Judgments nº T-228/17 of Tribunal General de la Unión Europea, September 19, 2019

• Resolution Date: September 19, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-228/17

(Dumping - Imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in China and Taiwan - Imposition of definitive anti-dumping duties - Normal value - Adjustments - Manifest error of assessment - Obligation to state reasons)

In Case T-228/17,

Zhejiang Jndia Pipeline Industry Co. Ltd, established in Wenzhou (China), represented by S. Hirsbrunner, lawyer,

applicant,

v

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

defendant,

supported by

Council of the European Union, represented by B. Driessen and H. Marcos Fraile, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2017/141 of 26 January 2017 imposing definitive anti-dumping duties on imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in the People’s Republic of China and Taiwan (OJ 2017 L 22, p. 14),

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,

Registrar: F. Oller, Administrator,

having regard to the written part of the procedure and further to the hearing on 22 January 2019,

gives the following

Judgment

1. Background to the dispute

   1 The applicant, Zhejiang Jndia Pipeline Industry Co. Ltd, is a company established in China that produces and exports to the European Union stainless steel tube and pipe butt-welding fittings (‘tube and pipe fittings’).

   2 Following a complaint lodged on 14 September 2015 by the Defence Committee of the Stainless Steel Butt-welding Fittings Industry of the European Union, on 29 October 2015 the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in the People’s Republic of China and Taiwan (OJ 2015 C 357, p. 5), 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 Community (OJ 2009 L 343, p. 51, and 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)). It must be borne in mind that, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 45 and the case-law cited). By contrast, the substantive rules must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (judgments of 12 November 1981, Meridionale Industria Salumi and Others, 212/80 to 217/80, EU:C:1981:270, paragraph 9, and of 11 December 2008, Commission v Freistaat Sachsen, C-334/07 P, EU:C:2008:709, paragraph 44). Accordingly, reference will be made below, for the substantive rules, to Regulation No 1225/2009 and, for the procedural rules, to Regulation No 1225/2009 or Regulation 2016/1036 depending on the date on which the procedure in question was completed.

   3 The investigation of dumping and injury covered the period from 1 October 2014 to 30 September 2015 (‘the investigation period’). The examination of trends relevant for the injury analysis covered the period from 1 January 2012 to 30 September 2015 (‘the period considered’).

   4 The China Chamber of Commerce of Metals, Minerals and Chemical Importers & Exporters (‘the CCCMC’) represented certain Chinese producers of tube and pipe fittings in the procedure before the Commission.

   5 A verification was carried out at the applicant’s premises in accordance with Article 16 of Regulation No 1225/2009 (replaced by Article 16 of Regulation 2016/1036).

   6 The applicant did not submit a claim for market economy treatment under Article 2(7)(b) of Regulation No 1225/2009 (replaced by Article 2(7)(b) of Regulation 2016/1036).

   7 On 25 July 2016 the CCCMC submitted comments on the provisional disclosure. It requested the Commission to disclose all of the information which it had at its disposal concerning the Union industry at the time of the provisional disclosure.

   8 On 27 October 2016 the Commission issued its final disclosure, setting 16 November 2016 as the time limit for submitting comments. In that disclosure, the Commission notified its decision to use Taiwan as an analogue country for the purpose of establishing normal value in relation to exporting producers in the People’s Republic of China.

   9 On 16 November 2016 the CCCMC and the applicant submitted comments on the final disclosure. The applicant claimed that the prescribed time limit for submitting its comments was inadequate in view of the significance of some of the data released for the first time in the final disclosure. The CCCMC requested a hearing before the Commission. The Commission proposed a date for holding the hearing which the CCCMC considered to be too close in the light of the necessary formalities for the persons concerned to arrive in Brussels (Belgium), with the result that the hearing did not take place.

   10 On 25 November 2016, following comments from a number of parties to the procedure, the Commission issued its revised final disclosure, containing additional data and information and setting 29 November 2016 as the time limit for submitting comments. The CCCMC requested an extension of that time limit. That request having been refused, the CCCMC submitted comments within the prescribed time limit.

   11 On 26 January 2017 the Commission adopted Implementing Regulation (EU) 2017/141 imposing definitive anti-dumping duties on imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in the People’s Republic of China and Taiwan (OJ 2017 L 22, p. 14, ‘the contested regulation’).

   12 Under Article 1 of the contested regulation, the rate of the anti-dumping duty established for the applicant is 48.9%.

2. Procedure and forms of order sought

   13 By application lodged at the Court Registry on 19 April 2017, the applicant brought the present action.

   14 In the light of the applications made by the applicant on 27 April and 13 October 2017, on the basis of Article 66 of the Rules of Procedure of the General Court, the names of certain producers that cooperated in the procedure before the Commission at issue and reference to an item of evidence submitted by the applicant have been omitted in the present judgment.

   15 By document lodged at the Court Registry on 21 June 2017, the Council of the European Union applied for leave to intervene in these proceedings in support of the form of order sought by the Commission, in relation to solely the applicant’s fifth plea in law.

   16 By decision of 27 July 2017, the Court granted the Council leave to intervene.

   17 On a proposal from the Judge-Rapporteur, the General Court (Fourth Chamber) decided, on 6 November 2018, to open the oral part of the procedure and, by way of measure of organisation of procedure under Article 89 of the Rules of Procedure, to invite the applicant to provide evidence that it was represented by the CCCMC before the Commission. The applicant complied with the Court’s request within the prescribed time limit.

   18 Responding to the arguments and evidence submitted by the applicant in response to the measure of organisation of procedure referred to in paragraph 17 above, the Commission submitted, at the hearing, evidence to show that the applicant was not represented by the CCCMC before the Commission.

   19 The applicant claims that the Court should:

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

   - order the Commission and the Council to pay the costs.

   20 The Commission contends that the Court should:

   - dismiss the action as inadmissible;

   - in the alternative, dismiss the action as unfounded;

   - order the applicant to pay the costs.

   21 The Council contends that the Court should:

   - dismiss the action as unfounded;

   - order the applicant to pay the costs.

3. Law

   22 In response to a question put by the Court at the hearing, the Commission declared that it was withdrawing its head of claim seeking to have the action declared inadmissible, a point which should be noted.

   23 The applicant puts forward five pleas in law in support of its action. The first plea alleges that the Commission, in determining interchangeability, made a manifest error of assessment, failed to assess evidence impartially, imposed an excessive burden of proof on the applicant, infringed the applicant’s right to be heard and failed to provide an adequate statement of reasons. The second plea alleges a manifest error of assessment and failure to provide an adequate statement of reasons in relation to the adjustment of the normal value. The third plea alleges a manifest error of assessment and abuse of discretion in determining the period considered. The fourth plea alleges breach of the principles of sound administration and transparency and infringement of rights of defence. The fifth plea alleges a manifest error of assessment in applying non-market economy treatment. In the interests of coherency, the Court will examine the fifth plea before the second plea. The issue of the lawfulness of the Commission’s use of the non-market economy country method of calculating normal value must be dealt with before the issue covered by the second plea, relating to the Commission’s refusal to use data from the Chinese market to calculate that normal value.

   A. Substance

   1. F irst plea, alleging a manifest error of assessment, failure to assess evidence impartially, imposition of an excessive...