Appeal brought on 4 December 2019 by European Commission against the judgment of the General Court (Seventh Chamber) delivered on 24 September 2019 in Case T-500/17, Hubei Xinyegang Special Tube v Commission

(Case C-891/19 P)

(2020/C 45/30)

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Maxian Rusche and N. Kuplewatzky, Agents)

Other parties to the proceedings: Hubei Xinyegang Special Tube Co. Ltd, ArcelorMittal Tubular Products Roman SA, Válcovny trub Chomutov a.s., Vallourec Deutschland GmbH

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— reject the first and second pleas of the application at first instance as unfounded in law;

— refer the case for the third and fourth pleas of the application at first instance to the General Court for reconsideration;

— reserve the costs at first instance and on appeal for final judgment by the General Court.

Pleas in law and main arguments

The Commission presents six grounds of appeal.

First, there are several errors in law in paragraphs 59 to 67 the judgment. In particular, the General Court misinterpreted Articles 1(2), 1(4), 3(2), 3(3), 3(8) and 4 of the Basic Regulation (1) by reading into the latter two provisions a requirement that the Commission must take account of the segmentation of the market of the product under consideration in its analysis of price effects. However, Article 3(2) and (3) of the Basic Regulation require a comparison at the level of the like product, as defined in Article 1(4) of the Basic Regulation and not the type of detailed assessment required by the General Court at the level of market segments. The judicial authorities relied upon by the General Court do not support the view of the General Court, and the General Court distorts the facts underlying those authorities and the facts underlying the Contested Regulation (2). Finally and in any event, there are no specific features that would justify an analysis by market segment.

Second, in paragraphs 59 to 67 the judgment, the General Court erroneously interpreted the Contested Regulation or distorted the facts as regards the use of Product Control Numbers (PCN) in the Commission’s price effects analysis. The use of PCN internalises certain characteristics such as market segmentation (and many other factors), naturally making any price effects analysis based on such a PCN structure take account of those factors. A further segmented price effects analysis was therefore not necessary.

Third, in paragraphs 77 to 79 of the judgment, the General Court has erred in interpreting Article 296 TFEU and distorted the evidence concerning the analysis based on market segments during the investigation and in the contested regulation.

Fourth, in paragraphs 68 to 76 of the judgment, the General Court erroneously interprets Article 3(2) and 3(3) of the Basic Regulation, which only requires establishing the effects of the dumped imports on the Union industry. Contrary to the view taken by the General Court, the effect of sales of product types not exported by the sampled exporting producers is irrelevant.

Fifth, paragraphs 67 to 76 of the judgment fail to take account of the effects of Article 17 of the Basic Regulation, which concerns sampling, and deprive it of its effet utile. The finding in those paragraphs overlooks that the inherent effect of sampling is that the Commission only analyses the imports of the sampled Chinese exporting producers. Therefore, there may legitimately be sales that are not captured due to the use of sampling. However, that side effect does not undermine the legitimacy of the price effects analysis carried out on the basis of a representative sample taken in accordance with Article 17 of the Basic Regulation.

Sixth, in paragraphs 34, 35, and 45 of the judgment, the General Court requalified the first and second pleas before it and so ruled ultra petita. The General Court also committed an error in law by wrongly defining the scope of judicial review applicable to the first and second plea before it. Even if the standard of review laid down by the General Court existed, quod non, it wrongly qualified or even distorted the facts underlying the Commission’s analysis.

(1) 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, p. 21).

(2) Commission Implementing Regulation (EU) 2017/804 of 11 May 2017 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of iron (other than cast iron) or steel (other than stainless steel), of circular cross-section, of an external diameter exceeding 406,4 mm, originating in the People's Republic of China (OJ 2017, L 121, p. 3).