By its appeal, Photo USA Electronic Graphic Inc. (‘Photo USA’) seeks to have set aside the judgment of the General Court of the European Union of 18 November 2014 in Photo USA Electronic Graphic v Council (T‑394/13 (‘the judgment under appeal’), EU:T:2014:964), by which that court dismissed its application for annulment of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2013 L 131, p. 1) (‘the contested regulation’).
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) (‘the basic regulation’) provides in Article 1 thereof, entitled ‘Principles’:
Article 3(2) of the basic regulation provides as follows:
According to Article 3(7) of the basic regulation:
Article 20 of the basic regulation states as follows:
The contested regulation was adopted on the basis of the basic regulation. Recital 29 of the contested regulation states as follows:
Recital 169 of the contested regulation is worded as follows:
The contested regulation provides in Article 1(1) thereof as follows:
Photo USA is a Chinese company which produces and exports plain polyester-coated ceramic mugs to the European Union (‘the mugs at issue’).
On 16 February 2012, the Commission initiated an anti-dumping proceeding to investigate the importation into the European Union of ceramic tableware and kitchenware originating in China. The investigation covered the period from 1 January to 31 December 2011 and the examination of the periods relevant for the assessment of injury covered the period from 1 January 2008 to the end of the investigation period.
On 14 November 2012, the Commission adopted Regulation (EU) No 1072/2012 imposing a provisional anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2012 L 318, p. 28).
Photo USA submitted observations to the Commission at a hearing on 23 January 2013. It requested in particular that the mugs at issue be excluded from the products concerned by the investigation.
On 4 February 2013, Photo USA submitted additional observations to the Commission.
On 1 March 2013, Photo USA received from the Commission the final disclosure document provided for in Article 20 of the basic regulation. That document states that the request for the exclusion of mugs at issue from the scope of the investigation had been rejected.
On 22 March 2013, Photo USA submitted additional observations to the Commission.
On 15 May 2013, upon the proposal of the Commission, the Council published the contested regulation imposing a definitive anti-dumping duty on the imports concerned with effect from 16 May 2013.
As is apparent from Article 1(1) of the contested regulation, the Council rejected the request for the mugs at issue to be excluded from the definition of the products concerned by the investigation.
Under Article 1(2) of the contested regulation, a definitive anti-dumping duty of 17.9% was imposed on Photo USA.
By application lodged at the Registry of the General Court on 2 August 2013, Photo USA brought an action for annulment of the contested regulation. In support of its action, Photo USA raised four pleas in law. The General Court rejected all those pleas in the judgment under appeal.
The first plea concerned the definition of the goods covered by the investigation. The appellant contested the Council’s inclusion of the mugs at issue in the definition of those goods.
The appellant argued that the Council had made manifest errors of assessment in identifying, in recital 29 of the contested regulation, three factors justifying the inclusion of the mugs at issue in the definition of the goods concerned by the investigation. The first factor relied on by the Council for including those mugs in that definition was that they were visually identical to other non-sublimated tableware and that it was difficult to distinguish between them, if not impossible. The second factor put forward by the Council was that those mugs had the same end-use as other types of ceramic tableware. Lastly, the Council stated, by way of third factor, that several EU producers manufactured that type of product and that EU-made and imported products were in direct competition.
The General Court examined those three factors in turn.
As regards the first factor, the General Court concluded, at the end of its examination in paragraph 39 of the judgment under appeal, that the Council erred in finding that the mugs at issue were visually identical to other non-sublimated tableware. According to the General Court, that factor was irrelevant to the present case as the different categories of goods included in the definition of the goods concerned by the investigation are not in any way visually similar. The fact that goods belonging to the same more restricted category, namely ceramic mugs, are visually similar is, therefore, according to the General Court, irrelevant for the purpose of determining whether or not they fall within the more general category of goods concerned by the investigation.
As regards the second factor, the General Court considered, at paragraph 38 of the judgment under appeal, that the appellant had failed to show that the end-use of the mugs at issue differed substantially from that of other ceramic tableware and cookware.
With regard to the third factor, the General Court stated, in paragraph 37 of the judgment under appeal, that the fact that there are producers of the mugs at issue within the European Union was not determinative; what was decisive, on the other hand, was the fact that those mugs were in competition with other goods manufactured in the European Union, which had been demonstrated to be the case here.
The second plea concerned in particular the contention that the fair comparison required pursuant to Article 2(10) of the basic regulation between the normal value and the export price had not been made. The General Court stated, in paragraph 62 of the judgment under appeal, that the appellant had not put forward any argument capable of calling the Commission’s analysis into question.
