Shanxi Taigang Stainless Steel Co. Ltd v European Commission.
Date: 2019-07-29
23


In addition, the appellant submits that the judgments of 22 October 1991, Nölle (C‑16/90, EU:C:1991:402), of 22 March 2012, GLS (C‑338/10, EU:C:2012:158, paragraph 29), and of 10 September 2015, Fliesen-Zentrum Deutschland (C‑687/13, EU:C:2015:573), which are cited in paragraphs 30 to 33 of the judgment under appeal, concerned situations in which there was no market economy country that was subject to the same investigation. Thus, those judgments are relevant only for the purpose of interpreting the first sentence of the second subparagraph of Article 2(7)(a) of the basic regulation, which governs the choice of an analogue country where there is no market economy country that is subject to the same investigation, and not for the purpose of interpreting the second sentence of that subparagraph.
28


To that end, it should be borne in mind that, in accordance with the first subparagraph of Article 2(7)(a) of the basic regulation, in the case of imports from non-market economy countries, in derogation from the rules set out in Article 2(1) to (6) of that regulation, normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country, that is to say, according to the analogue country method (judgments of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 48, and of 28 February 2018, Commission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P, EU:C:2018:132, paragraph 64). The second subparagraph of Article 2(7)(a) of the basic regulation provides, in the first sentence thereof, that the analogue country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection and, in the second sentence thereof, that, where appropriate, a market economy third country which is subject to the same investigation is to be used.
30


In that regard, it is apparent from that case-law, first, that the choice of analogue country falls within the broad discretion enjoyed by the EU institutions in the sphere of the common commercial policy, by reason of the complexity of the economic and political situations which they have to examine (see, to that effect, judgments of 22 October 1991, Nölle, C‑16/90, EU:C:1991:402, paragraph 11; of 29 May 1997, Rotexchemie, C‑26/96, EU:C:1997:261, paragraph 10; and of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 44).
31


Secondly, it follows from that case-law that the analogue country must be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection, the Courts of the European Union having to ensure that the competent EU institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the file in the case was considered with all the care required for it to be held that the normal value of the product concerned was determined in an appropriate and not unreasonable manner. To that end, it is for those institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country (see, to that effect, judgments of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraphs 21 and 22, and of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraphs 49 and 51).
43


In addition, while in the judgment of 10 September 2015, Fliesen-Zentrum Deutschland (C‑687/13, EU:C:2015:573, paragraph 48), cited by the General Court in paragraph 60 of the judgment under appeal, the Court of Justice held that the aim of Article 2(7)(a) of the basic regulation is to prevent account being taken of prices and costs in non-market economy countries which are not the result of normal market forces, it did not, however, rule on whether adjustments can be made on account of factors which are the result of such forces, such as differences due to a natural comparative advantage. Nor was that possibility excluded in the judgment of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (T‑558/12 and T‑559/12, not published, EU:T:2015:237, paragraph 110), cited in paragraph 61 of the judgment under appeal.