Judgments nº T-654/16 of Tribunal General de la Unión Europea, September 11, 2018

• Resolution Date: September 11, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-654/16

(Dumping - Imports of ceramic tiles originating in China - Article 11(3) and (5) and Article 17 of Regulation (EC) No 1225/2009 (now Article 11(3) and (5) and Article 17 of Regulation (EU) 2016/1036) - Rejection of a request for a partial interim review, limited to dumping aspects, of the definitive anti-dumping duty established by Implementing Regulation (EU) No 917/2011 - Lasting change in circumstances - Sampling - Individual examination - No cooperation in the investigation that led to the adoption of the definitive measures)

In Case T-654/16,

Foshan Lihua Ceramic Co. Ltd., established in Foshan City (China), represented by B. Spinoit and D. Philippe, lawyers,

applicant,

v

European Commission, represented by M. França, T. Maxian Rusche, N. Kuplewatzky and A. Demeneix, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU for annulment of Commission Implementing Decision C(2016) 4259 final of 11 July 2016 rejecting a request for a partial interim review limited to dumping aspects with regard to the definitive anti-dumping measures imposed on imports of ceramic tiles originating in the People’s Republic of China by Council Implementing Regulation (EU) No 917/2011 of 12 September 2011,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 28 November 2017,

gives the following

Judgment

Background to the dispute

1 The applicant, Foshan Lihua Ceramic Co. Ltd., established in Foshan (China), is a producer of ceramic tiles.

2 On 12 September 2011, the Council of the European Union adopted Implementing Regulation (EU) No 917/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1) (‘the definitive regulation’). The anti-dumping duty rates were based on dumping margins established by the investigation since they were lower than the injury margins.

3 During the investigation that led to the imposition of those definitive measures, the European Commission had recourse to sampling pursuant to Article 17 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), as amended most recently by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 (OJ 2014 L 18, p. 1), (‘the basic regulation’) (replaced 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)). The sampled exporting producers granted individual treatment in accordance with Article 9(5) of the basic regulation (now Article 9(5) of Regulation 2016/1036) were made subject to individual anti-dumping duty rates. Cooperating exporting producers not sampled during the investigation and a sampled exporting producer not granted individual treatment were made subject to a rate of anti-dumping duty, calculated in accordance with Article 9(6) of the basic regulation (now Article 9(6) of Regulation 2016/1036), as the weighted average margin of dumping established for the parties in the sample, namely 30.6%. Requests for individual examination were submitted by eight cooperating exporting producers pursuant to Article 17(3) of the basic regulation (now Article 17(3) of Regulation 2016/1036). It was decided to grant individual examination for only one of those exporting producers, as it was not unduly burdensome to do so. That exporting producer represented by far the largest export volume of the eight exporting producers requesting individual examination. However, following final disclosure, it became apparent that that exporting producer had not provided certain necessary information, with the result that the findings in regard to that exporting producer were made on the basis of the facts available, in accordance with Article 18 of the basic regulation (now Article 18 of Regulation 2016/1036). That exporting producer and the non-cooperating exporting producers were made subject to an anti-dumping duty rate established by using the highest of the dumping margins found for a representative product type from a cooperating exporting producer, namely 69.7%.

4 The applicant did not participate in the administrative procedure that led to the adoption of the definitive regulation, with the result that its name is not included in Annex I to the definitive regulation. Its imports of the goods in question are therefore subject to a rate of 69.7%.

5 By letter of 7 September 2013, the applicant submitted to the Commission a request for a partial interim review, limited to dumping aspects, under Article 11(3) of the basic regulation (now Article 11(3) of Regulation 2016/1036). The grounds substantiating that request were, first, a new distribution system implemented by the applicant that included the establishment of a related company and, second, the introduction of a new product type that did not exist during the period between 1 April 2009 and 31 March 2010 (‘the investigation period’). The applicant stated in its request for a review that it had not participated in the original investigation since it did not know the final destination of its goods, which it sold during the investigation period solely to one Chinese trading company. In so far as it claimed that it had not exported the goods in question to the European Union during the investigation period, the Commission’s services drew the applicant’s attention to the fact that, if that claim were true, the appropriate legal way for being attributed the rate of duty of 30.6% was to request new exporting producer treatment (‘NEPT’) in accordance with Article 3 of the definitive regulation. That provision reads as follows:

‘Where any [Chinese producer] provides sufficient evidence to the Commission that it did not export the goods described in Article 1(1) originating in [China] during the period of investigation (1 April 2009 to 31 March 2010), that it is not related to an exporter or producer subject to the measures imposed by this Regulation and that it has either actually exported the goods concerned or has entered into an irrevocable contractual obligation to export a significant quantity to the Union after the end of the period of investigation, the Council, acting by simple majority on a proposal by the Commission, after consulting the Advisory Committee, may amend Article 1(2) in order to attribute to that producer the duty applicable to cooperating producers not in the sample, i.e. 30.6%.’

6 Following a series of exchanges with the Commission, the applicant requested, by letter of 10 February 2015, a suspension of the processing of its request for an interim review pursuant to Article 11(3) of the basic regulation so as not to delay its request for NEPT, which it submitted during that exchange.

7 On 28 January 2016, the applicant requested the Commission to resume processing its request for an interim review. On 13 April 2016, the Commission sent the applicant a general disclosure document designed to set out the essential facts and considerations on the basis of which the Commission intended to refuse that request. By decision of 15 April 2016, the Commission refused the request for NEPT. It found, inter alia, that the investigation had been unable to establish that the applicant had not exported the product in question originating in China to the European Union during the investigation period and that it was not related to an exporter or producer subject to the measures imposed by the definitive regulation. That decision was contested by the applicant in Case T-310/16, Foshan Lihua Ceramic v Co...