By their appeal, Equipolymers Srl, M&G Polimeri Italia SpA and Novapet SA ask the Court to set aside the judgment of the General Court of the European Union of 5 April 2017, CPME and Others v Council (T‑422/13, ‘the judgment under appeal’, EU:T:2017:251), in so far as, by that judgment, the General Court dismissed their claims for compensation for the damage which they allegedly suffered on account of the illegality of Council Implementing Decision 2013/226/EU of 21 May 2013 rejecting the proposal for a Council implementing regulation imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia, in so far as the proposal would impose a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand(OJ 2013 L 136, p. 12, ‘the decision at issue’).
Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, and corrigendum OJ 2010 L 7, p. 22, ‘the basic regulation’), provides:
Article 21(1) of the basic regulation provides:
Equipolymers, M&G Polimeri Italia and Novapet are European producers of polyethylene terephthalate (‘PET’).
Since 2000, the European Union had been imposing anti-dumping duties on imports of certain PET from, inter alia, India, Taiwan and Thailand.
On 25 November 2011, following the publication in the Official Journal of the European Union of the Notice of the impending expiry of certain anti-dumping measures (OJ 2011 C 122, p. 10), which included the duties mentioned in the preceding paragraph, the Commission received a request from the European Union’s PET producer industry for the initiation of an expiry review in respect of those duties on the basis of Article 11(2) of the basic regulation. After announcing, on 24 February 2012, the initiation of such a review and carrying out an investigation, the Commission submitted to the Council of the European Union, on 23 April 2013, a proposal for an anti-dumping regulation extending the anti-dumping duties in question for a further period of five years, on the ground that, in the event of their expiry, there would be a likelihood of a continuation of dumping and recurrence of injury to the Union industry and that extending those duties was not against the Union interest.
By the decision at issue, the Council rejected the Commission’s proposal (Article 1) and terminated the review proceeding concerning imports of PET (Article 2). The Council stated that it had not been made out that a recurrence of injury would be likely if the anti-dumping measures were allowed to lapse (recital 5), and such a recurrence was even unlikely (recital 17). The Council added that it was clearly not in the Union interest to extend those measures, as the resulting costs to importers, users and consumers were disproportionate to the benefits for the Union industry (recital 23).
By application lodged at the General Court Registry on 14 August 2013, the applicants at first instance - an association of EU producers of PET and 11 EU producers of PET, which included Equipolymers, M&G Polimeri Italia and Novapet - brought an application before the General Court under Article 263 TFEU, seeking annulment in part of the decision at issue and, under Article 268 TFEU, an order that the Council compensate the PET producers for the damage allegedly suffered on account of the unlawful adoption of that decision.
Further to the hearing on 28 June 2016, the applicants at first instance, having been authorised to that effect by the General Court, lodged a submission for the purposes of updating their claim for damages.
In support of their application for annulment of the decision at issue, the applicants at first instance relied on three pleas in law.
In the context of the second plea in law, they submitted that the Council’s conclusions in recitals 17 and 23 of the decision at issue according to which, on the one hand, the expiry of the measures was unlikely to lead to the recurrence of material injury and, on the other, the extension of the anti-dumping duties at issue was clearly not in the Union interest, constituted manifest errors of assessment and infringed Article 11(2) and Article 21(1) of the basic regulation, respectively.
As regards their claim for damages, the applicants at first instance argued that, following the decision at issue, they had been forced to maintain their EU sales prices at loss-making levels, in order to compete with dumped imports from India, Taiwan and Thailand. That loss was due, according to them, to the difference between their earnings before interest, taxes and amortisation (‘EBITA’) during the period between April 2012 and March 2013 and the EBITA estimated for the period from June 2013 to May 2014.
However, as part of the updating of their claim for damages, the applicants at first instance stated that only Equipolymers, M&G Polimeri Italia and Novapet maintained their claims for compensation for the losses incurred, and only for the period from June 2013 to February 2014. They explained that the entry into force of Commission Implementing Decision 2014/109/EU of 4 February 2014 repealing Decision 2000/745/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of certain polyethylene terephthalate (PET) originating, inter alia, in India (OJ 2014 L 59, p. 35), had led to a considerable drop in imports of PET from India to the European Union as from 1 March 2014.
