Judgments nº T-314/06 of The General Court, September 13, 2010

• Resolution Date: September 13, 2010
• Issuing Organization: The General Court
• Decision Number: T-314/06

In Case T‑314/06,

Whirlpool Europe Srl, established in Comerio (Italy), represented by M. Bronckers and F. Louis, lawyers,

applicant,

supported by

Italian Republic, represented by G. Albenzio, lawyer,

and by

European Committee of Domestic Equipment Manufacturers (CECED), established in Brussels (Belgium), represented by Y. Desmedt and A. Verheyden, lawyers,

interveners,

v

Council of the European Union, represented by J.-P. Hix, acting as Agent, and G. Berrisch, lawyer,

defendant,

supported by

European Commission, represented by H. van Vliet and T. Scharf, acting as Agents,

and by

LG Electronics, Inc., established in Seoul (South Korea), represented initially by L. Ruessmann and P. Hecker, and subsequently by L. Ruessmann and A. Willems, lawyers,

interveners,

APPLICATION for the annulment in part of Council Regulation (EC) No 1289/2006 of 25 August 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain side‑by‑side refrigerators originating in the Republic of Korea (OJ 2006 L 236, p. 11),

THE GENERAL COURT (Sixth Chamber),

composed of A.W.H. Meij (Rapporteur), President, V. Vadapalas and L. Truchot, Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 11 November 2009,

gives the following

Judgment

Legal context

1 The basic anti‑dumping legislation is constituted by Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended (‘the basic regulation’) (replaced by 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, corrigendum OJ 2010 L 7, p. 22)).

2 Article 1(1) and (4) of the basic regulation (now Article 1(1) and (4) of Regulation No 1225/2009) state:

‘1. An anti-dumping duty may be applied to any dumped product whose release for free circulation in the Community causes injury.

...

4. For the purpose of this Regulation, the term “like product” shall be interpreted to mean a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which although not alike in all respects has characteristics closely resembling those of the product under consideration.’

   3 Article 15 of the basic regulation (now Article 15 of Regulation No 1225/2009) provides:

   ‘1. Any consultations provided for in this Regulation shall take place within an Advisory Committee, which shall consist of representatives of each Member State, with a representative of the Commission as chairman. Consultations shall be held immediately at the request of a Member State or on the initiative of the Commission and in any event within a period of time which allows the time-limits set by this Regulation to be adhered to.

2. The Committee shall meet when convened by its chairman. He shall provide the Member States, as promptly as possible, but no later than 10 working days before the meeting, with all relevant information.

3. Where necessary, consultation may be in writing only; in that event, the Commission shall notify the Member States and shall specify a period within which they shall be entitled to express their opinions or to request an oral consultation which the chairman shall arrange, provided that such oral consultation can be held within a period of time which allows the time-limits set by this Regulation to be adhered to.

4. Consultation shall cover, in particular:

   …

   (d) the measures which, in the circumstances, are appropriate to prevent or remedy the injury caused by dumping and the ways and means of putting such measures into effect.’

   4 The deadline of 10 working days which Article 15(2) of the basic regulation (now Article 15(2) of Regulation No 1225/2009) grants the chairman of the Advisory Committee to provide the Member States with all relevant information was introduced into the basic regulation by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12), recital 17 in the preamble to which states the following:

   ‘Information provided to Member States in the Advisory Committee is often of a highly technical nature and involves an elaborate economic and legal analysis. In order to provide Member States with sufficient time to consider this information, it should be sent at the latest 10 days before the date of a meeting set by the chairman of the Advisory Committee.’

   5 Article 20 of the basic regulation (now Article 20 of Regulation No 1225/2009) states:

   ‘1. The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.

2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.

   …

4. Final disclosure shall be given in writing. It shall be made, due regard being had to the protection of confidential information, as soon as possible and, normally, not later than one month prior to a definitive decision or the submission by the Commission of any proposal for final action pursuant to Article 9. Where the Commission is not in a position to disclose certain facts or considerations at that time, these shall be disclosed as soon as possible thereafter. Disclosure shall not prejudice any subsequent decision which may be taken by the Commission or the Council but where such decision is based on any different facts and considerations, these shall be disclosed as soon as possible.

5. Representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter.’

   Background to the dispute

   1. The market concerned by the investigation

   6 The market for combined refrigerator-freezers, which was the subject of the investigation following which the contested anti‑dumping measures were adopted, is made up of three segments:

   – the bottom‑mount segment, in with the freezer compartment is below the refrigerator compartment;

   – the top-mount segment, in which the freezer compartment is above the refrigerator compartment;

   – the side-by-side segment, in which the two swing doors open to a freezer compartment and a refrigerator compartment side-by-side.

   7 Recently a new type of three‑door combined refrigerator-freezer came onto the market, with the freezer compartment below the refrigerator compartment all in one piece. The freezer compartment is fitted with one door, whereas two side‑by‑side swing doors open to the refrigerator compartment.

   2. The initial stage of the investigation procedure

   8 On 18 April 2005 the applicant, Whirlpool Europe Srl, lodged a complaint with the Commission of the European Communities on the basis of the basic regulation against imports of certain refrigerators originating in South Korea.

   9 On 2 June 2005 the Commission published the notice of initiation of an anti‑dumping proceeding concerning imports of certain side‑by‑side refrigerators originating in the Republic of Korea (OJ 2005 C 135, p. 4). According to that notice, the product allegedly being dumped was combined refrigerator-freezers of a capacity exceeding 400 litres, fitted with at least two separate external doors placed side-by-side.

   10 The Commission sent questionnaires to all the parties known to be concerned by the investigation.

   11 A Korean company, LG Electronics, Inc. (‘LG’), claimed that all large refrigerators should have been included in the definition of the product being investigated, in so far as they all serve the same purpose, namely the conservation of food and beverages, and most of them have both a refrigerator compartment and a freezer compartment.

   12 LG also submitted that the definition of the product concerned in the notice of initiation was erroneous. It stated that in the industry side-by-side refrigerators are understood to be refrigerators with a refrigerator compartment and a freezer compartment situated side‑by-side, with a separate external door for each compartment. In its view, if the definition of the product concerned in the notice of initiation were maintained, certain bottom‑mount freezers, namely combined refrigerator-freezers with two doors on the refrigerator compartment above and one door on the freezer compartment below, would be included in the investigation, whereas comparable models with one door on each compartment would be excluded. LG therefore requested that all combined refrigerator-freezers with three or more doors be excluded from the procedure or that the scope of the procedure be broadened to include all combined refrigerator-freezers.

   13 In short, LG submitted that it was not the external characteristics of the models, notably the doors, which are relevant, but their inner configuration. In particular, LG considered that the alignment of the refrigerator and freezer compartments was the essential basic distinguishing characteristic of a side-by-side refrigerator.

   14 On 14 November 2005 the applicant provided the Commission with analyses which appeared in consumer publications that supported the...