Case T‑443/11

Gold East Paper (Jiangsu) Co. Ltd

and

Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd

v

Council of the European Union

‛Dumping — Imports of coated fine paper originating in China — Status as an undertaking evolving in a market economy — Time-limit for adopting a decision as to that status — Diligent and impartial examination — Rights of the defence — Manifest error of assessment — Principle of sound administration — Burden of proof — Injury — Determination of the profit margin — Definition of the product concerned — Community industry — Causal link’

Summary — Judgment of the General Court (Third Chamber), 11 September 2014

Common commercial policy — Protection against dumping — Injury — Profit margin used to calculate the target price — Margin reasonably to be counted on in the absence of dumping

Common commercial policy — Protection against dumping — Discretion of the institutions — No obligation on the institutions to classify macroeconomic and microeconomic criteria or to prohibit the constitution of sub-groups of producers

Common commercial policy — Protection against dumping — Injury — Factors to be taken into consideration — Information concerning an EU producer which did not reply to the Commission’s request, supplied by a producers’ association — Admissibility

Actions for annulment — Grounds — Not possible to rely on WTO agreements to challenge the legality of an EU measure — Exceptions — EU measure intended to ensure its implementation or referring thereto expressly and precisely — Decision on status as an undertaking operating in a market economy within the meaning of Article 2(7)(c) of Regulation No 1225/2009 — Inapplicability of exceptions

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from countries not having a market economy as referred to in Article 2(7)(b) and (c) of Regulation No 1225/2009 — Application of the rules for countries with a market economy — Restrictive interpretation — Application reserved for producers meeting the cumulative conditions under Article 2(7)(c) of that regulation — Burden of proof on producers — Not unreasonable

Actions for annulment — Grounds — Infringement of essential procedural requirements — Infringement by an institution of its rules of procedure — Rules on consultation of Member States within the anti-dumping consultative committee — Plea raised by a natural or legal person by reason of non-transmission or late transmission to the committee of documents not containing important information — No infringement of essential procedural requirements

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from countries not having a market economy as referred to in Article 2(7)(b) of Regulation No 1225/2009 — Procedure for assessing the conditions enabling a producer to benefit from market economy treatment — Knowledge by the Commission of the effect of a decision on the granting of status as an undertaking operating in a market economy of the dumping margin of an undertaking — Admissibility

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Regulation imposing anti-dumping duties — Different duties imposed on different undertakings — Admissibility limited for each undertaking to the provisions concerning it in particular

See the text of the decision. (see paras 62, 63)

See the text of the decision. (see paras 66, 125, 135, 160, 174)

There is no immediate link between the three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community and any knowledge on the part of the Commission of the effect on an undertaking’s dumping margin of a decision concerning status as an undertaking operating in a market economy. Moreover, even where the time-limit in question has not in any way been exceeded at the time such a decision is adopted, it cannot be excluded that the Commission may take such a decision even though it is already in possession of information enabling it to calculate its effect on the dumping margin of the undertaking concerned. In those circumstances, even if it were accepted as relevant that as a result of its disregarding the three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of Regulation No 1225/2009, the Commission might have known the effect of a decision concerning an applicant’s status on its dumping margin since it might be argued that the Commission could have been influenced by that knowledge in adopting such a decision, it would still be necessary for the contested regulation to have been capable of being substantively different but for the purported irregularity affecting the procedure for the adoption of the decision on market economy status. In that regard, mere knowledge of the effect of such a decision on an undertaking’s dumping margin does not necessarily mean that such a decision — and, consequently, the regulation imposing an anti-dumping duty — might have been substantively different if that decision had been adopted within the three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of the said regulation. (see paras 70, 71, 79, 81)

See the text of the decision. (see para. 90)

Failure to comply with a rule relating to consultation of a committee can render the final decision of the institution concerned unlawful only if it is sufficiently substantial and has a detrimental effect on the legal and factual situation of the party alleging a procedural irregularity. The consultation of a committee is an essential procedural requirement, breach of which affects the legality of the act adopted following consultation, if it is proved that failure to forward certain material information did not allow the committee to deliver its opinion in full knowledge of the facts, that is to say, without being misled in a material respect by inaccuracies or omissions. That is not the case where the documents not sent to the committee, or sent only belatedly, do not contain any important new information not already contained in the file sent to the committee when it was convened. In such a situation, the fact that the Commission failed to send a document or sent it belatedly has no repercussions on the outcome of the consultation procedure. It accordingly cannot vitiate the administrative procedure as a whole and so call into question the lawfulness of the final decision. (see paras 98-101)

See the text of the decision. (see paras 120, 121, 165, 166)

See the text of the decision. (see paras 122, 162-164, 182-184, 249, 323)

Agreements of the World Trade Organisation are not in principle among the rules in the light of which the EU judicature is to review the legality of measures adopted by the EU institutions, pursuant to the first paragraph of Article 263 TFEU. However, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the EU judicature to review the legality of the EU measure in question in the light of the WTO rules. In that context, a decision on status as an undertaking operating in a market economy is not a specific action for the purposes of Article 32.1 of the WTO Agreement on Subsidies and Countervailing Measures (ASCM), since: (1) the third indent of the first subparagraph of Article 2(7)(c) of the Regulation No 1225/2009 does not implement Article 32.1 of ASCM; (2) that decision does not refer expressly to precise provisions of the WTO agreements, including ASCM; and (3) such a decision on status as an undertaking operating in a market economy is not adopted following a determination of dumping or subsidisation and is not inextricably linked to the constituent elements of dumping or of a subsidy. (see paras 147, 148, 151-153)

In anti-dumping cases the Council and the Commission depend on the willingness of the parties to cooperate in providing them with the necessary information within the prescribed periods. Even if the situation of a producer which has not replied within the prescribed time-limits has been taken into account in relation to macroeconomic indicators by virtue of data submitted by a producers’ association representing nearly all the production of EU producers-exporters, microeconomic indicators can be assessed only on submission of data by individual companies. Thus, the fact that an EU producer has not replied cannot constitute an omission in the course of a specific examination based on objective evidence of the injury assessment. (see paras 193, 198-200)

In anti-dumping cases, the Council and the Commission depend on the willingness of the parties to cooperate in providing them with the necessary information within the prescribed periods. In that context, there is no obligation on the EU institutions under Regulation No 1225/2099 to classify the macroeconomic and microeconomic criteria or any prohibition on constituting sub-groups of producers, provided that the Commission carries out an objective examination based on evidence which is itself objective, such as was carried out in the present case. (see paras 222, 226)

It follows from a reading of Articles 3(1) and 9(4) of Regulation No 1225/2009 that the profit margin to be used by the Council when calculating the target price that will remove the injury in question must be limited to the profit margin which the Union industry could reasonably count on under normal conditions of competition, in the absence of the dumped imports. It would not be consistent with Article 3(1) and Article 9(4) of that regulation to allow the Union industry a profit margin that it could not have expected if there were no dumping. Moreover, when they use the margin of discretion conferred on them by the Regulation No 1225/2009, the institutions are not obliged to explain in detail and in advance the criteria which they intend to apply in every situation, even where they create new policy options. (see paras 245, 254)

See the text of the decision. (see para. 288)

See the text of the decision. (see paras 302-304, 306, 307, 311, 312)