Maxcom Ltd v City Cycle Industries.
Date: 2017-01-26
53


However, an alleged failure to have regard to the rules of evidence is a question of law, which is admissible in an appeal (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 44).
56


It should be observed, in that respect, first, that, according to the Court’s case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63 and the case-law cited).
58


According to Article 13(3) of the basic regulation, it is for the Commission to initiate an investigation on the basis of evidence which prima facie suggests circumvention practices. It is the Court’s settled case-law that that provision establishes the principle that the burden of proving circumvention falls to the EU institutions (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 35).
62


Lastly, with regard to the standard of proof required to demonstrate circumvention where there is insufficient or indeed no cooperation on the part of producer-exporters, it should be noted that there is no provision in the basic regulation which confers on the Commission, in an investigation to establish whether there has been circumvention, the power to compel producers or exporters which are the subject of a complaint to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to provide it with the necessary information (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 32).
63


It is for that reason that the EU legislature provided in Article 18(1) of the basic regulation that, in cases where an interested party refuses access to, or otherwise does not provide, necessary information, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 33).
65


In circumstances in which no cooperation whatsoever has been forthcoming from the producer-exporters, the Court has held that even though the basic regulation, and particularly Article 13(3) thereof, establishes the principle that the burden of proving circumvention is imposed on the EU institutions, Article 18(1) and (6) of the regulation are clearly intended to lessen that burden by providing that those institutions may base the findings of an investigation to ascertain whether there has been circumvention on the facts available and that the result may be less favourable to the parties which have not cooperated with it than it might have been if they had cooperated (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 35).
66


The Court has stated in that regard that it follows from Article 18 of the basic regulation that it was not the intention of the EU legislature to establish a legal presumption whereby it is possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, thus exempting the EU institutions from any requirement to adduce proof. However, given that it is possible to make findings, even definitive findings, on the basis of the facts available and to treat a party which does not cooperate, or does not cooperate fully, less favourably than if it had cooperated, it is equally evident that the EU institutions are authorised to act on the basis of a body of consistent evidence showing the existence of circumvention for the purposes of Article 13(1) of the basic regulation (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 36).
67


Any other approach would risk undermining the efficiency of EU trade defence measures each time the EU institutions are faced with non-cooperation in an investigation to establish whether there has been circumvention (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 37).
68


In the present case, only some of the producer-exporters failed to cooperate. First, there is nothing in the wording of Article 13(1) of the basic regulation to prevent the EU institutions establishing circumvention of anti-dumping measures on the basis of a body of consistent evidence where producer-exporters accounting for a significant part of the imports of the product concerned into the European Union have not cooperated or have failed to cooperate sufficiently with the investigation. Second, the need to guarantee the effectiveness of trade defence measures also justifies, in circumstances such as those of the present case, those institutions being authorised to act on the basis of such a body of consistent evidence showing the existence of circumvention within the meaning of that provision.
69


While the EU institutions are entitled to rely on such a body of evidence, the fact nonetheless remains that, in accordance with Article 13(1) and (3) of the basic regulation, that evidence must show that the four conditions outlined in paragraph 57 above are met. Thus, as regards the second of those conditions, the EU institutions must have acquired evidence which tends to establish that the change in the pattern of trade stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty.
76


As is apparent from the principles set out in paragraphs 65 to 69 above, it is not possible to conclude on the basis of those two findings either that City Cycle was involved in transhipment operations as an individual producer-exporter or that such practices existed at national level in Sri Lanka.
77


First, while the EU institutions are authorised, in the case of insufficient cooperation, to rely on a body of consistent evidence in concluding that anti-dumping measures have been circumvented, there is nevertheless no legal presumption whereby it is possible to infer directly from an interested party’s failure to cooperate that such circumvention exists. Furthermore, those institutions must have evidence to show that each of the four conditions for demonstrating circumvention set out in paragraph 57 above is met, including the condition that the change in the pattern of trade must stem from circumvention practices. It follows that the Council was not entitled to infer from the simple fact that some of the producer-exporters failed to cooperate that transhipment had occurred.
78


Second, as a change in the pattern of trade is the first of the four conditions to be met in order for circumvention to be properly established, the Council was not entitled to rely on the finding that there had been such a change as evidence of the fact that the second of the four conditions, which requires that such a change should stem from circumvention practices, was established.
87


In the first place, with regard to the argument alleging an inadequate statement of reasons, according to the Court’s case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the reasoning of the General Court, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 54).
89


The Court has also held that the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of the institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see, to that effect, judgment of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel and Council v Hubei Xinyegang Steel, C‑186/14 P and C‑193/14 P, EU:C:2016:209, paragraphs 35 and 36 and the case-law cited).
106


In the second place, as regards the refusal by the General Court to grant the request for measures of organisation of procedure submitted by the Commission, it should be borne in mind that, according to the Court’s settled case-law, the General Court is the sole judge, in principle, of any need to supplement the information available to it in respect of the cases before it (see judgment of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 66 and the case-law cited). Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the General Court is apparent from the documents in the case file (see, to that effect, judgment of 28 January 2016, Heli-Flight v EASA, C‑61/15 P, not published, EU:C:2016:59, paragraph 94 and the case-law cited).