Council of the European Union v Zhejiang Xinan Chemical Industrial Group Co. Ltd.
Date: 2012-07-19
46. It should be pointed out, in that regard, that the Court of Justice can declare an appeal to be inadmissible where an event subsequent to the judgment of the General Court has removed its prejudicial effect for the appellant. An interest in bringing the appeal proceedings assumes that the appeal is likely, if successful, to procure an advantage to the party bringing it (see Case C-19/93 P Rendo and Others  v Commission  [1995] ECR I-3319, paragraph 13, and the orders in Case C-111/99 P Lech-Stahlwerke  v Commission  [2001] ECR I-727, paragraph 18, and Case C-503/07 P Saint-Gobain Glass Deutschland  v Commission  [2008] ECR I-2217, paragraph 48).
51. Nor does it appear that, as a consequence of the adoption of Regulation No 1187/2010, the dispute between the parties has been brought to an end and that the appeal has therefore become devoid of purpose for that reason (see, by analogy, in particular, the order in Case C-498/01 P OHIM  v Zapf Creation  [2004] ECR I-11349, paragraph 12, and Case C-27/09 P France v People’s Mojahedin Organisation of Iran [2011] ECR I-13427, paragraph 48).
55. In that connection, it must be noted that it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts and, second, to assess those facts. It is only where the material inaccuracy of the General Court’s findings is apparent from the procedural documents submitted to it or where the evidence used to support those facts has been distorted that those findings of fact and the appraisal of evidence constitute points of law subject to review by the Court of Justice on appeal. By contrast, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, to that effect, in particular, Case C-440/07 P Commission  v Schneider Electric  [2009] ECR I-6413, paragraphs 103 and 104, and Case C-352/09 P ThyssenKrupp Nirosta  v Commission  [2011] ECR I-2359, paragraphs 179 and 180 and case-law cited).
61. In that connection, it is sufficient to note that, provided that the appellant challenges the interpretation or application of Community law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see Case C-425/07 P AEPI  v Commission  [2009] ECR I-3205, paragraph 24, and Case C-54/09 P Greece  v Commission  [2010] ECR I-7537, paragraph 43).
66. It should be noted, first of all, that Article 2(7)(a) of the basic regulation provides that in the case of imports from non-market economy countries, in derogation from the rules set out in paragraphs 1 to 6 of Article 2, normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country. The aim of that provision is to prevent account being taken of prices and costs in non-market-economy countries which are not the normal result of market forces (see Case C-26/96 Rotexchemie  [1997] ECR I-2817, paragraph 9, and judgment of 22 March 2012 in Case C-338/10 GLS , paragraph 20).
67. However, pursuant to Article 2(7)(b), in anti-dumping investigations concerning imports from China, normal value is to be determined in accordance with Article 2(1) to (6) of the basic regulation, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation, and in accordance with the criteria and procedures set out in Article 2(7)(c), that market economy conditions prevail for that producer or those producers in respect of the manufacture and sale of the like product concerned.
68. It is clear from the fourth and fifth recitals of Regulation No 905/98 that it inserted Article 2(7)(b) and (c) into the basic regulation owing to the fact that the process of reform in particular in China has fundamentally altered its economy and has led to the emergence of firms for which market economy conditions prevail, so that China has moved away from the economic circumstances which inspired use of the analogue country method as a matter of course.
69. However, since, despite that process of reform, the People’s Republic of China is still not a market economy country to whose exports the rules set out in Article 2(1) to (6) of the basic regulation apply automatically, it is, in accordance with Article 2(7)(c), for each producer wishing to benefit from those rules to produce sufficient evidence, as laid down by that provision, that it operates under market economy conditions.
70. It is for the Council and the Commission to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in Article 2(7)(c) of the basic regulation are fulfilled in order to grant it MET and it is for the European Union judicature to examine whether that assessment is vitiated by a manifest error (see judgment of 2 February 2012 in Case C-249/10 P Brosmann Footwear (HK) and Others  v Council , paragraph 32).
82. Whether or not such State interference in the decisions is significant must be assessed in relation to the purpose of that provision, which is to ensure that a producer operates under market economy conditions and, in particular, that the costs to which it is subject and the prices which it charges are the result of market forces. Consequently, State interference that is neither by its nature nor effect capable of rendering a producer’s decisions regarding prices, costs and inputs incompatible with market economy conditions cannot be considered significant.
93. Lastly, as regards the argument based on the status of Article 2(7)(b) and (c) of the basic regulation as an exception, it should be noted that the requirement that a provision be interpreted strictly cannot enable the institutions to interpret and apply the provision in a manner inconsistent with its wording and purpose.
106. In that context, it must be observed that, by reason of the complexity of the economic, political and legal situations which they have to examine in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade (Case C-351/04 Ikea Wholesale  [2007] ECR I-7723, paragraph 40; Case C-398/05 AGST Draht- und Biegetechnik  [2008] ECR I-1057, paragraph 33; Case C-373/08 Hoesch Metals and Alloys  [2010] ECR I-951, paragraph 61; and judgment of 16 February 2012 in Joined Cases C-191/09 P and C-200/09 P Council and Commission  v Interpipe Niko Tube and Interpipe NTRP , paragraph 63), the institutions in question enjoyed, during such an assessment, a broad discretion and could have taken into account any evidence at their disposal in order to assess whether the evidence submitted by Xinanchem was convincing and whether it was sufficient to dispel the concern that that company was not free to set its export prices because of that mechanism. In addition, as the General Court indeed noted in paragraph 36 of the judgment under appeal, if any doubt remains as regards the question whether the criteria set out in Article 2(7)(c) of the basic regulation are satisfied, MET cannot be granted.
107. However, that wide discretion does not relieve the institutions of the obligation to have due regard to the relevant evidence submitted by the producer. In that connection, it must be noted that the Court has already held that, where those institutions have a wide discretion, observance of the guarantees conferred by the European Union legal order in administrative procedures is of even more fundamental importance (see Case C-269/90 Technische Universität München  [1991] ECR I-5469, paragraph 14, and Case C-405/07 P Netherlands v Commission  [2008] ECR I-8301, paragraph 56).