The third plea alleged that the EU institutions had made a manifest error in their assessment, under Article 3(7) of the basic regulation, of the causal connection between the dumped imports and the injury suffered by the EU industry. The argument put forward by the appellant was that the Bundeskartellamt (the German competition authority) had investigated potentially anti-competitive practices in Germany but the EU institutions had failed to take this into account in their assessment.
The General Court stated, in that regard, in paragraph 73 of the judgment under appeal, that the investigation by the German competition authority was still ongoing when the contested regulation was adopted and that it could not therefore be said that it had been established that restrictive practices existed. That court also stated, in paragraph 81 of the judgment under appeal, that the period covered by the investigation carried out by that national authority and that covered by the anti-dumping investigation overlapped by only two months and that the German market in question accounted for no more than 16% of the EU market, not 53% as claimed by the appellant.
The General Court also examined the Commission’s assessment of the microeconomic factors and stated, in paragraph 78 of the judgment under appeal, that the appellant had failed to produce any evidence capable of calling that institution’s conclusion into question, the appellant having failed to demonstrate that the alleged anti-competitive practices investigated by the German competition authority had affected the microeconomic indicators analysed. The General Court also corrected, in paragraph 76 of the judgment under appeal, what it considered to be the appellant’s erroneous interpretation of recital 169 of the contested regulation, and was thus able to reject the appellant’s request for a measure of inquiry requiring the Council to submit the relevant evidence concerning the composition of the sample taken into consideration by the institutions.
Lastly, the General Court found, in paragraph 80 of the judgment under appeal, that the Council had not erred in finding that the macroeconomic indicators could be affected only to a very limited extent by the practices in question.
As regards the fourth plea, alleging infringement of the provision of the basic regulation relating to the determination of injury, the General Court rejected that plea, noting, in paragraphs 88 and 89 of the judgment under appeal, that that plea alleged an error on the part of the institutions, a claim that was rejected in connection with the third plea.
Photo USA claims that the Court should:
The Council contends that the Court should:
The Commission, Ancàp SpA, Ceramie-Unie AISBL, Confindustria Ceramica and Verband der Keramischen Industrie eVcontend that the Court should:
By its first ground of appeal, Photo USA takes issue with the General Court for imposing on it an unreasonable burden of proof, since it was established in the judgment under appeal that the Council misinterpreted two of the three factors deemed relevant for the inclusion of the mugs at issue in the definition of the goods concerned by the investigation. The General Court nonetheless took the view that it was for the appellant to show that an error had been made in respect of all the factors identified. In particular, the General Court found that the first factor relied on by the Council, relating to the claim that those mugs were visually identical to other ceramic tableware and kitchenware, was incorrect. It also found that the Council had erred insofar as concerns the third factor, relating to the presence of producers of the mugs at issue within the European Union. The fact that the General Court established that two of the three factors identified by the Council to justify the inclusion of the mugs at issue in the definition of the goods concerned by the investigation are vitiated by errors of assessment should have been sufficient for it to be concluded that the appellant had discharged the burden of proof.
In support of its position, Photo USA relies on paragraph 132 of the judgment of 4 March 2010 in Brosmann Footwear (HK) and Others v Council (T‑401/06, EU:T:2010:67), from which it follows that the appellant is not required to prove an error of assessment in relation to each of the factors deemed relevant by the institutions.
The Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie contend that the first ground of appeal should be dismissed on the basis that it is inadmissible and unfounded. They state, first, that it is apparent from paragraph 51 of the judgment under appeal that the General Court concluded that the Council had made an error in respect of only one of the three factors in question and that the appellant’s contention, as set out in paragraph 35 above, is therefore a distortion of the judgment under appeal. Second, the burden of proof imposed on the appellant was not unreasonable and follows directly from the General Court’s case-law, in particular from the judgment of 4 March 2010 in Brosmann Footwear (HK) and Others v Council (T‑401/06, EU:T:2010:67).
As a preliminary point, it should be noted, with regard to the first factor referred to by the appellant, that the General Court did in fact conclude, in paragraph 39 of the judgment under appeal, that the Council had erred in finding, to justify the inclusion of the mugs at issue in the definition of the goods concerned by the investigation, that they were visually identical to other types of ceramic tableware and kitchenware.
As regards the second factor identified by the Council, it should be noted that the appellant has not called into question the General Court’s finding that there is no evidence in the file to justify the conclusion that the end use of the mugs at issue differs substantially from that of other ceramic tableware and kitchenware.
As regards the third factor, contrary to what the appellant claims, the General Court did not find that the Council had made an error.
Indeed, the General Court stated, in paragraph 37 of the judgment under appeal, that that factor in fact consists of two sub-factors, it being necessary, first, to establish whether in the present case there are producers of the mugs at issue in the European Union and, second, to establish whether those mugs are in competition with other goods manufactured in the European Union.
