Judgments nº T-749/16 of Tribunal General de la Unión Europea, May 08, 2019

• Resolution Date: May 08, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-749/16

(Dumping - Imports of certain cold-rolled flat steel products originating in China and Russia - Definitive anti-dumping duty - Registration of imports - Retroactive application of the definitive anti-dumping duty - Implementing Regulation (EU) 2016/1329 - Importer’s awareness of the dumping and injury - Further substantial rise in imports likely to seriously undermine the remedial effect of the definitive anti-dumping duty - Article 10(4)(c) and (d) of Regulation (EU) 2016/1036) In Case T-749/16,

Stemcor London Ltd, established in London (United Kingdom),

Samac Steel Supplies Ltd, established in London,

represented by F. Di Gianni and C. Van Hemelrijck, lawyers,

applicants,

v

European Commission, represented by J.-F. Brakeland, N. Kuplewatzky, T. Maxian Rusche and E. Schmidt, acting as Agents,

defendant,

supported by

Eurofer, Association européenne de l’acier, ASBL, established in Luxembourg (Luxembourg) represented by O. Prost, A. Coelho Dias and S. Seeuws, lawyers,

intervener,

APPLICATION pursuant to Article 263 TFEU seeking the annulment in part of Commission Implementing Regulation (EU) 2016/1329 of 29 July 2016 levying the definitive anti-dumping duty on the registered imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2016 L 210, p. 27),

THE GENERAL COURT (Second Chamber),

composed of M. Prek, President, E. Buttigieg (Rapporteur) and B. Berke, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 23 October 2018,

gives the following

Judgment

Background to the dispute

1 The applicants, Stemcor London Ltd and Samac Steel Supplies Ltd, are two companies governed by English law which, within the European Union, import and trade in, inter alia, cold-rolled flat steel products, such as those referred to in Article 1(1) of Commission Implementing Regulation (EU) 2016/1329 of 29 July 2016 levying the definitive anti-dumping duty on the registered imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2016 L 210, p. 27) (‘the contested regulation’).

2 Following a complaint lodged on 1 April 2015 by Eurofer, Association européenne de l’acier, ASBL (‘Eurofer’), the European Commission published, on 14 May 2015, a notice of initiation of an anti-dumping proceeding concerning imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2015 C 161, p. 9) (‘the notice of initiation of investigation’), pursuant to 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), 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 basic regulation’)).

3 The investigation of dumping and injury covered the period from 1 April 2014 to 31 March 2015 (‘the investigation period’), while the examination of trends relevant for the assessment of injury covered the period from 1 January 2011 to the end of the investigation period.

4 Following a request made by Eurofer, the Commission adopted, pursuant to Article 14(5) of Regulation No 1225/2009, Implementing Regulation (EU) 2015/2325 of 11 December 2015 making imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation subject to registration (OJ 2015 L 328, p. 104), which entered into force on 13 December 2015.

5 On 11 January 2016, the applicants submitted to the Commission their written observations concerning Implementing Regulation 2015/2325. They argued that the conditions for the retroactive imposition of anti-dumping duties on the products concerned had not been met and that the registration of the imports and the retroactive imposition of those duties would have significant adverse consequences for importers and users of the products concerned in the European Union. On 14 January 2016, the applicants set out their views during a hearing organised at their request by the Commission.

6 By its Implementing Regulation (EU) 2016/181 of 10 February 2016 imposing a provisional anti-dumping duty on imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2016 L 37, p. 1), the Commission imposed a provisional anti-dumping duty on the products concerned with effect from 13 February 2016 and directed the customs authorities to discontinue the registration of imports of the products concerned.

7 On 17 February 2016, the Commission sent the applicants and other importers a request for information regarding imports of the products concerned between 1 April 2015 and 31 January 2016. By letters of 9 and 17 March 2016, the applicants submitted their responses to the Commission’s request for information.

8 On 26 February 2016, the applicants again set out their views during a hearing organised at their request by the Commission and repeated that the conditions for the retroactive imposition of anti-dumping duties had not been met.

9 On 8 June 2016, the Commission sent the applicants its definitive conclusions, in which it stated its intention to levy retroactively the definitive anti-dumping duty on the registered imports.

10 On 15 June 2016, the applicants set out their views during a hearing held before the Hearing Officer and contested the findings contained in the Commission’s definitive disclosure.

11 By its Implementing Regulation (EU) 2016/1328 of 29 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cold rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2016 L 210, p. 1), the Commission imposed a definitive anti-dumping duty on the products concerned and decided to collect definitively the provisional duty imposed on those products. On the same day, pursuant to Article 10(4) of the basic regulation, the Commission adopted the contested regulation, which provides for the retroactive levying of the definitive anti-dumping duty on the imports which were registered in accordance with Implementing Regulation 2015/2325.

Procedure and forms of order sought

12 By application lodged at the Court Registry on 28 October 2016, the applicants brought the present action.

13 By document lodged at the Court Registry on 1 March 2017, Eurofer applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

14 By document lodged at the Court Registry on 30 March 2017, the applicants applied for certain information contained in the application and the annexes thereto to be treated as confidential with regard to Eurofer if the latter were to be granted leave to intervene. The applicants included non-confidential versions of those documents as annexes to that application for confidential treatment.

15 By document lodged at the Court Registry on 21 April 2017, the applicants applied for certain information contained in the defence and the annexes thereto to be treated as confidential with regard to Eurofer if the latter were to be granted leave to intervene.

16 By order of 3 May 2017, the President of the Second Chamber of the General Court granted Eurofer leave to intervene in support of the form of order sought by the Commission and ordered that the non-confidential versions of the documents in question be sent to Eurofer.

17 By document lodged at the Court Registry on 15 May 2017, the applicants applied for certain information contained in the reply and the annexes thereto to be treated as confidential with regard to Eurofer. They included non-confidential versions of those documents as annexes to that application for confidential treatment.

18 By document lodged at the Court Registry on 16 August 2017, the applicants submitted a reasoned application under Article 106 of the Rules of Procedure of the General Court to be heard during the oral part of the procedure.

19 The applicants claim that the Court should:

- annul the contested regulation in so far as it concerns them;

- order the Commission to pay the costs.

20 The Commission contends that the Court should:

- dismiss the action as unfounded;

- order the applicants to pay the costs.

21 The intervener contends that the Court should:

- dismiss the action as unfounded;

- order the applicants to pay the costs.

Law

22 In support of the action, the applicants rely on three pleas in law. The first plea in law alleges incorrect interpretation and application of the condition laid down in Article 10(4)(c) of the basic regulation relating to the importer’s being ‘aware’ of the extent of the dumping. The second plea in law alleges that the assessment of the condition laid down in Article 10(4)(d) of the basic regulation relating to a ‘further substantial rise in imports’ was incorrectly based on a period starting in the first full month after publication of the initiation of the investigation in the Official Journal of the European Union and ending in the last full month preceding the imposition of provisional measures. Finally, the third plea in law alleges misinterpretation of the condition requiring that the further rise in imports be ‘likely to seriously undermine the remedial effect’ within the meaning of Article 10(4)(d) of the basic regulation.

The first plea in law, alleging incorrect interpretation and application of the condition laid down in Article 10(4)(c) of the basic regulation relating to the importer’s being ‘aware’ of the dumping and the extent thereof

The first limb of the first plea in law

23 By the first limb of the...