Judgments nº T-299/05 of Court of First Instance of the European Communities, March 18, 2009

• Resolution Date: March 18, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-299/05

In Case T-299/05,

Shanghai Excell M&E Enterprise Co. Ltd, established in Shanghai (China),

Shanghai Adeptech Precision Co. Ltd, established in Huaxin Town (China),

represented by R. MacLean, Solicitor, and E. Gybels, lawyer,

applicants,

v

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

defendant,

supported by

Commission of the European Communities, represented initially by K. Talabér-Ritz and E. Righini, and subsequently by H. van Vliet and K. Talabér-Ritz, acting as Agents,

intervener,

ACTION for annulment of Articles 1 and 2 of Council Regulation (EC) No 692/2005 of 28 April 2005 amending Regulation (EC) No 2605/2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales (REWS) originating, inter alia, in the People-s Republic of China (OJ 2005 L 112, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of V. Tiili (Rapporteur), President, F. Dehousse and I. Wiszniewska-Bia-ecka, Judges,

Registrar: K. Poche-, Administrator,

having regard to the written procedure and further to the hearing on 20 May 2008,

gives the following

Judgment

Background to the dispute

A - Investigation and original regulation

1 On 27 November 2000, the Council adopted Regulation No (EC) 2605/2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales (REWS) originating in the People-s Republic of China, the Republic of Korea and Taiwan (OJ 2000 L 301, p. 42) (-the original regulation-).

2 During the investigation which led to the adoption of that regulation (-the original investigation-), the Commission inter alia examined whether there had been dumping of imports from those three countries into the European Community of certain electronic weighing scales having a maximum weighing capacity not exceeding 30 kg, for use in the retail trade, which incorporate a digital display of the weight, unit price and price to be paid (whether or not including a means of printing that data) (-the electronic weighing scales-).

3 As regards China, three exporting producers decided to cooperate in the investigation and received individual treatment. Those three companies requested market economy status (-MES-) pursuant to Article 2(7) of 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 by Council Regulation (EC) No 905/98 of 27 April 1998 (OJ 1998 L 128, p. 18), as rectified (-the basic regulation-). However, the Council took the view that the criteria set out in Article 2(7)(c) of that regulation had not been met and rejected that application. Consequently, it was necessary to compare the export prices of the Chinese exporting producers with a normal value established for an analogous market economy country, pursuant to Article 2(7) of the basic regulation (recitals 45 to 48 and 52 in the preamble to the original regulation).

4 The institutions took the view that Indonesia was the most appropriate market economy third country for the purpose of establishing normal value (recitals 49 and 50 in the preamble to the original regulation). That value was thus established in accordance with Article 2(2) and (3) of the basic regulation on the basis of the normal values established for an Indonesian undertaking, namely PT Toshiba TEC Corporation Indonesia (-Toshiba Indonesia-) (recital 53 in the preamble to the original regulation).

5 The Council compared the normal value and the export price on an ex-factory basis and at the same level of trade, which showed that there was a dumping margin in respect of the three exporting producers in question ranging from 9% to 12.8% (recital 58 of the original regulation).

6 Since the level of cooperation from all the other Chinese exporting producers was low, the residual dumping margin for them was set at the level of the highest individual dumping margin for a single model of electronic weighing scale produced by the cooperating companies, namely 30.7 %.

7 Consequently, Article 1(2) of the original regulation imposed on the three cooperating Chinese exporting producers individual anti-dumping duties whose maximum rate was 12.8% and a duty of 30.7% on all the other Chinese companies.

B - Review procedure

8 The applicants, the related companies Shanghai Excell M&E Enterprise Co. Ltd (-Shanghai Excell-) and Shanghai Adeptech Precision Co. Ltd (-Shanghai Adeptech-), manufacture electronic weighing scales in China. Shanghai Excell and Shanghai Adeptech began to export electronic weighing scales to the Community in June 2003. An anti-dumping duty rate of 30.7% was applied to them.

