Judgments nº T-607/15 of Tribunal General de la Unión Europea, December 03, 2019

• Resolution Date: December 03, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-607/15

(Dumping - Imports of stainless steel cold-rolled flat products originating in China and Taiwan - Definitive anti-dumping duty - Implementing Regulation (EU) 2015/1429 - Article 2(3) and (5) of Regulation (EC) No 1225/2009 (now Article 2(3) and (5) of Regulation (EU) 2016/1036) - Article 2(1) and (2) of Regulation No 1225/2009 (now Article 2(1) and (2) of Regulation 2016/1036) - Calculation of the normal value - Calculation of the production cost - Sales of the like product intended for consumption on the domestic market of the exporting country)

In Case T-607/15,

Yieh United Steel Corp., established in Kaohsiung City (Taiwan), represented by D. Luff, lawyer,

applicant,

v

European Commission, represented by J.-F. Brakeland and A. Demeneix, acting as Agents,

defendant,

supported by

Eurofer, Association européenne de l’acier, ASBL, established in Luxembourg (Luxembourg), represented by J. Killick, G. Forwood and C. Van Haute, lawyers,

intervener,

APPLICATION pursuant to Article 263 TFEU seeking the annulment in part of Commission Implementing Regulation (EU) 2015/1429 of 26 August 2015 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10),

THE GENERAL COURT (Second Chamber),

composed of E. Buttigieg (Rapporteur), acting as President, B. Berke and M.J. Costeira, Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 18 June 2019,

gives the following

Judgment

Background to the dispute

1 The applicant, Yieh United Steel Corp., is a company established in Taiwan, which, inter alia, manufactures and distributes stainless steel cold-rolled flat products (‘the product concerned’).

2 The applicant manufactures the product concerned using hot-rolled coils as a raw material, which are either produced directly by the applicant or purchased from Lianzhong Stainless Steel Co. Ltd (‘LISCO’), a related company which produces hot-rolled coils and is established in China. The product concerned is sold by the applicant to EU customers and customers on its domestic market, which include unrelated downstream producers and distributors of the product concerned, and its related downstream producer, the company Yieh Mau.

3 Following a complaint lodged on 13 May 2014 by Eurofer, Association européenne de l’acier, ASBL (‘Eurofer’), the European Commission published, on 26 June 2014, a Notice of initiation of an anti-dumping proceeding concerning imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2014 C 196, p. 9), 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’).

4 The investigation of dumping and injury covered the period from 1 January to 31 December 2013 (‘the investigation period’). The examination of trends relevant for assessing injury covered the period from 1 January 2010 to 31 December 2013.

5 On 22 September 2014, the applicant and its related companies lodged their replies to the Commission’s anti-dumping questionnaire. From 17 to 20 November 2014, a verification visit was carried out at the applicant’s premises in Taiwan.

6 On 24 March 2015, the Commission adopted Implementing Regulation (EU) 2015/501 imposing a provisional anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 79, p. 23; ‘the provisional regulation’). The provisional regulation imposed a provisional anti-dumping duty of 10.9% on the applicant’s product concerned.

7 By letter of 25 March 2015, the Commission disclosed its provisional findings to the applicant, setting out the considerations and essential facts on the basis of which it had been decided to impose a provisional anti-dumping duty (‘the provisional disclosure document’).

8 In the provisional disclosure document, the Commission addressed, in particular, the issue of its refusal to deduct the value of recycled scrap from the cost of production of the product concerned and the issue of its refusal to take into consideration, for the purposes of determining the normal value, certain of the applicant’s sales in the exporting country.

9 On 20 April 2015, the applicant submitted its comments on the provisional disclosure document.

10 On 23 June 2015, the Commission sent its definitive disclosure document to the applicant. On 3 July 2015, the applicant submitted comments thereupon.

11 On 26 August 2015, the Commission adopted Implementing Regulation (EU) 2015/1429 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10; ‘the contested regulation’), which amended the provisional regulation and imposed an anti-dumping duty of 6.8% on the imports to the European Union of the product concerned manufactured, in particular, by the applicant.

Procedure and forms of order sought

12 By application lodged at the Court Registry on 27 October 2015, the applicant brought the present action.

13 By decision of 23 December 2015, the case was assigned to the First Chamber of the General Court.

14 By document lodged at the Court Registry on 18 March 2016, Eurofer applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

15 By document lodged at the Court Registry on 18 April 2016, the applicant applied for certain information in the application, the defence and the reply to be treated as confidential with regard to Eurofer if the latter were to be granted leave to intervene. It included a non-confidential version of those pleadings as an annex to its application for confidential treatment.

16 By document lodged at the Court Registry on 19 May 2016, the Commission applied for certain information in the rejoinder to be treated as confidential and attached a non-confidential version of the rejoinder to its application.

17 By order of 20 July 2016, the President of the First Chamber of the General Court granted Eurofer leave to intervene. Since, in accordance with Article 144(2) of the Rules of Procedure of the General Court, the applicant and the Commission had requested the confidential treatment of certain information contained in the pleadings referred to in paragraphs 15 and 16 above, that order provisionally restricted disclosure of those pleadings to the intervener to the aforementioned non-confidential versions submitted by the applicant and the Commission, pending the submission of any observations by the intervener on the application for confidential treatment.

18 By document lodged at the Court Registry on 22 August 2016, the applicant applied for certain information in the rejoinder to be treated as confidential with regard to the intervener, and attached a consolidated non-confidential version of the rejoinder to its application.

19 By document lodged at the Court Registry on 12 September 2016, the intervener challenged in part the application for confidential treatment of the application, the defence and the reply.

20 By decision of 6 October 2016, the case was assigned to the Second Chamber of the General Court pursuant to Article 27(5) of the Rules of Procedure.

21 By document lodged at the Court Registry on 9 January 2017, the applicant applied for certain information in its observations on the statement in intervention to be treated as confidential with regard to the intervener, and attached a non-confidential version of those observations to its application.

22 By document lodged at the Court Registry on 1 April 2017, the intervener challenged in part the application for confidential treatment of the applicant’s observations on the statement in intervention.

23 By order of 27 September 2017, Yieh United Steel v Commission (T-607/15, not published, EU:T:2017:698), the President of the Second Chamber of the General Court granted in part the applications for confidential treatment submitted by the applicant and the Commission.

24 By document lodged at the Court Registry on 20 March 2018, the applicant applied for certain information in its observations on the supplementary statement in intervention to be treated as confidential with regard to the intervener, and attached a non-confidential version of those observations to its application.

25 By document lodged at the Court Registry on 23 May 2018, the applicant requested an oral hearing.

26 The applicant claims that the General Court should:

- annul Articles 1 and 2 of the contested regulation in so far as they relate to the applicant;

- order the Commission to pay the costs.

27 The Commission and the intervener contend that the Court should:

- dismiss the action as unfounded;

- order the applicant to pay the costs.

Law

28 In support of its action, the applicant relies on two pleas in law alleging infringement of Article 2(3) and (5) of the basic regulation (now Article 2(3) and (5) of Regulation 2016/1036) and infringement of Article 2(1) and (2) of the basic regulation (now Article 2(1) and (2) of Regulation 2016/1036), respectively.

First plea in law: infringement of Article 2 (3) and (5) of the basic regulation and misuse of powers

29 The applicant claims that the Commission committed a manifest error in its appraisal of the facts by refusing to accept the deduction claimed for the value of recycled scrap from the cost of production of the product concerned. It is claimed that the Commission unduly refused to examine...