EN Official Journal of the European Union C 89/13

Appeal brought on 13 January 2012 by Dashiqiao Sanqiang Refractory Materials Co. Ltd against the judgment of the General Court (First Chamber) delivered on 16 December 2011 in Case T-423/09 Dashqiao Sanqiang Refractory Materials Co. Ltd v Council

(Case C-15/12 P)

2012/C 89/21

Language of the case: French

Parties

Appellant: Dashiqiao Sanqiang Refractory Materials Co. Ltd (represented by: J.-F. Bellis and R. Luff, avocats)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

— Declare this appeal admissible and well founded;

— Annul the judgment of the General Court of the European Union of 16 December 2011 in Case T-423/09 Dashiqiao Sanqiang Refractory Materials Co. Ltd v Council and rule on the dispute which forms its subject-matter;

— Uphold the claims submitted at first instance and, accordingly, annul the antidumping duty imposed on the appellant under Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China, (1) in so far as the antidumping duty which it sets exceeds that which would be applicable if it had been determined on the basis of the method applied during the initial investigation to take account of the non-refund of the Chinese VAT on export in accordance with Article 2(10) of the basic regulation; (2)

— Order the Council to pay the costs of both instances.

Pleas in law and main arguments

The appellant raises three pleas in law in support of its appeal, challenging the rejection by the General Court of its second plea for annulment alleging infringement by the Council and the Commission of Article 11(9) of the basic antidumping regulation.

By its first plea in law, the appellant submits that the General Court errs in law inasmuch as it refuses to rule on the question of which method of comparison between the export price and the normal value had been applied in the initial investigation and therefore could not validly conclude that there was no change of methodology for the purposes of Article 11(9) of the basic regulation in the review investigation. In reality, there was a radical change in method of comparison between the initial investigation, when the comparison was made on a ‘VAT excluded’ basis, and the review, when the comparison was made on a ‘VAT included’ basis. Application of the latter methodology led to a higher dumping margin than that which would have resulted from application of the methodology used in the initial investigation.

By its second plea in law, the appellant argues that the General Court errs in law inasmuch as it considers that the institutions are bound no longer to apply the method of comparison between the export price and the normal value applied in the initial investigation if that leads to an adjustment not authorised under Article 2(10)(b) of the basic regulation, thus confusing the concepts of ‘adjustment’ and ‘method of comparison’.

By its third plea in law, the appellant submits that the General Court errs in law inasmuch as it concludes that the difference in the rate of refund of VAT on export between the period covered by the initial investigation and that covered by the review constitutes a change in circumstances which justifies a change in methodology, whereas it was not proven that that difference rendered the method of comparison used in the initial investigation inapplicable. Since the exception on the ground of a ‘change in circumstances’ is to be interpreted strictly, the reasoning in paragraphs 62 to 64 of the judgment under appeal clearly does not meet that rigorous requirement.

(1) OJ 2009 L 240, p. 7.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).