AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen.
Date: 2008-02-28
33. It must, on the other hand, be observed that in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the Community institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (see Case C‑351/04 Ikea Wholesale  [2007] ECR I‑0000, paragraph 40, and the case-law cited).
34. Furthermore, it is settled case-law that the determination of the existence of harm to the Community industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those fac ts or a misuse of powers (see Ikea Wholesale , paragraph 41, and the case-law cited). That is, particularly, the case as regards the determination of the factors injuring the Community industry in an anti-subsidy proceeding.
35. In determining injury, the Council and the Commission are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from the subsidised imports and must disregard any injury deriving from other factors, particularly from the conduct of Community producers themselves (see Case C‑358/89 Extramet Industrie  v Council  [1992] ECR I‑3813, paragraph 16).
45. It is therefore necessary to examine whether the concerted application of the alloy surcharge by the flat product producers which, as was held in Mukand and Others  v Council , could have had a significant influence on the prices of stainless steel bars, could also have had such an influence on the prices of stainless steel wire for the purposes of Article 8(7) of the basic regulation.
46. In that regard, it is necessary to note that the Community institutions stated that the alloy surcharge for stainless steel wires had already been imposed as an element in the final price.
47. Those institutions submit that the alloy surcharge for stainless steel wires was, during the period under investigation, a percentage lower on average than 5% of the net average weighted price of those products. Even assuming that the amount of the alloy surcharge was influenced by the flat product producers’ anti‑competitive conduct, the effect of the artificial increase of the alloy surcharge on the net average weighted prices of stainless steel wires was so small that it could not cast doubt on the reliability of those prices.
48. AGST claims that if the alloy surcharge for stainless steel bars artificially increased their prices, since it was multiplied by a yield factor of 1.35, it also inevitably artificially increased the price of stainless steel wires. In that regard, AGST maintained, at the hearing, that the alloy surcharge for stainless steel wires, during the period under investigation, was, in any event, higher than the 4 or 5% suggested by the Commission.
49. The exporting producers stated, during the administrative procedure, that the Community producers which had applied an alloy surcharge to steel wires had fixed its amount in the same way as the steel bar producers, by multiplying the alloy surcharge applied to flat steel products by a factor of 1.35, the objective effect of which was automatically to mirror, in the markets for those products, the artificial price increases achieved through the concerted action between the flat product producers.
50. However, AGST provided no evidence concerning the parallelism between the evolution of the prices of flat products and that of the prices of stainless steel wires because of the uniform application of the yield coefficient of 1.35 by the wire producers to the alloy surcharge applied to flat products which could show that the flat product producers’ anti‑competitive conduct could have significant repercussions on the level of stainless steel wire prices which would render them artificially higher.
51. In the main proceedings, the Community institutions did not fail to take account of a known factor like the system of applying the alloy surcharge. They examined the factor of the application of the alloy surcharge and concluded that it constituted a small percentage of the final price. In those circumstances, it is for the parties pleading the invalidity of the regulation to adduce evidence to show that the concerted application of the alloy surcharge by the flat product producers could have had an effect of such magnitude that the final prices of stainless steel wires could no longer be used to establish the existence of injury to the Community industry and of the causal link between that injury and the subsidised imports.
52. However, the Court file contains no material which could lead to the conclusion that the Community institutions made a manifest error of assessment by relying, in the determination of the injury and of the causal link between that injury and the subsidised imports, on the absence of factors, other than those imports, which, according to AGST, caused injury to the Community industry at the same time.
53. AGST relied solely on Mukand and Others  v Council  to claim that the conclusions therein apply to Regulation No 1599/1999, since stainless steel wires belong, just like stainless steel bars, in the category of so‑called ‘long’ products, and on the similarity between the two products in respect of the calculation of the alloy surcharge.
54. No indication has been given that the concerted application of the alloy surcharge to flat products led to an increase in the overall level of stainless steel wire prices such that the final prices of those products could not be regarded as a reliable indicator for the purpose of establishing what injury was suffered by the Community industry because of the subsidised imports.