By the judgment under appeal, the General Court allowed the second plea in law and annulled the decision at issue in part, without examining the first and third pleas in law of the application for annulment.
By contrast, the General Court dismissed the claim for damages, on the ground, set out in paragraph 187 of the judgment under appeal, that ‘the information provided by the applicants [at first instance] in the context of the update [of their claim for damages] d[id] not make it possible to establish to the requisite legal standard that there is a causal link between the … adoption of the [decision at issue] and the alleged losses’. The General Court explained, in paragraph 188 of the judgment under appeal, that ‘the applicants [at first instance had not made] a distinction, in the reduction of their EBITA, between the part which [had been] caused by the increase in imports at low prices following the … adoption of the [decision at issue] and that resulting from other factors likely to cause or lead to a decrease in that single economic indicator’. Consequently, in paragraph 189 of the judgment under appeal, the General Court concluded that the applicants at first instance, which included Equipolymers, M&G Polimeri Italia and Novapet ‘ha[d] not established the existence of a direct and sufficient causal link capable of engaging the Union’s liability’.
By their appeal, Equipolymers, M&G Polimeri Italia and Novapet claim that the Court should:
The Council contends that the Court should:
In support of their appeal, the appellants raise a single ground of appeal, alleging that, in finding that there was no direct and sufficient causal link between the unlawful adoption of the decision at issue and the damage incurred capable of engaging the Union’s liability, the General Court distorted the evidence submitted by them.
The Council contends that the appeal is inadmissible, arguing that, by their single ground of appeal, the appellants in fact contest the assessment of the facts carried out by the General Court, whereas such an assessment is not subject to review by the Court of Justice and no distortion of the facts or evidence has been proven.
It must be noted that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court, consequently, has exclusive jurisdiction to find and assess the relevant facts and the evidence submitted to it. The assessment of those facts and that evidence thus do not, except when the facts or evidence are distorted, constitute a point of law which is subject as such to review by the Court of Justice in an appeal. Such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgments of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraphs 31 and 32, and of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 25).
In the present case, by their single ground of appeal, the appellants complain that the General Court failed, without any justification, to examine the adjustments and explanations provided in their updated damages claim, in particular those relating to the limitation in time of that claim, the choice of the EBITA indicator, the imports from Malaysia and Indonesia, raw material price fluctuations, extraordinary income and costs, and overall market developments. They state that while the General Court acknowledged, in paragraphs 165 and 176 to 178 of the judgment under appeal, that they had accounted for the potential impact of several factors when they assessed the causal link between the unlawful adoption of the decision at issue and their alleged damage, it did not adjudicate on the relevance of those factors when determining the causal link.
Consequently, contrary to the Council’s contentions, the appellants cannot be considered to be seeking from the Court of Justice, by their single ground of appeal, a new assessment of the facts and evidence. Indeed, first, they dispute that the General Court, relying solely on the factors referred to in paragraph 188 of the judgment under appeal and failing to take into account the information which they had produced in the context of the updating of the claim for damages, could have validly concluded that they had not established a causal link between the decision at issue and the damage alleged. Such a question is a question of law which may be subject to review by the Court of Justice in an appeal (see, to that effect, judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraphs 192 and 193).
Secondly, the appellants complain that the General Court failed to state the reasons for which the factors mentioned in paragraph 21 above were insufficient or irrelevant in order to establish such a causal link.
The question of whether the grounds of a judgment of the General Court are inadequate is also a question of law which is amenable, as such, to judicial review on appeal (see, to that effect, judgments of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 90, and of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 26).
It follows that since the single ground of appeal is admissible, the plea of inadmissibility raised by the Council must be rejected.
By their single ground of appeal, the appellants submit that the General Court’s conclusions in paragraphs 187 to 189 of the judgment under appeal constitute an incorrect presentation and distortion of the evidence provided in their updated damages claim. They complain that the General Court accepted, without requiring any evidence in that regard, the Council’s allegations, according to which factors other than those concerned by the evidence submitted by the appellants could have had an impact on their performance.
