Joined Cases C-191/09 P and C-200/09 P

Council of the European Union and Commission of the European Communities

v

Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT)

‛Appeals — Anti-dumping duties — Regulation (EC) No 954/2006 — Imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine — Regulation (EC) No 384/96 — Article 2(10)(i), Article 3(2), (3) and (5) to (7), Article 18(3) and Article 19(3) — Calculation of the normal value and of the injury — ‘Single economic entity’ — Rights of the defence — No statement of reasons’

Summary of the Judgment

Appeals — Pleas in law — Erroneous assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

Different rules apply for the determination of normal value and of export price and therefore the sales, general and administrative expenses need not necessarily be treated in the same way in both cases. However, any differences between the two values may be taken into account under the adjustments provided for in Article 2(10) of Regulation No 384/96 on protection against dumped imports from countries not members of the European Community. It is apparent from the wording and broad scheme of Article 2(10) of that regulation that an adjustment to the export price or to the normal value may be made only to take account of differences in relation to factors which affect both prices, such as commissions, that is to say differences in commissions paid in respect of the sales under consideration, and which thus affect their comparability, in order to ensure that the comparison is made at the same level of trade. Therefore, the question of an export price adjustment, in the context of the application of Article 2(10) of Regulation No 384/96, requires, first of all, an examination at the level of trade at which the export price was determined. As regards the burden of proving the reality of the factor on the basis of which the adjustment in question was claimed or made, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, it must prove that its claim is justified. The burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of Regulation No 384/96 must be made lies with those who wish to rely on them, irrespective of who they are. Thus, where a producer claims that an adjustment of the normal value, in principle downward, or an adjustment of the export price, logically upward, applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. Conversely, where the Council and the Commission consider that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is the responsibility of those institutions to adduce at the very least consistent evidence showing that that condition is fulfilled. (see paras 51, 53, 57, 58, 60, 61)

There is nothing in the wording of Article 2(10) of Regulation No 384/96 on protection against dumped imports from countries not members of the European Community and, in particular, Article 2(10)(i) which may prevent the ‘single economic entity’ concept from being applied to the final determination of the export price in order for a fair comparison to be made under that article. Thus, if a producer exports his products to the European Union via a legally separate undertaking, but over which it holds economic control, there is no overriding legal or economic reason preventing those two traders from being regarded as a ‘single economic entity’. Although the ‘single economic entity’ concept was developed for the purposes of determining the normal value, it does not follow from those considerations, however, that that concept is to be applied only in relation to the domestic markets of producer-exporters. If a producer exports his products to the European Union through the intermediary of a legally separate undertaking, but over which it holds economic control, the requirement of a finding reflecting the economic reality of the relations between that producer and that sales company militates more in favour of applying the ‘single economic entity’ concept when calculating the export price. (see paras 54, 55)

In the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. The General Court did not go beyond the limits of its powers of judicial review in considering that the factors put forward by an institution to justify the adjustment made could not be regarded as sufficiently convincing and could not therefore be regarded as evidence establishing the existence of the factor on the basis of which the adjustment was made and enabling its impact on price comparability to be determined. The General Court thus did not impose any particular burden of proof on the institutions, other than that of showing that the conditions for granting such an adjustment were satisfied. Moreover, the assessment made by the General Court of the insufficiency of certain documents as items of evidence did not constitute a new assessment of the facts replacing that made by the institutions. In those circumstance, that review cannot be regarded as having encroached on the broad discretion of the institutions. (see paras 62, 63, 67, 68)

Respect for the rights of the defence is of crucial importance in anti-dumping investigations. In that regard, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury. In addition, the undertaking concerned cannot be required to show that the Commission’s decision would have been different in content but simply that such a possibility cannot be totally ruled out, since they would have been better able to defend themselves had there been no procedural error. However, the existence of an irregularity relating to the rights of the defence can result in annulment of Regulation No 954/2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome. (see paras 76-79, 83)

The obligation to state reasons does not require the General Court to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may be implicit on condition that it enables the persons concerned to know why the measures in question were taken. (see para. 105)

In an anti-dumping investigation, it follows from Article 18(3) of Regulation No 384/96 on protection against dumped imports from countries not Members of the European Communities that information presented in a form, or in the context of a document, other than a reply to the Commission’s questionnaire does not have to be ignored where the conditions set out in that article are satisfied. Where a party has failed to lodge a reply to the questionnaire, but has supplied information in the context of another document, it cannot be accused of lack of cooperation if, first, any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding; secondly, the information is submitted in good time; thirdly, it is verifiable; and fourthly, the party has acted to the best of its ability. Moreover, a European Union producer will not be regarded as not cooperating if the deficiencies in the production of the data, resulting from the failure to lodge a reply to the Commission’s questionnaire by a company affiliated to that producer, have no significant impact on the running of the investigation. Consequently, the data relating to such a producer must not automatically be excluded from that taken into account to calculate the injury incurred by the European Union industry. (see paras 150-152)

Pursuant to Article 9(4) of Regulation No 384/96 on protection against dumped imports from countries not Members of the European Community, which lays down the lesser-duty rule, the injury margin is used to determine the rate of anti-dumping duty only if the dumping margin is higher than it is. (see para. 153)

It is not the task of the Court of Justice on appeal to substitute its own assessment of the evidence for that made by the General Court. It is thus not for the Court of Justice to criticise the choices made by the General Court in the context of that examination, in particular where it decides to rely on certain items of evidence before it and to reject others, except where it finds that the General Court distorted the evidence by misinterpreting its clear content. (see para. 160)