Appeal brought on 25 January 2019 by RFA International, LP against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-113/15: RFA International v Commission

(Case C-56/19 P)

(2019/C 148/15)

Language of the case: English

Parties

Appellant: RFA International, LP (represented by: B. Evtimov, адвокат, M. Krestiyanova, avocate, D. O'Keeffe, Solicitor, N. Tuominen, E. Borovikov, avocats)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the contested judgment;

— give final judgment in the matter, where the state of the proceedings so permits;

— in the alternative refer the case for reconsideration to the General Court;

— order the Commission to pay the costs of the proceedings before the Court of Justice, as well as the costs of the proceedings before the General Court.

Pleas in law and main arguments

The present appeal is limited to challenging the General Court’s findings on the appellant’s second plea at first instance.

In its findings, the General Court erred in the legal interpretation of Article 11(9) and (10) of the Basic Regulation (1) and in defining overly broadly the permissible scope for the Commission’s discretionary choices in the assessment of complex situations under those provisions. The appellant respectfully requests that the Court of Justice should set aside the contested judgment on the following grounds.

The General Court committed two errors in law as far as the interpretation of the Basic Regulation is concerned.

a) First, the General Court wrongly interpreted Article 11(9) of the Basic Regulation. Under Article 11(9) of the Basic Regulation, in all review investigations, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty being imposed, with due account being taken of Article 2 of that regulation. However, when assessing whether the anti-dumping duties had been reflected in the resale prices, the Commission did not do so on the basis of the resale prices identified in the investigation leading to the initial regulation, but on the basis of current production costs in Russia. This constitutes a change in methodology within the meaning of Article 11(9) of the Basic Regulation. The Commission observed that the circumstances had significantly changed since the initial investigation and in particular, the Russian exporters’ production costs had increased by around 100 %. However, costs increases existed and were already known during the 2008-2010 refund investigation periods.

b) Second, the General Court wrongly interpreted Article 11(10) of the Basic Regulation by applying an erroneous legal test. The legal test designed by the General Court requires that evidence of incorporation of the anti-dumping duties in the export prices could only be made through DDP (2) pricing data and by showing that not only the anti-dumping duties were captured in the new prices but also the entirety of any production costs incurred. Neither Article 11(10) of the Basic Regulation, nor the Commission Notice concerning the reimbursement of antidumping duties (3) contain such a requirement.

Finally, the General Court made substantially incorrect findings of fact when it concluded that:

a) The production cost increases only surfaced during the first and second refund investigation periods and thus constituted a change of circumstances justifying a change in methodology. In fact, the Commission had known about the cost increases already during the original investigation period and the 2008-2010 refunds investigations.

b) The change in methodology was justified to create a level playing field and avoid discriminatory treatment between operators that would be subject to the same measures. In fact, all Russian producers would have been subject to the same cost increases.

(1) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009, L 343, p. 51).

(2) ‘Delivery duty paid’.

(3) OJ 2014, C 164, p. 9.