Appeal brought on 26 February 2021 by Changmao Biochemical Engineering Co. Ltd against the judgment of the General Court (Third Chamber) delivered on 16 December 2020 in Case T-541/18, Changmao Biochemical Engineering v Commission

(Case C-123/21 P)

(2021/C 182/55)

Language of the case: English

Parties

Appellant: Changmao Biochemical Engineering Co. Ltd (represented by: K. Adamantopoulos, dikigoros, P. Billiet, advocaat)

Other parties to the proceedings: European Commission, Distillerie Bonollo SpA, Industria Chimica Valenzana (ICV) SpA and Caviro Distillerie Srl

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 16 December 2020 in case T-541/18;

— grant the form of order sought by the appellant in its action before the General Court and annul the contested regulation (1), in so far as it relates to the appellant or, in the alternative, in its entirety, pursuant article 61 of the statute of the Court of Justice; and

— order the defendant and the interveners to pay the appellant’s costs of this appeal and of the proceedings before the General Court in case T-541/18; or

— in the alternative, refer the case to the General Court for it to rule on any or all of the appellant’s pleas, as justified by the state of procedure; and

— reserve the costs.

Pleas in law and main arguments

First ground of appeal: Paragraphs 64, 65 and 74 of the contested judgment are vitiated by an error of law in considering that the legality of EU acts adopted pursuant to Article 2(7) of the Basic Regulation (2) may not be reviewed in light of the Protocol of Accession of the People’s Republic of China to the WTO (‘Accession Protocol’). Alternatively, the contested judgment is vitiated by an error of law by failing to recognize that Article 2(7) of the Basic Regulation is an exception from Articles 2, (l) to (6), of the Basic Regulation that may specifically only be applied to imports from China into the EU by virtue of the Accession Protocol provisions 15(a)(ii) and (d) and for as long as these provisions are in force. The use by the Commission of Argentina as an analogue country in the appellant’s case was erroneous under both EU and WTO law. This approach resulted in a finding by the Commission of a very high dumping margin for the appellant where there would have been none, had the Commission instead applied the provisions of Articles 2, (l) to 6), of the Basic Regulation to the appellant.

Second ground of appeal: The General Court’s findings in paragraphs 103, 106, 109 to 112, 114, 116, 117, 120 and 121 of the contested judgment are vitiated by manifest error in the application of law in determining that the Commission did not infringe Articles 3(1), (2) and (5), as well as 11(2) and (9) of the Basic Regulation and its duty of care and good administration by failing to take into account in its assessment of the state of the Union tartaric acid industry the performance and commercial activities of Distilerie Mazzari, the largest, profitable and most successful Union tartaric acid producer, as well as the fact that ill-conceived investment decisions of certain EU tartaric acid producers negatively affected their performance.

Third ground of appeal: the General Court’s findings in paragraphs 138, 139, 145 to 147, 150 and 152 of the contested judgment are vitiated by manifest errors in the application of law in determining that the Commission did not infringe Articles 3(1), (2) and (5) as well as 11(2) of the Basic Regulation and its duty of care and good administration by refusing to take into account the activities of Hangzhou Bioking, the largest Chinese tartaric acid exporter to the EU, as well as the impact of climatic changes and the differences between the end uses of synthetic and naturally produced tartaric acid in its assessment of the likelihood of recurrence of injury.

Fourth ground of appeal: the General Court erred in law in paragraphs 171 and 173 to 177 of the contested judgment in concluding that the Commission had offered disclosure of all essential facts and considerations in good time to the appellant in the present case. Had the Commission complied with its duties under Articles 3(2), 11(2), 6(7), 19(2) and (4), and 20(2) and (4) of the Basic Regulation as well as Articles 6(4) and 6(2) of the WTO Anti-dumping Agreement, the appellant would have submitted meaningful comments to the Commission and the resultant Union vulnerability and likelihood of recurrence of injury determinations would have been different and beneficial to the appellant.

In addition, the appellant respectfully submits that the General Court erred in law in assessing, under Article 296 TFEU, the appellant’s claims on (1) the lack of legal basis for the application of Article 2(7) of the Basic Regulation by the contested regulation in paragraph 187 of the contested judgment; (2) the state of the Union tartaric acid industry in paragraph 188 of the contested judgment; and (3) the likelihood of recurrence of injury and the relevance of Hangzhou Bioking’s performance in paragraph 189 of the contested judgment. These claims should have been respectively dealt with in the context of the appellant’s first and fourth pleas set forth in the application before the General Court.

(1) Commission Implementing Regulation (EU) 2018/921 of 28 June 2018 imposing a definitive antidumping duty on imports of tartaric acid originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2018, L 164, p. 14).

(2) Council Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on the Protection against dumped imports from countries not members of the EU (OJ 2016, 176, p. 21).