In their updated damages claim, of all the known factors other than the decision at issue, the appellants examined those which could have had an impact on their EBITA. Indeed, as is apparent from paragraphs 165 and 176 to 178 of the judgment under appeal, the General Court itself acknowledged that, in that updating, they had accounted for the potential impact of several other factors when establishing the causal link between the adoption of the decision at issue and their alleged damage.
However, the General Court incorrectly found, in paragraph 188 of the judgment under appeal, that the appellants had not made a distinction, with regard to the origin of their loss, between the part caused by the increase in imports at low prices from India, Taiwan and Thailand, following the unlawful adoption of the decision at issue, and that resulting from other factors. In so doing, the General Court failed to take into account the adjustments made and explanations given in the updated damages claim. In that context, the appellants submit that the General Court did not explain the reasons for which the information they had provided was not capable, in its view, of establishing to the requisite legal standard that there was a causal link.
By way of example, the appellants submit that the General Court failed, in paragraph 187 et seq. of the judgment under appeal, to take into consideration the fact that they had, in their updated damages claim, limited that claim solely to the period from June 2013 to February 2014, acknowledging that after that period certain factors occurred that were likely to break the causal link for subsequent periods.
The General Court also failed, first, to take into account the fact that the appellants, in relying on EBITA, had excluded other potential sources of losses, such as capital expenditures or factory closure costs. Secondly, it failed to analyse the fact that the appellants claimed only 77% of their EBITA losses as damages because they attributed 23% of their EBITA losses to imports from Malaysia and Indonesia, although the EU market share of those countries was only 1.7%. Similarly, the General Court did not examine whether such a very conservative approach was reasonably likely to cover potential similar impacts, such as the change in competition between EU companies.
The General Court also failed to examine the appellants’ explanations as to why raw material price fluctuations had had no impact on the damage sustained, and the exclusion, by one of the appellants, of some extraordinary costs from its damages calculation.
Lastly, in paragraph 188 of the judgment under appeal, the General Court failed to examine the impact of the market share increase by over 47% of the imports from India, Taiwan and Thailand between the periods compared for the purposes of calculating damages.
The Council disputes the appellants’ arguments.
By their single ground of appeal, the appellants dispute paragraphs 187 and 188 of the judgment under appeal, in that the General Court held there that ‘the information provided by [them] in the context of the update [of their claim for damages] d[id] not make it possible to establish to the requisite legal standard that there is a causal link between the … adoption of the [decision at issue] and the alleged losses’ (paragraph 187) and that ‘[they had not made] a distinction, in the reduction of their EBITA, between the part which would be caused by the increase in imports at low prices following the … adoption of the [decision at issue] and that resulting from other factors likely to cause or lead to a decrease in that single economic indicator’ (paragraph 188). Consequently, they dispute the General Court’s conclusion, in paragraph 189 of the judgment under appeal, that ‘[they had] not established the existence of a direct and sufficient causal link capable of engaging the Union’s liability’.
First, the appellants submit, in essence, that the General Court erred in law in failing to assess the information provided in the context of the updating of their damages claim, whereas that information was relevant for determining whether there was a causal link between the unlawful adoption of the decision at issue and their alleged damage.
In that connection, it must be borne in mind that, according to the settled case-law of the Court, in order for the non-contractual liability of the European Union to be capable of being engaged, the damage must flow sufficiently directly from the unlawful conduct of the institutions (see, to that effect, judgments of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 53, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 61).
It is for the party seeking to establish the European Union’s non-contractual liability to adduce conclusive proof as to the existence and extent of the damage it alleges and as to the existence of a sufficiently direct causal nexus between the conduct of the EU institutions objected to and the damage alleged (see, to that effect, judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 62 and the case-law cited).
In the present case, it must be noted that in order to reach the conclusion, in paragraph 189 of the judgment under appeal, that the appellants had not established the existence of such a causal link between the decision at issue and the damage alleged, the General Court found, in paragraph 188 of that judgment, that ‘[t]he EBITA [could] have been influenced by factors other than the [decision at issue], in particular, changes in sales practices, competition between EU producers and competition between their products and imports from countries other than India, Taiwan, Thailand, Malaysia and Indonesia’, noting, in that regard, that ‘during the period from June 2013 to February 2014, imports from India, Taiwan and Thailand [had] represented only 5.6% of Union consumption and those from Malaysia and Indonesia 1.72%’.
