Case T‑211/16

Caviro Distillerie Srl and Others

v

European Commission

(Dumping — Imports of tartaric acid originating in China and produced by Hangzhou Bioking Biochemical Engineering Co., Ltd — Implementing Decision (EU) 2016/176 — Non-imposition of a definitive anti-dumping duty — Article 3(2), (3) and (5) and Article 17(1) and (2) of Regulation (EC) No 1225/2009 — Sampling — No material injury — Manifest error of assessment — Determination of injury — Profitability of the Union industry)

Summary — Judgment of the General Court (Ninth Chamber), 15 March 2018

In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU judicature must review not only whether errors of law exist, but also whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers. This is so, in particular, as regards the determination of injury to the Union industry, which requires an appraisal of complex economic situations. Consequently, whilst, in the sphere of measures to protect trade, in particular anti-dumping measures, the EU judicature cannot interfere in the assessment reserved to the competent EU authorities, its task is nevertheless to satisfy itself that the institutions have taken account of all the relevant circumstances and appraised the facts of the matter with all due care. (see paras 34-37)

Pursuant to Article 17(1) and (2) of Basic Anti-dumping Regulation No 1225/2009, the Commission is authorised in large-scale cases to limit the investigation to determine injury to a reasonable number of parties by using the sampling method. In that regard, Article 17(1) of the basic regulation provides for two sampling methods. The investigation may be limited to a reasonable number of parties, products or transactions which are statistically representative on the basis of the information available at the time of the selection, or to the largest volume of production, sales or exports which can reasonably be investigated within the time available. It follows that, where they select the second sampling method, the EU institutions have some discretion, relating to the prospective assessment of what it is reasonably possible for them to accomplish in the conduct of their investigation within the prescribed time limit. In addition, Article 17(2) of that regulation states that the final selection of parties made under the sampling provisions is to rest with the Commission. So far as concerns the representativeness of the sample, it is for the Commission to ensure that various factors are present, such as, inter alia, the proportion of total Union production and the geographical spread of the producers. Under Article 4(1) of the basic regulation, in order to obtain a reliable representation of the economic situation of the Union industry, the Commission’s analysis must be based on the Union industry as a whole. However, where the applicant does not accept that the sample is representative, it is for that applicant to adduce evidence enabling the Court to find that the Commission, as a result of the composition of the sample of the Union industry selected, committed a manifest error of assessment when determining injury. (see paras 40, 41, 44, 49)

Pursuant to Article 3(2) of Basic Anti-dumping Regulation No 1225/2009, the objective examination of the determination of injury to the Union industry must cover the volume of the dumped imports and the effect of those imports on prices in the EU market for like products on the one hand and the impact of those imports on the Union industry on the other. Regarding the volume of those imports and their effect on prices in the EU market for like products, Article 3(3) of the basic regulation sets out the factors to be taken into account during that examination, while specifying that no one or more of those factors can give decisive guidance per se. Article 3(5) of the basic regulation specifies that the examination of the impact of the dumped imports on the Union industry concerned includes an evaluation of all relevant economic factors and indices having a bearing on the state of that industry. That provision contains a list of factors which may be taken into account and states that that list is not exhaustive and that decisive guidance is not necessarily given by any one or more of those factors. That provision thus gives the EU institutions a broad discretion in the examination and evaluation of the various items of evidence. In that regard, while it is true that the dumping margin must be taken into account in the determination of injury under Article 3(5) of the basic regulation, the fact remains that it is above all an element to be taken into account in determining the existence of dumping, which is a separate condition from that relating to establishing injury in the context of the imposition of anti-dumping measures. (see paras 84-86, 108)