Judgments nº T-310/16 of Tribunal General de la Unión Europea, March 20, 2019

• Resolution Date: March 20, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-310/16

(Dumping - Imports of ceramic tiles originating in China - Article 11(4) and (5) and Article 17 of Regulation (EC) No 1225/2009 (now Article 11(4) and (5) and Article 17 of Regulation (EU) 2016/1036) - Refusal to grant new exporting producer treatment in accordance with Article 3 of Implementing Regulation (EU) No 917/2011 - Sampling - Individual examination - Confidentiality)

In Case T-310/16,

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

applicant,

v

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

defendant,

supported by

Cerame-Unie AISBL, established in Brussels (Belgium), represented by V. Akritidis, lawyer,

intervener,

APPLICATION, pursuant to Article 263 TFEU, for the annulment of the Commission’s Implementing Decision C(2016) 2136 final of 15 April 2016 rejecting a request for a new exporting producer treatment with regard to the definitive anti-dumping measures imposed on imports of ceramic tiles originating in the People’s Republic of China by Implementing Regulation (EU) No 917/2011,

THE GENERAL COURT (Fourth Chamber),

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

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 July 2018,

gives the following

Judgment

Background to the dispute

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

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 that led to the imposition of those definitive measures (‘the initial investigation’), since they were lower than the injury margins.

3 During the initial investigation, the European Commission had recourse to sampling, in accordance with 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 last amended 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), (‘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 exporting producers that were sampled were granted individual treatment, in accordance with Article 9(5) of the Basic Regulation (now Article 9(5) of Regulation 2016/1036) and were charged anti-dumping duties at rates specific to them individually. The exporting producers that cooperated in the initial investigation but were not included in the sample, along with one exporting producer that was included in the sample but was not granted individual treatment, were charged anti-dumping duty at a rate corresponding, in accordance with Article 9(6) of the Basic Regulation (now Article 9(6) of Regulation 2016/1036), to the weighted average of the sampled exporting producers’ dumping margins, that is to say 30.6%. Requests for individual examination pursuant to Article 17(3) of the Basic Regulation (now Article 17(3) of Regulation 2016/1036) were submitted by eight cooperating exporting producers. It was decided that an individual examination should be carried out for one of those exporting producers, as it was not unduly burdensome for the Commission to do so. The exporting producer in question was by far the largest of the eight exporting producers claiming individual examination. However, following final disclosure, it transpired that the exporting producer in question had not provided certain necessary information, and so the findings relating to it were established on the basis of the facts available, in accordance with Article 18 of the Basic Regulation (now Article 18 of Regulation 2016/1036). The exporting producer in question and the exporting producers that had not cooperated in the initial investigation were charged anti-dumping duty at a rate that was calculated by reference to the highest of the dumping margins found for a representative product type from a cooperating exporting producer, that is to say 69.7%.

4 The applicant did not take part in the administrative procedure which led to the adoption of the Definitive Regulation, and so its name does not appear in Annex I to the Definitive Regulation. Its imports of the product concerned were therefore subject to anti-dumping duty at the rate of 69.7%.

5 By letter of 7 September 2013, the applicant asked the Commission to carry out an interim review, limited to the dumping, in accordance with Article 11(3) of the Basic Regulation (now Article 11(3) of Regulation 2016/1036). The reason for that request was that the applicant had put in place a new distribution system, via an associated undertaking, and had introduced a new type of product that had not existed in the period from 1 April 2009 to 31 March 2010 (‘the initial investigation period’). The applicant indicated in its request for a review that it had not taken part in the initial investigation, since it had been unaware of the final destination of its products, which, during the initial investigation period, it had sold only through the intermediary of a Chinese trading company.

6 The Commission replied to the applicant’s letter on 25 October 2013. In its reply, the Commission gave the applicant general and preparatory information concerning in particular reviews in connection with the grant of new exporting producer treatment in accordance with Article 3 of the Definitive Regulation.

7 Article 3 of the Definitive Regulation provides as follows:

‘Where any producer from [China] 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 [European] 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%.’

8 By letter of 28 February 2014, the applicant reiterated its request for an interim review pursuant to Article 11(3) of the Basic Regulation and, as a subsidiary request, asked for the initiation of a new exporting producer treatment review (‘NEPT review’) under Article 3 of the Definitive Regulation. It stated inter alia in its letter that, during the initial investigation period, it had sold all of its output to a single trading company and that it had not known of the final destination of its products. It accepted that some of its tiles may have been exported to the European Union by that trading company and by that trading company’s partners, but stated that it did not know in which manner this was done. It also pointed out that it was not related to any of the companies that were subject to the anti-dumping duties in question and that it had entered into an irrevocable contractual obligation to export its products in the very near future.

9 By letters of 8 April, 2 June and 17 June 2014, the applicant reiterated its requests for an interim review and the grant of new exporting producer treatment. In that context, it stated that it had not made ‘direct exports’ to the European Union and that it was the victim of discriminatory treatment in relation to one of its competitors that had requested and obtained an interim review and it advised the Commission that it might bring an action against the Commission for failure to act if it did not adopt an appropriate decision.

10 By letter of 3 September 2014, the Commission replied that all the information required by law needed to be submitted in order for it to be able to proceed with the initiation and conclusion of the interim review investigation, clarified a number of points relating to the review procedure and concluded that it did not yet have all the necessary documents. In its letter, the Commission invited the applicant to complete the questionnaire for applications for the status of trader operating under market-economy conditions, provided for in Article 2(7)(c) of the Basic Regulation (now Article 2(7)(c) of Regulation 2016/1036). The Commission also invited the applicant to submit evidence supporting its allegations that it had not exported to the European Union during the initial investigation period, that it was not related to any of the undertakings subject to the anti-dumping measures in question and that it had entered into a contract to supply the goods in question after the export period. It confirmed that, if the conditions for the application of Article 3 of the Definitive Regulation were met, the applicant would become subject to the same rate of anti-dumping duty as exporting producers that had cooperated in the initial investigation but had not been included in the sample, that is to say 30.6%.

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