However, the appellants do not dispute the relevance of the factors thereby relied on by the General Court for determining whether or not there was a sufficiently direct causal link between the unlawful adoption of the decision at issue and the reduction in their EBITA.
By contrast, while accepting implicitly that the factors relied on by the General Court in paragraph 188 of the judgment under appeal were capable of influencing their EBITA, the appellants submit that the General Court ought to have examined whether the fact that they claimed only 77% of their EBITA losses as damages, in attributing 23% of those losses to imports from Malaysia and Indonesia, although the EU market share of those countries was only 1.7%, could also cover potential impacts of the change in competition between EU companies.
In that regard, it must be pointed out, first, that as has been noted in paragraph 37 above, it was for the appellants to adduce conclusive proof as to the existence of a sufficiently direct causal nexus between the adoption of the decision at issue and the damage alleged. It was not, therefore, for the General Court to attempt to deduce the existence of such a link, by referring to calculations which, at least expressly, did not take into account all the relevant factors. Secondly, the appellants do not state that the possible effect on the decrease of their EBITA of changes in sales practices and of the imports from countries other than India, Taiwan, Thailand, Malaysia and Indonesia had been accounted for in the evidence they submitted to the General Court.
In those circumstances, it is irrelevant that the General Court may have failed to take into account in its analysis certain adjustments and explanations provided by the appellants in their updated damages claim, the purpose of which was to make a distinction, in the reduction of their EBITA, between the part caused by the increase in imports from India, Taiwan and Thailand following the adoption of the decision at issue and that resulting from other factors, since the General Court held that, notwithstanding that information submitted by the appellants, other factors could have influenced their EBITA.
It follows that the General Court did not err as to the characterisation of the facts when it held, in paragraph 189 of the judgment under appeal, that the appellants had not established the existence of a direct and sufficient causal link capable of engaging the Union’s liability.
Secondly, as regards the appellants’ submission that the General Court infringed its obligation to state reasons, it should be borne in mind that the General Court is not required to provide reasons for each of its choices where it relies on one item of evidence as opposed to another in support of its decision (judgments 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 161, and of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel, C‑186/14 P and C‑193/14 P, EU:C:2016:209, paragraph 40).
However, the General Court’s obligation to state reasons is intended to enable the persons concerned to know the reasons which led it to adopt the judgment in question and provide the Court of Justice with sufficient material for it to exercise its power of review (judgment of 14 March 2013, Viega v Commission, C‑276/11 P, not published, EU:C:2013:163, paragraph 44).
In that regard, it is clear from established case-law that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgments of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 135, and 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 105).
In the present case, the appellants submit that the General Court did not set out the reasons for which the evidence provided in the context of their updated damages claim was insufficient to establish a causal link between the unlawful adoption of the decision at issue and the damage alleged.
However, since, in paragraph 188 of the judgment under appeal, the General Court listed factors which, notwithstanding the unlawful adoption of the decision at issue, were likely to cause or lead to a reduction in the appellants’ EBITA, and stated that the appellants had not made a distinction, in that reduction, between the part entailed by the unlawful adoption of that decision and that attributable to those factors, the General Court implicitly but necessarily considered that the evidence put forward by the appellants did not enable a direct and sufficient causal link to be established between that decision and the damage allegedly sustained.
Thus, the explanations in paragraph 188 of the judgment under appeal were such as to enable the appellants to know the reasons for which the General Court did not uphold their arguments relating to the existence of such a causal link and to provide the Court of Justice with sufficient material for it to exercise its power of review.
The appellants are not, therefore, justified in maintaining that the General Court infringed its obligation to state reasons.
Accordingly, the appellants’ single ground of appeal must be rejected as unfounded.
Consequently, the appeal must be dismissed.
Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Council has applied for costs to be awarded against the appellants and they have been unsuccessful, the appellants must be ordered to pay the costs.