Case T‑654/16

Foshan Lihua Ceramic Co. Ltd

v

European Commission

(Dumping — Imports of ceramic tiles originating in China — Article 11(3) and (5) and Article 17 of Regulation (EC) No 1225/2009 (now Article 11(3) and (5) and Article 17 of Regulation (EU) 2016/1036) — Rejection of a request for a partial interim review, limited to dumping aspects, of the definitive anti-dumping duty established by Implementing Regulation (EU) No 917/2011 — Lasting change in circumstances — Sampling — Individual examination — No cooperation in the investigation that led to the adoption of the definitive measures)

Summary — Judgment of the General Court (Fourth Chamber), 11 September 2018

Common commercial policy — Protection against dumping — Course of the investigation — Use of the information available where the undertaking refuses cooperation — Consequences — Failure to take non-cooperating undertakings into account in the sample — No breach of the principles of equality and non-discrimination

It is apparent from the wording of the second and third subparagraphs of Article 11(3) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, as amended by Regulation No 37/2014, that the objective of the partial interim review of anti-dumping measures is to verify the need for the continued imposition of those measures and that, in this regard, where the review request made by an exporter is limited to dumping, the institutions must first assess the need for the continued imposition of the existing measure and, on that basis, find a not only significant but also lasting change of circumstances with regard to the dumping. It follows that a request for a partial interim review, provided for under Article 11(3) referred to above, that is limited to dumping aspects and lodged by an exporting producer must include evidence offered in support that the factors that formed the basis for setting the dumping margin used to establish the anti-dumping duty applicable to the exporting producer who lodged the request have changed in a significant and lasting manner. Specifically, with regard to exporting producers that did not cooperate with the investigation that led to the adoption of Regulation No 917/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China, and that were made subject to an anti-dumping duty rate established by using the highest of the dumping margins found for a representative product type from a cooperating exporting producer, in accordance with recitals 66 and 77 of Regulation No 258/2011 imposing a provisional anti-dumping duty on imports of ceramic tiles originating in China and recitals 92 and 93 of the Regulation 917/2011, any exporting producer coming within that category must show that the circumstances which formed the basis for the setting of the latter rate have changed in a significant and lasting manner. As the setting of that rate is based on data relating to the sampling, such an exporting producer can discharge its burden of proof by also showing either that the factors forming the basis for the setting of the dumping margin used to establish the rates of the anti-dumping duty that apply to the companies included in the sampling had changed in a significant and lasting manner, or that such changes had affected all exporting producers of the exporting country. (see paras 25, 27, 29, 30)

Compliance with the principles of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. In that regard, an exporting producer that has not cooperated with an investigation that led to the adoption of anti-dumping measures is not in any way in the same situation with regard to the setting of the dumping margin as the exporting producers that did take part in that investigation, as the legislature laid down, in Article 18(1) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, as amended by Regulation No 37/2014, that the rate of the anti-dumping duty was set for non-cooperating exporting producers on the basis of the available data, it follows that those data might be less favourable than if they had cooperated. Further, such an exporting producer cannot establish that it has been discriminated against in the context of the alleged discrimination against cooperating exporting producers who were not sampled, as against cooperating exporting producers who were sampled. As the exporting producer did not take part in the initial investigation, it did not request to be included in the sample. As its line of argument does not relate to its own situation, its potential justification cannot lead to the annulment of the measure in so far as it relates to that exporting producer. Therefore, the exporting producer has no legal interest in raising that line of argument. (see paras 34, 35)

See the text of the decision. (see para. 36)

In the context of the application of Article 11(5) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, as amended by Regulation No 37/2014, some of the provisions governing the original investigation were not intended to apply to the review procedure, in the light of the general scheme and purposes of the system laid down by Regulation No 1225/2009. In that regard, applying Article 17(3) of Regulation No 1225/2009 in such a way as to provide for individual examination also in the context of the assessment of a request for partial interim review by an exporting producer which did not cooperate in the initial investigation runs counter to the purpose of the interim review procedure. Such an approach does not make it possible to assess whether the factors which formed the basis for setting the dumping margin used to establish the anti-dumping duty applicable to the exporting producer have changed in a significant and lasting manner. Data resulting from the analysis of the information relating to the exporting producers sampled would then be compared with the particular data for the exporting producer in question. Consequently, in the context of the assessment of the need to open a partial interim review procedure on the basis of alleged changes of circumstance put forward by an exporting producer, recourse to individual examination is not relevant. Otherwise, that exporting producer could circumvent the obligations relating to the burden of proof that apply to it for the purposes of the application of Article 11(3) of Regulation No 1225/2009 in view of its status as a non-cooperating undertaking during the original investigation. (see paras 39-41)

With regard to the use of sampling in the initial investigation that led to the imposition of an anti-dumping duty, it follows from the fourth subparagraph of Article 11(4) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, as amended by Regulation No 37/2014, that a new exporting producer cannot request a review pursuant to the preceding subparagraphs of that same paragraph. The reason for this is to avoid a situation in which such exporting producers are placed in a more favourable position than exporting producers which cooperated with the initial investigation, but were not sampled, and which are consequently made subject to an anti-dumping duty rate calculated in accordance with Article 9(6) of Regulation No 1225/2009. There is no reason to believe that the EU legislature wished to allow an exporting producer which did not cooperate with the initial investigation to be subject to an individual anti-dumping duty rate at the end of a review procedure if it has excluded that possibility for new exporting producers. (see para. 46)