Judgments nº T-422/13 of The General Court, April 05, 2017

• Resolution Date: April 05, 2017
• Issuing Organization: The General Court
• Decision Number: T-422/13

(Dumping - Imports of certain polyethylene terephthalate (PET) originating in India, Taiwan and Thailand - Expiry review - Commission proposal to renew measures - Council decision to terminate the review without imposing measures - Action for annulment - Article 11(2) of Regulation (EC) No 1225/2009 - Likelihood of recurrence of material injury - Article 21(1) of Regulation No 1225/2009 - Interest of the European Union - Manifest errors of assessment - Obligation to state reasons - Action for damages)

In Case T-422/13,

Committee of Polyethylene Terephthalate (PET) Manufacturers in Europe (CPME), established in Brussels (Belgium), and the other applicants whose names are indicated in the annex, (1) represented by L. Ruessmann, lawyer, and J. Beck, Solicitor,

applicants,

supported by

European Commission, represented by J.-F. Brakeland, A. Demeneix and M. França, acting as Agents,

intervener,

v

Council of the European Union, represented by S. Boelaert and J.-P. Hix, acting as Agents, assisted by B. O’Connor, Solicitor, and S. Gubel, lawyer,

defendant,

supported by

European Federation of Bottled Waters (EFBW), established in Brussels,

Caiba, SA, established in Paterna (Spain),

Coca-Cola Enterprises Belgium (CCEB), established in Anderlecht (Belgium),

Danone, established in Paris (France),

Nestlé Waters Management & Technology, established in Issy-les-Moulineaux (France),

Pepsico International Ltd, established in London (United Kingdom),

and

Refresco Gerber BV, established in Rotterdam (Netherlands),

represented by E. McGovern, Barrister,

interveners,

APPLICATION (i) under Article 263 TFEU seeking the partial annulment 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), inasmuch as it rejected the proposal to impose a definitive anti-dumping duty on imports originating in India, Taiwan and Thailand and terminated the review proceeding concerning those imports, and, (ii), under Article 268 TFEU for damage allegedly suffered by the applicants,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, I. Pelikánová and E. Buttigieg (Rapporteur), Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 28 June 2016,

gives the following

Judgment

Legal framework

1 The decision at issue in the present case was adopted on the basis 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, corrigendum OJ 2010 L 7, p. 22, ‘the basic regulation’), before its amendment by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1) and its repeal by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21).

2 Article 11(2) of the basic regulation states:

‘A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the [European] Commission, or upon request made by or on behalf of [EU] producers, and the measure shall remain in force pending the outcome of such review.

An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury. Such likelihood may, for example, be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping.

In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the [EU] producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the [Union] producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.’

3 Under Article 11(5) of the basic regulation, ‘the relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4’.

4 Article 9(4) of the basic regulation provided as follows:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [Union] interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission ...’

5 Pursuant to Article 15(1) of the basic regulation, ‘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’.

6 Article 20(4) of the basic regulation states:

‘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, no 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.’

7 Article 20(5) of the basic regulation provided that ‘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’.

8 Article 21(1) of the basic regulation provided:

‘A determination as to whether the [EU] interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers, and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the [EU] interest to apply such measures.’

Background to the dispute

9 The present case concerns a review proceeding initiated under Article 11(2) of the basic regulation on account of the expiry of the anti-dumping duties imposed by the Council of the European Union since 2000 on imports of certain polyethylene terephthalate (PET), notably from India, Taiwan and Thailand (‘the anti-dumping duties at issue’).

10 Since 2000, the Council had also imposed anti-dumping duties on imports of certain PET from Indonesia and Malaysia, as well as countervailing duties on imports of certain PET from, inter alia, India (‘the countervailing duties at issue’).

11 On 25 November 2011, following the publication in the Official Journal of the European Union of two notices of expiry concerning all the anti-dumping duties mentioned in paragraphs 9 and 10 above (OJ 2011 C 122, p. 10) and the countervailing duties at issue (OJ 2011 C 116, p. 10), the Commission received two requests from the European Union’s PET producer industry for the initiation of an expiry review in respect of the anti-dumping and countervailing duties on the basis of, respectively, Article 11(2) of the...