The General Court considered in that regard that, in the present case, the fact that there may not be producers of the mugs at issue in the European Union was not determinative, and that the decisive question was whether such mugs may be, on account of their characteristics and, therefore, the perception which consumers have of them, in competition with other goods of European Union production. It was indeed specifically established in the present case that those mugs were in competition with other goods manufactured in the European Union.
It follows from the above considerations that, in support of its decision to reject the appellant’s argument that the mugs at issue should have been excluded from the definition of the goods in question, the General Court relied on the second and third factors.
In so doing, the General Court did not err in law and, in particular, it did not impose an unreasonable burden of proof on the appellant
It was for the appellant to prove that the Council had erred in its assessment of the factors which it considered relevant when the General Court found that the Council had erred in its interpretation with regard to just one of those factors.
It follows that, while the General Court found that an error had been made in relation to the first factor, the appellant was required to show that the Council had erred insofar as concerns the other factors under consideration.
The first ground of appeal must therefore also be rejected as unfounded.
By its second ground of appeal, Photo USA claims that the General Court distorted the facts and evidence by asserting, in paragraph 37 of the judgment under appeal, that mugs of the kind at issue were produced in the European Union. According to Photo USA, there is nothing in the file submitted to the General Court to suggest that such goods are actually produced.
According to the Council, whose view is shared by the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie, the second ground of appeal is inadmissible. By that ground, Photo USA is calling into question the General Court’s assessment of the facts and evidence and is asking the Court to re-examine them. The second ground of appeal is also unfounded.
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, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts.
It follows that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that that evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value to be attached to the evidence produced before it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment of 11 September 2014 in Gem-Year Industrial and Jinn-Well Auto-Parts (Zhejiang) v Council, C‑602/12 P, not published, EU:C:2014:2203, paragraph 37).
Such distortion must, nonetheless, 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 (judgment of 11 September 2014 in Gem-Year Industrial and Jinn-Well Auto-Parts (Zhejiang) v Council, C‑602/12 P, not published, EU:C:2014:2203, paragraph 38).
The Court finds that it is not obvious from the arguments put forward in connection with the second ground of appeal that the facts and evidence were distorted, as claimed by the appellant.
It follows that the second ground of appeal must be rejected as unfounded.
By its third ground of appeal, the appellant contends that the General Court erred in its interpretation of Article 3(2) and (7) of the basic regulation, in that it considered that the institutions were relieved of any obligation to analyse the impact of anti-competitive practices because, even though the German competition authority was conducting an investigation, it was common ground that that authority had not taken a final decision at the time the contested regulation was adopted.
Moreover, by its sixth ground of appeal, Photo USA alleges infringement of Article 3(2) and (7) of the basic regulation, in so far as the General Court found, on the basis of an assumption rather than analysis, that the institutions had fulfilled their obligations under those provisions.
The Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie consider that the third and sixth grounds of appeal are inadmissible and, in any event, unfounded.
They consider that, contrary to what is claimed by the appellant, the General Court did not relieve the institutions of their obligation to analyse the impact of anti-competitive practices in connection with an anti-dumping investigation. On the contrary, in paragraphs 76 to 78, 80 and 81 of the judgment under appeal, the General Court confirmed that the institutions had examined the impact of the suspected practices.
In that regard, the General Court was entitled to take the view that the Council and the Commission, in the absence of any formal decision by the German competition authority, could not draw any concrete conclusions from the investigation being carried out by that authority. The General Court was also correct to confirm the Council’s and the Commission’s assessments because, first, the General Court’s conclusions are based on the Commission’s analysis, which concluded that the practices investigated had no impact, and, second, Photo USA did not produce any evidence to challenge the institutions’ finding in that regard.
The Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie also claim that the General Court examined in detail the analysis carried out by the institutions with regard to macroeconomic factors.
Article 3(2) of the basic regulation provides that a determination of injury is to be based on positive evidence and involves an objective examination of both (i) the volume of the dumped imports and the effect of the dumped imports on prices in the EU market for like products, and (ii) the consequent impact of those imports on the EU industry.
Article 3(7) of the basic regulation provides that known factors other than the dumped imports which could at the same time be injuring the EU industry are also to be examined to ensure that injury caused by these other factors is not attributed to the dumped imports. Factors which may be considered in this respect include restrictive trade practices of, and competition between, third country and EU producers.
Furthermore, it is settled case-law that the determination of injury caused to the EU industry requires an appraisal of complex economic situations and judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is particularly the case as regards the determination of the factors injuring the EU industry in an anti-dumping investigation (judgment of 10 September 2015 in Bricmate, C‑569/13, EU:C:2015:572, paragraph 46 and the case-law cited).
In the present case, it is common ground, as the General Court observed in point 73 of the judgment under appeal, that at the time the contested regulation was adopted, the German competition authority’s investigation was still ongoing. The institutions were not therefore entitled, when examining whether there was injury, to regard as known facts the future results of that investigation, which was still pending.
