Case T‑512/09 RENV

Rusal Armenal ZAO

v

Council of the European Union

(Dumping — Imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China — Definitive antidumping duty — Market Economy Treatment — Article 2(7)(b) and (c) second indent of Regulation (EC) No 384/96 — Cumulative assessment of imports subject to antidumping investigations — Article 3(4)(a) and (b) of Regulation No 384/96 — Undertaking offer — Article 8(3) of Regulation No 384/96)

Summary — Judgment of the General Court (Fourth Chamber, Extended Composition), 25 January 2017

Common commercial policy — Protection against dumping — Injury — Cumulative assessment of the effects of imports subject to anti-dumping investigations — Conditions — Appropriateness of a cumulative assessment in the light of competitive conditions — Assessment of competitive conditions — Account taken of relevant criteria for determining the like product — Lawfulness

Common commercial policy — Protection against dumping — Injury — Cumulative assessment of the effects of imports subject to anti-dumping investigations — Conditions — Non-negligible character of the imports from each country — Period to be taken into consideration

EU law — Principles — Equal treatment — Need to comply with the principle of legality — Impossible to rely on an unlawful act committed in favour of a third party

Common commercial policy — Protection against dumping — Injury — Cumulative assessment of the effects of imports subject to anti-dumping investigations — Conditions — Non-negligible character of the imports from each country — Account taken of the threshold of 1% mentioned in Article 5(7) of basic Regulation No 384/96 — Lawfulness

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Burden of proof on producers — Assessment of the evidence by the institutions — Judicial review — Limits

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Use of a single set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes — Restrictive interpretation — Irrelevant that the non-member country concerned a member of the WTO

See the text of the decision. (see para. 56)

Since Article 2(7)(c) of basic anti-dumping Regulation No 384/96 on protection against dumped imports from countries not members of the European Community specifies the conditions which must be complied with in order for the exception under Article 2(7)(b) of that regulation to apply, those conditions must be interpreted strictly. Emphasis by the Court of Justice on both the specific nature of the EU’s approach and the absence of any corresponding provision in the agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade of 1994 (GATT) makes it irrelevant as regards the interpretation of the conditions provided for in Article 2(7)(c) of the basic anti-dumping regulation that the non-member country concerned is a member of the World Trade Organisation (WTO). In the light of the objective of the conditions contained in Article 2(7)(c) of the said regulation, the reference, in the second indent of that provision, to the use of ‘one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes’ cannot be understood other than as being intended to enable the institutions to satisfy themselves of the accuracy of the accounting records of the undertaking concerned. The applicant is therefore wrong to submit that such a condition could be fulfilled solely on the basis of an audit procedure carried out in line with international standards on auditing, irrespective of the findings made in that procedure as to the compliance of the accounts of the undertaking concerned with international accounting standards. Moreover, use of a comparison within the same country, provided for by Article 2(5) of the basic anti-dumping regulation is possible only with respect to an undertaking from a market economy and is not possible with regard to an applicant for market economy treatment (MET), which is, by definition, from a non-market economy country. Thus, where there is doubt as to the actual costs of an MET applicant, that application must be refused and the normal value of the product determined on the basis of comparison with a market economy third country, in accordance with Article 2(7)(a) of the basic anti-dumping regulation. (see paras 57, 61, 63-65, 72)

See the text of the decision. (see paras 79-82)

Article 3(4)(a) of basic anti-dumping Regulation No 384/96 has been interpreted as permitting account to be taken of imports from a given country in the context of cumulation only in so far as they come from an exporting producer in respect of whom it has been established that he is engaging in dumping. It follows that the purpose of that provision is to avoid a cumulative assessment of the effects of imports being carried out by including a country whose imports from the exporting producer in question do not cause dumping, either because the dumping margin is less than de minimis, or because the import volumes are negligible. Article 5(7) of the basic anti-dumping regulation, by specifying that ‘[p]roceedings shall not be initiated against countries whose imports represent a market share of below 1%, unless such countries collectively account for 3% or more of Community consumption’, is intended specifically to make explicit the circumstances in which the share of the imports in EU consumption is too low for those imports to be regarded as causing dumping. There is therefore a complementary relationship between the two provisions, so that the Council does not err in law by taking into account the threshold of 1% mentioned in Article 5(7) of the basic regulation, for the purposes of interpreting the condition connected with the non-negligible nature of imports set out in Article 3(4)(a) of the basic regulation. (see paras 103-105)

The principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. (see para. 110)

The anti-dumping investigation must be carried out on the basis of as recent information as possible in order to be able to determine the antidumping duties appropriate for protecting the EU industry against dumping. The Council may determine the injury suffered by the EU industry over a period longer than that covered by the investigation into the existence of dumping practices, as a result of the examination of the trends for the assessment of injury in the context of the period considered. In determining the non-negligible nature of the imports of an exporting producer within the meaning of Article 4(1)(a) of basic anti-dumping Regulation No 384/96 on the basis of the data relating to the investigation period alone rather than to the period considered, the Council does not commit a manifest error of assessment, since taking account of the period considered would have resulted in a distorted picture of the actual volume of exports into the EU, since a period during which the exporting producer’s factory was shut down would then have been taken into account which cannot be regarded as reflecting its real level of production and export. Not taking into account a period which does not reflect the applicant’s normal activity is consistent with collecting as recent information as possible and, therefore, is consistent with the logic of the objective examination to which Article 3(2) of the basic anti-dumping regulation refers. (see paras 119, 120, 122-124)

The investigation period and the prohibition on consideration of factors relating to a subsequent period are intended to ensure that the results of the investigation are representative and reliable, by ensuring that the factors on which the determination of dumping and injury is based are not influenced by the conduct of the producers concerned following the initiation of the antidumping proceeding, and therefore that the definitive duty imposed as a result of the proceeding is appropriate to remedying effectively the injury caused by the dumping. Moreover, by using the term ‘normally’, Article 6(1) of the basic anti-dumping regulation does allow exceptions to the rule against taking account of information relating to a period subsequent to the investigation period. As regards circumstances favourable to the undertakings concerned by the investigation, it has been held that the EU institutions cannot be required to incorporate in their calculations factors relating to a period subsequent to the investigation period unless such factors disclose new facts which make the proposed antidumping duty manifestly inappropriate. If, on the other hand, factors relating to a period subsequent to the investigation period justify, because they reflect the current conduct of the undertakings concerned, the imposition or increase of an antidumping duty, it is clear, on the basis of the foregoing, that the institutions are entitled, indeed obliged, to take account of them. (see paras 129, 130)

See the text of the decision. (see paras 139-143)

In the context of the interpretation of Article 3(4)(b) of basic anti-dumping Regulation No 384/96, reference to the appropriateness of a cumulative assessment ‘of the effects of the imports … in light of the conditions of competition between imported products’ must be understood as seeking to prevent the effects of imports of products which are not sufficiently in competition with one another to cause the same injury suffered by the EU industry being cumulated. Similarly, the mention of the appropriateness of a cumulative assessment ‘of the conditions of competition between imported products and the conditions of competition between the imported products and the like Community product’ must be understood as having the purpose of preventing imports with an insufficient degree of competition with the product from the EU industry and, therefore, which are not capable of causing an injury to that industry being subject to a cumulative assessment with other imports. The Council does not therefore err in law in applying criteria equivalent to those that are relevant for determining the like product under Article 1(4) of the basic regulation, since those criteria are aimed, in essence, at ascertaining that there is a sufficient degree of competition between the product concerned and the like product. (see paras 149, 150)

See the text of the decision. (see para. 162)

Article 8(3) of basic anti-dumping Regulation No 384/96 shows that the EU institutions may take account of all sorts of factual circumstances in assessing an offer of undertaking. Moreover, there is no provision of the basic regulation requiring the EU institutions to accept proposed price undertakings formulated by the traders concerned by an investigation prior to the establishment of antidumping duties. On the contrary, it is apparent from that regulation that the acceptability of such undertakings is defined by the institutions in the context of their discretionary power. It follows logically that the General Court may exercise only a limited review of whether refusal of an undertaking offer is well founded. In that regard, it may be observed that the wide discretion of the institutions does not stem only from the complexity of the economic, political and legal situations entailed by measures to protect trade. It is also the consequence of the choice made by the legislature to leave a freedom of decision to the institutions as to whether or not it is appropriate to accept an undertaking offer. The requirement to ensure appropriate monitoring of undertakings is a consideration that the institutions may reasonably take into consideration when examining an undertaking offer. (see paras 176-178)