information to the parties concerned — Scope — Rights of defence — Infringement — Conditions — Undertaking concerned better able to ensure its defence in the absence of procedural irregularity
(Council Regulation No 1225/2009, Art. 20)
(see paragraphs 63-83)
Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Conditions — Association between exporter and importer — Rebuttable presumption that the export price actually paid is not reliable — Burden of proof on the undertakings involved — Discretion of the institutions
(Council Regulation No 1225/2009, Art. 2(8) and (9))
(see paragraphs 90-99, 110-124)
Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Establishment of a reliable export price at the EU frontier level
(Council Regulation No 1225/2009, Art. 2(9))
(see paragraphs 134-137)
Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Discretion of the institutions — Challenge to the level of adjustments — Burden of proof
(Council Regulation No 1225/2009, Art. 2(9))
(see paragraphs 147-164)
Common commercial policy — Protection against dumping — Injury — Establishing a causal link — Obligations of the institutions — Calculation of the price undercutting of the imports at issue — Obligation to make a fair comparison between the price of the product concerned and the price of the like product of the EU industry — Comparison of prices obtained at different levels of trade — Infringement
(Council Regulation No 1225/2009, Art. 3)
(see paragraphs 172-195)
Résumé
By its judgment in Jindal Saw and Jindal Saw Italia v Commission (T‑301/16), (
1
) of 10 April 2019, the General Court annulled Regulation 2016/388 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron originating in India (
2
) in so far as it concerns Jindal Saw Ltd. That definitive anti-dumping duty was imposed by the Commission following an investigation initiated in response to complaints lodged by three companies of the Saint-Gobain Pam group, the main producer in the European Union. The first applicant, Jindal Saw, is one of two Indian exporting producers that cooperated in the Commission’s anti-dumping investigation. Jindal Saw Italia, the other applicant, is a subsidiary of Jindal Saw in the European Union.
First, the Court rejected as inadmissible the additional observations that the applicants submitted after examining certain confidential documents relating to the anti-dumping investigation, to which they had been granted limited access following the adoption of measures of inquiry and measures of organisation of procedure by the Court. In that regard, the Court pointed out that access to that data, whose classification as confidential data within the meaning of Article 19 of the basic anti-dumping regulation (
3
) was not contested and whose disclosure the applicants could not claim pursuant to that regulation, had been granted for the purpose of verifying the explanations provided in the Commission’s defence in relation to a clerical error made during the administrative procedure. Since the applicants did not dispute the veracity of those explanations but claimed to have found other errors that supported some of their complaints, the Court specified that the present case could not be assimilated to a situation in which the Court had decided, pursuant to Article 103(3) of the Rules of Procedure, to generally bring to the attention of a main party confidential information or material produced by the other main party. Consequently, the applicants could not claim to have had general access to new information, the discovery of which would have enabled them to put forward new pleas or complaints which should have been regarded as admissible under Article 84 of the Rules of Procedure.
As regards the merits of the case, the applicants had put forward a number of pleas in law alleging various infringements of the basic anti-dumping regulation, including a plea that was upheld by the Court, concerning errors made by the Commission in determining the existence of injury suffered by EU industry. In that regard, the Court recalled that the obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic anti-dumping regulation, requires a fair comparison to be made — which must therefore be made at the same level of trade — between the price of the product concerned and the price of the like product of the EU industry when sold in the territory of the European Union. However, investigation of the case had shown that the Commission had relied on the selling prices made by the selling entities linked to the main EU producer in order to determine the price of the like product of the EU industry while not taking into account the prices of sales of Jindal Saw’s selling entities to determine the price of the product concerned produced by Jindal Saw, even though both the main EU producer and Jindal Saw made a very significant part of their sales in the EU through selling entities. Thus, the Court found that there had been a breach of Article 3(2) of the basic anti-dumping regulation in so far as the Commission had performed the undercutting calculation by comparing the prices of the products in question at different levels of trade. Since the error found in the undercutting calculation was likely to call into question the legality of the contested regulation, by invalidating the Commission’s entire analysis of causation, the Court held that the regulation should be annulled in so far as it concerns Jindal Saw.
(
1
)	The present judgment is linked to the judgment in Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235), by which the Court annulled Commission Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron originating in India in so far as it concerns Jindal Saw Ltd.
(
2
)	Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53).
(
3
)	Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Union (OJ 2009 L 343, p. 51), as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 (OJ 2014 L 18, p. 1).