Judgments nº T-383/17 of Tribunal General de la Unión Europea, April 02, 2020

• Resolution Date: April 02, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-383/17

(Dumping - Imports of certain lightweight thermal paper originating in South Korea - Definitive anti-dumping duty - Dumping margin calculation - Calculation of the injury margin - Determination of injury)

In Case T-383/17,

Hansol Paper Co. Ltd, established in Seoul (South Korea), represented by J.-F. Bellis and B. Servais, lawyers,

applicant,

v

European Commission, represented by A. Demeneix, M. França and N. Kuplewatzky, acting as Agents,

defendant,

supported by

European Thermal Paper Association (ETPA), established in Zürich (Switzerland), represented by H. Hobbelen, J. Rivas Andrés and B. Vleeshouwers, lawyers,

intervener,

ACTION pursuant to Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2017/763 of 2 May 2017 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2017 L 114, p. 3), in so far as it concerns the applicant,

THE GENERAL COURT (Seventh Chamber),

composed of V. Tomljenović, President, A. Marcoulli (Rapporteur) and O. Spineanu-Matei, Judges,

Registrar: E. Artemiou, administrator,

having regard to the written part of the procedure and further to the hearing on 5 September 2019,

gives the following

Judgment

Background to the dispute

1 On 18 February 2016, following a complaint, the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain lightweight thermal paper originating in South Korea (OJ 2016 C 62, p. 7).

2 The product to be investigated corresponded to lightweight thermal paper weighing 65 gr/m² or less, presented in rolls of a width of 20 cm or more, a weight (including the paper) of 50 kg or more and a diameter (including the paper) of 40 cm or more (‘jumbo rolls’), with or without a base coat on one or both sides, coated with a thermosensitive substance (that is, a mixture of dye and a developer that react and form an image when heat is applied) on one or both sides and with or without a top coat, originating in South Korea, falling within CN codes ex 4809 90 00, ex 4811 90 00, ex 4816 90 00 and ex 4823 90 85 (‘the product concerned’).

3 The investigation of dumping and injury covered the period from 1 January 2015 to 31 December 2015 (‘the investigation period’). The examination of trends relevant for the determination of injury covered the period from 1 January 2012 to the end of the investigation period.

4 The applicant, Hansol Paper Co. Ltd, established in South Korea, is active in the production and export of the product concerned, in particular towards the European Union. Its sales of that product were made, in the Union, during the investigation period, to independent customers and to a related trader, Hansol Europe BV (‘Hansol Europe’), and to four related converters, namely Schades Ltd, Schades Nordic A/S, Heipa technische Papiere GmbH (‘Heipa’) and R+S Group GmbH (‘R+S’). The activity of the related converters was in particular the conversion of that product into new products, called ‘small rolls’, sold in the European Union to independent or related customers.

5 Another Korean exporting producer, Hansol Artone Co. Ltd (‘Artone’), which was related to the applicant, cooperated with the anti-dumping investigation. It merged with the applicant on 3 March 2017.

6 On 18 February 2016, the applicant received the anti-dumping questionnaire intended for exporting producers of the product concerned.

7 In the light of the absence or limited number of sales of the product concerned by some of the companies related to it to independent customers in the Union, on 19 February 2016, the applicant requested that Schades Nordic, Heipa and R+S be exempted from the obligation to complete the questionnaire for the companies related to the exporting producer, included in Annex I to the anti-dumping questionnaire.

8 On 23 February 2016, the Commission accepted that request, while reserving the right to make other requests for information.

9 On 7 March 2016, after examining certain information provided by the applicant, the Commission decided that Schades Nordic, Heipa and R+S should reply to sections F and G, relating to production costs and profitability, and complete Annex I to the anti-dumping questionnaire.

10 On 8 March 2016, the applicant requested the intervention of the Hearing Officer in relation to the Commission’s requests addressed to Schades Nordic, Heipa and to R+S. In particular, it pointed out the heavy workload required in order to supply data relating to sales and costs in relation to the small rolls, which are not concerned by the procedure, and the irrelevance of that request in so far as it was not possible to determine whether the small rolls had been manufactured from its jumbo rolls or from other sources.