That being the case, it is apparent from paragraphs 77 to 83 of the judgment under appeal that, first, the General Court did not relieve the institutions of their obligation to analyse anti-competitive practices. Indeed, the General Court endorsed the institutions’ analysis as regards microeconomic and macroeconomic factors and did not, therefore, have recourse to assumptions.
Second, the General Court carried out a judicial review of the institutions’ assessments, in accordance with the requirements set out in paragraph 63 above.
Accordingly, the third and sixth grounds of appeal must be rejected as unfounded.
By its fourth ground of appeal, the appellant claims, first, distortion of the evidence insofar as concerns the microeconomic factors referred to in recital 169 of the contested regulation, on the basis that the General Court considered that it was able to review whether the institutions had complied with Article 3(2) and (7) of the basic regulation without knowing the identity of the EU producers forming part of the sample taken into account in the anti-dumping investigation.
The appellant also contends that the General Court erred in law in refusing its request for measures of inquiry.
The Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie contend that the Court should reject the fourth ground of appeal as unfounded, as the appellant has based its arguments on a misinterpretation of recital 169 of the contested regulation. That recital clearly states that it may be confirmed that none of the EU producers forming part of the sample were investigated by the German competition authority. It was possible to conclude, on the basis of the investigation, that the microeconomic indicators had not been affected by the practices under examination and that the macroeconomic indicators had been affected only to a limited extent.
With regard to the claim that the General Court erred in law, the Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie agree in saying that that amounts to a criticism of a procedural decision of the General Court and must therefore be rejected as inadmissible.
In the first place, the appellant alleges distortion of the facts and evidence insofar as the General Court carried out its review without knowing the identity of the EU producers that formed part of the sample taken into account in the anti-dumping investigation and, therefore, without being able to verify whether some of those producers were also being investigated by the German competition authority.
In that regard, the appellant is incorrect in its view that it was necessary for the General Court to be aware of the identity of the EU producers forming part of the sample taken into account in the anti-dumping investigation in order to be in a position to ascertain whether some of those producers were also being investigated by the German competition authority. The true position is that the General Court’s review was carried out on the basis of other aspects of the anti-dumping investigation, namely the microeconomic indicators, such as stocks, sale prices, profitability, capital flow, wages and the cost of production.
As a result of that incorrect premiss on the part of the appellant, its argument alleging that the General Court distorted facts and evidence relates to an aspect of the case which was not in fact taken into account by that court for the purpose of its review. The claim alleging distortion is therefore unfounded.
In the second place, for the same reason relating to that incorrect premiss, the General Court cannot be criticised for having refused the appellant’s request for a measure of inquiry.
It follows that the fourth ground of appeal must be rejected as unfounded.
By its fifth ground of appeal, the appellant claims that the General Court imposed on it an unreasonable burden of proof, requiring it to demonstrate the error made by the institutions, even though it did not have available to it the relevant information concerning the German competition authority’s ongoing investigation.
The Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie contend that the fifth ground of appeal is unfounded as the General Court applied the general principles derived from its case-law concerning the burden of proof and Photo USA failed to adduce any evidence to challenge the institutions’ submissions on that point.
The Court has previously held that it is for the parties pleading the illegality of a regulation such as the regulation at issue to adduce evidence to show the impact of factors capable of having an effect on the injury caused to the EU industry. Such parties must show in particular that those factors could have had such an impact that the claim alleging injury to the EU industry and a causal link between that injury and the dumped imports could not be relied on (see, to that effect, judgment of 19 December 2013 in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 28).
In the present case, it is apparent from paragraphs 74 and 75 above that the appellant based its dispute concerning the contested regulation before the General Court on an incorrect premiss.
In the absence of the results of the investigation pending before the German competition authority, the Council took into account, in adopting the contested regulation, the findings of the Commission’s investigation, which concluded that the microeconomic indicators had not been affected by the practices under examination and that the macroeconomic indicators had been affected only to a limited extent.
Accordingly, an unreasonable burden of proof was not imposed on the appellant. In order to challenge the contested regulation, it should have adduced evidence that called into question the Commission’s investigation and the Council’s conclusions and it was not necessary for that purpose for it to be apprised of the information pertaining to the ongoing investigation before the German competition authority.
It follows that the fifth ground of appeal must be rejected as unfounded.
It follows from all the foregoing that the appeal must be dismissed in its entirety as unfounded.
Under Article 138(1) of the Court’s Rules of Procedure, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As Photo USA has been unsuccessful and the Council, the Commission, Ancàp, Ceramie-Unie, Confindustria Ceramica and Verband der Keramischen Industrie have applied for costs, Photo USA must be ordered to pay the costs.