Judgments nº T-300/16 of Tribunal General de la Unión Europea, April 10, 2019

• Resolution Date: April 10, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-300/16

(Subsidies - Imports of tubes and pipes of ductile cast iron originating in India - Implementing Regulation (EU) 2016/387 - Imposition of a definitive countervailing duty - Indian scheme establishing an export tax on iron ore and a dual railway freight charge placing the transport of iron ore for export at a disadvantage - Article 3(1)(a)(iv) of Regulation (EC) No 597/2009 (replaced by Regulation (EU) 2016/1037) - Financial contribution - Provision of goods - Action consisting of ‘entrusting’ a private body to carry out a function constituting a financial contribution - Article 4(2)(a) of Regulation No 597/2009 - Specificity of a subsidy - Article 6(d) of Regulation No 597/2009 - Calculation of benefit - Injury to the Union industry - Calculation of price undercutting and the injury margin - Causal link - Access to confidential data of the subsidy investigation - Rights of the defence)

In Case T-300/16,

Jindal Saw Ltd, established in New Delhi (India),

Jindal Saw Italia SpA, established in Trieste (Italy),

represented by R. Antonini and E. Monard, lawyers,

applicants,

v

European Commission, represented by J.-F. Brakeland and G. Luengo, acting as Agents,

defendant,

supported by

Saint-Gobain Pam, established in Pont-à-Mousson (France), represented by O. Prost, A. Coelho Dias and C. Bouvarel, lawyers,

intervener,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron), originating in India (OJ 2016 L 73, p. 1), in so far as that regulation concerns the applicants,

THE GENERAL COURT (First Chamber, Extended Composition)

composed of I. Pelikánová, President, V. Valančius, P. Nihoul, J. Svenningsen (Rapporteur) and U. Öberg, Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 July 2018,

gives the following

Judgment

Background to the dispute

1 The applicants, Jindal Saw Ltd, a private company governed by Indian law, and Jindal Saw Italia SpA, an Italian company owned by Jindal Saw, are active in the production and sale of, inter alia, tubes and pipes of ductile cast iron intended for the Indian market and for export. During the relevant period in this case, three related companies sold Jindal Saw’s products in the European Union, namely, in addition to Jindal Saw Italia, Jindal Saw España SL and Jindal Saw Pipeline Solutions, UK (collectively, ‘Jindal Saw’s selling entities’).

2 On 10 November 2014, Saint-Gobain Pam, Saint-Gobain Pam Deutschland GmbH and Saint-Gobain Pam España S.A. (collectively, ‘the complainant’) submitted, in accordance with Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Union (OJ 2009 L 343, p.51), as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 (OJ 2014 L 18, p. 1) (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)), a complaint to the European Commission, pursuant to Article 5 of Regulation No 1225/2009, in order to have it carry out an anti-dumping investigation concerning imports of tubes and pipes of ductile cast iron originating in India.

3 By notice published in the Official Journal of the European Union on 20 December 2014 (OJ 2014 C 461, p. 35), the Commission initiated an anti-dumping proceeding concerning the imports in question (‘the anti-dumping proceeding’).

4 In parallel, on 26 January 2015, the complainant submitted, pursuant to Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Union (OJ 2009 L 188, p. 93), as amended by Regulation No 37/2014 (‘the basic regulation’) (replaced by Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55)), a complaint to the Commission, pursuant to Article 10 of the basic regulation, in order to have it carry out an anti-subsidy investigation, also concerning the imports in question, citing the existence of various subsidies from which Indian producers benefit, including a subsidy related to the acquisition of iron ore.

5 By notice published in the Official Journal on 11 March 2015 (OJ 2015 C 83, p. 4; ‘the notice of initiation’), the Commission initiated an anti-subsidy proceeding concerning the imports in question (‘the anti-subsidy proceeding’).

6 On 24 June 2015, Jindal Saw submitted observations to the Commission on certain aspects of the dumping analysis, the injury caused to the Union industry and the Union interest. Those observations covered both the anti-dumping proceeding and the anti-subsidy proceeding.

7 On 18 September 2015, the Commission adopted Implementing Regulation (EU) 2015/1559 imposing a provisional anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2015 L 244, p. 25; ‘the provisional anti-dumping regulation’). The product concerned was defined in that regulation as tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India.

8 On 23 October 2015, Jindal Saw submitted its observations on the provisional information in the anti-dumping proceeding, requesting at the same time the organisation of a hearing by the Commission.

9 A meeting was organised on 20 November 2015. On 24 November 2015, Jindal Saw sent an email to the Commission in which it confirmed certain elements discussed during that meeting, in particular those regarding the product concerned as defined in the provisional anti-dumping regulation and the calculation of the price undercutting, and, on 27 November 2015, it submitted to the Commission its observations following that meeting in the context of the anti-dumping proceeding. On 9 December 2015, it communicated to the Commission certain observations in the context of the anti-dumping proceeding and in the context of the anti-subsidy proceeding, in particular concerning (i) the characterisation of the export tax on iron ore as a subsidy, (ii) the injury caused to the Union industry, (iii) the replies to questionnaires made by the users of the product concerned as defined in the provisional anti-dumping regulation and, (iv) the exclusion from the definition of that product of tubes which have no internal coating or outer coating.

10 On 22 December 2015, the Commission informed Jindal Saw of the essential facts and considerations on the basis of which it was intended to impose a definitive anti-dumping duty on imports of that product and of the essential facts and considerations on the basis of which it was intended to impose a definitive countervailing duty on the same imports (‘the final disclosure’). Prior to submitting its comments, Jindal Saw requested, by email dated 12 January 2016, further information on four specific points. By email of 13 January 2016, it asked the Commission, in the context of the anti-subsidy proceeding, to disclose the calculations of the ‘rounded average’ transport cost. The Commission replied to that request by email of 19 January 2016.

11 On 20 January 2016, Jindal Saw submitted its comments on the final disclosure in the context of the anti-dumping proceeding and in the context of the anti-subsidy proceeding.

12 On 27 January 2016, the Commission sent Jindal Saw an additional final disclosure concerning corrections made to the subsidy calculations in the anti-subsidy proceeding. The deadline for submitting comments was 29 January 2016.

13 On 28 January 2016, Jindal Saw attended a meeting organised by the Commission. That meeting focused in particular on the conclusions regarding the subsidy constituted by the export tax on iron ore and the rail freight dual pricing regime for iron ore (Dual Freight Policy, ‘the DFP’), calculations related to the alleged subsidy package, the injury caused to the Union industry and the dumped imports. On the same day, the Commission sent a letter to Jindal Saw informing it of certain corrections made to the calculations of the indicators of injury to the Union industry in connection with the anti-dumping and anti-subsidy proceedings. The deadline for submitting comments was 1 February 2016.

14 On 1 February 2016, Jindal Saw sent two emails to the Commission, setting out its comments on, first, the corrections made to certain indicators of injury to the Union industry and, second, the meeting of 28 January 2016. Those emails also contained various requests for information.

15 Following the anti-dumping and anti-subsidy proceedings, the Commission adopted Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 1, ‘the contested regulation’), and Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53), which is the subject of an action for annulment in Jindal Saw and Jindal Saw Italia v Commission (T-301/16).

16 In the contested regulation, the product concerned was definitively defined as ‘tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron), with the exclusion of ductile pipes without internal and external coating ..., originating in India, currently falling within CN codes ex 7303 00 10 and ex 7303 00 90’ (‘the...