11 On 10 March 2016, a hearing was held with the Commission, chaired by the Hearing Officer.

12 On 16 and 17 March 2016, the Commission visited Schades’ premises.

13 On 21 March 2016, the Commission informed the applicant that the requests for information sent on 7 March 2016 were henceforth limited to Schades.

14 On 15 April 2016, the Commission acknowledged receipt of the responses of the applicant and Artone to the anti-dumping questionnaires and the responses of Hansol Europe and of Schades to Annex I to the anti-dumping questionnaire.

15 Between 15 June and 26 August 2016, the Commission carried out visits and checks at the premises of the applicant, Artone, Hansol Europe and Schades.

16 On 16 November 2016, the Commission adopted Implementing Regulation (EU) 2016/2005 imposing a provisional anti-dumping duty on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2016 L 310, p. 1).

17 On 17 November 2016, an information document containing the Commission’s preliminary findings was sent to the applicant. The latter submitted its observations on those preliminary findings on 8 December 2016.

18 On 13 December 2016, at the request of the applicant, a hearing was held with the Commission, chaired by the Hearing Officer.

19 On 17 February 2017, a final disclosure document reproducing the Commission’s final conclusions was sent to the applicant. The latter presented its observations on that document on 27 February 2017.

20 On 2 and 22 March 2017, at the request of the applicant, hearings were held with the Commission, chaired by the Hearing Officer.

21 On 20 and 23 March 2017, the Commission submitted, respectively, additional final disclosure and revised final disclosure, which were subject to observations on the part of the applicant.

22 On 2 May 2017, the Commission adopted Implementing Regulation (EU) 2017/763 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2017 L 114, p. 3; ‘the contested implementing regulation’).

23 The contested implementing regulation is based inter alia on Article 9(4) of 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’).

24 Article 1 of the contested implementing regulation provides for the imposition of a definitive anti-dumping duty on imports of the product concerned, in the form of a fixed amount of EUR 104.46 per tonne, net.

Procedure and forms of order sought

25 By application lodged at the Registry of the General Court on 20 June 2017, the applicant brought the present action.

26 On 22 September 2017, the Commission lodged its defence.

27 By order of 27 November 2017, the President of the Seventh Chamber of the Court granted the European Thermal Paper Association (ETPA) leave to intervene in support of the form of order sought by the Commission in this case.

28 By order of 16 October 2018, Hansol Paper v Commission (T-383/17, not published, EU:T:2018:742), the President of the Seventh Chamber of the Court partially granted applications for confidential treatment made by the applicant in respect of certain passages of the pleadings of the main parties.

29 By letters of 14 November 2018, in the context of measures of organisation of procedure pursuant to Article 89(3) of the Rules of Procedure, the Court requested the parties to answer a number of questions. The parties complied with that request within the required deadline, namely 23 November 2018 for the applicant’s response and 6 December 2018 for the responses of the Commission and the intervener.

30 By order of 28 February 2019, Hansol Paper v Commission (T-383/17, not published, EU:T:2019:146), the President of the Seventh Chamber of the Court partially granted applications for confidential treatment made by the applicant in respect of certain passages of the applicant’s response of 23 November 2018 and of the Commission’s response of 6 December 2018 to the measures of organisation of procedure.

31 As one member of the Seventh Chamber was prevented from sitting, on 20 May 2019 the President of the Court, acting pursuant to Article 17(2) of the Rules of Procedure, designated another Judge to complete the Chamber.

32 The parties presented oral argument and answered the questions put by the Court at the hearing on 5 September 2019.

33 The applicant claims that the Court should:

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

- order the Commission to pay the costs;

- order the intervening party to bear its own costs.

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

- dismiss the action as inadmissible;

- in the alternative, dismiss the action as unfounded;

- order the applicant to pay the costs.

Law

Admissibility of the action

35 The Commission contends that the application does not satisfy the formal requirements of Article 76(d) of the Rules of Procedure. Under that...