9 The applicants submitted to the Commission a request for a -new exporter- review of the original regulation within the meaning of Article 11(4) of the basic regulation. They claimed that they had not exported any electronic weighing scales to the Community during the original investigation period, namely from 1 September 1998 to 31 August 1999 (-the original investigation period-) and that they were not related to any of the exporting producers which are subject to the measures in question.

10 By Commission Regulation (EC) No 1408/2004 of 2 August 2004 initiating a -new exporter- review of Council Regulation No 2605/2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales (REWS) originating, inter alia, in the People-s Republic of China, repealing the duty with regard to imports from two exporters in this country and making these imports subject to registration (OJ 2004 L 256, p. 8), the Commission initiated the review with regard to the applicants. The anti-dumping duty of 30.7% on their electronic weighing scales was repealed and the Commission directed the customs authorities to take appropriate steps to register the imports of those scales, that registration being due to expire nine months following the date of entry into force of Regulation No 1408/2004.

11 On 23 February 2005, the Commission sent the applicants a letter disclosing the reasons why it intended to grant them individual treatment and to impose on them an anti-dumping duty of 54.8%. By letter of 7 March 2005, the applicants challenged the Commission-s position.

C - The contested regulation

12 On 28 April 2005, the Council adopted Regulation (EC) No 692/2005 of 28 April 2005 amending Regulation (EC) No 2605/2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales (REWS) originating, inter alia, in the People-s Republic of China (OJ 2005 L 112, p. 1) (-the contested regulation-).

13 In the contested regulation, the Council confirmed that the applicants were new exporters for the purpose of Article 11(4) of the basic regulation (recitals 9 to 11).

14 The Council took the view that, as the applicants are established in China, normal value should be determined, as in the original regulation, in accordance with Article 2(7)(a) of the basic regulation, on the ground that the applicants did not meet the first two criteria laid down in Article 2(7)(c) of the basic regulation and that market economy conditions therefore did not prevail in respect of the manufacture and sale by them of electronic weighing scales (recitals 12 to 26). The Council nevertheless concluded that the applicants met the requirements for individual treatment as set forth in Article 9(5) of the basic regulation (recitals 27 and 28).

15 As in the original regulation, the Council calculated normal value in accordance with Article 2(7)(a) of the basic regulation, on the basis of the price or constructed value in an analogous country, namely Indonesia. The normal value was calculated on the basis of the information received from Toshiba Indonesia.

16 The Council compared the normal value and the export price on an ex-factory basis and at the same level of trade, and account was taken, in accordance with Article 2(10) of the basic regulation, of differences affecting prices and price comparability (recitals 42 to 45). Lastly, the Council compared the weighted average normal value of each type of the product concerned with the weighted average export price and concluded that there was a dumping margin of 52.6% (recitals 55 and 56).

17 Accordingly, Article 1(1) of the contested regulation imposed an anti-dumping duty of 52.6% on imports into the Community of products manufactured by the applicants.

18 Article 1(2) of the contested regulation retroactively applied duties of the same rate to the imports which had been registered pursuant to Article 3 of Regulation No 1408/2004. The applicants thus had a duty of 52.6% imposed on them as from August 2004. Lastly, Article 1(2) of the contested regulation directed European Union customs authorities to cease the registration of imports of products manufactured by the applicants.

19 Pursuant to Article 2 of the contested regulation, that regulation entered into force on the day following its publication in the Official Journal, that is to say on 4 May 2005.

20 The duties imposed by the original regulation, as amended by the contested regulation, expired on 1 December 2005 pursuant to Article 11(2) of the basic regulation. Following publication of the notice of impending expiry of the duties, the Community industry did not request an expiry review pursuant to Article 11(2) of the basic regulation.

Procedure and forms of order sought

21 By application lodged at the Registry of the Court of First Instance on 26 July 2005, the applicants brought this action.

22 By document lodged at the Registry of the Court on 18 November 2005, the Commission sought leave to intervene in support of the form of order sought by the Council. That application to intervene was granted by order of the President of the Third Chamber of the Court on 12 January 2006.

23 Following a change in the composition of the Chambers of the...