European Commission v Hubei Xinyegang Special Tube Co. Ltd.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:38
• Date: 20 January 2022
• Docket Number: C-891/19
• Celex Number: 62019CJ0891
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Third Chamber)

20 January 2022 ( *1 )

Table of contents

Legal context

WTO law

The basic regulation

Background to the dispute

The procedure before the General Court and the judgment under appeal

Forms of order sought by the parties

The appeal

Preliminary observations

The first to third grounds of appeal

Arguments of the parties

– The first ground of appeal, alleging that the General Court incorrectly held that the Commission was required to carry out an analysis of price undercutting by market segment

– The second ground of appeal, alleging that the General Court incorrectly held that the PCN method was not appropriate to take account of the market segmentation

– The third ground of appeal, alleging misinterpretation of the duty to state reasons and distortion of the evidence

Findings of the Court

– Preliminary observations

– The third ground of appeal

– The first and second grounds of appeal

The fourth ground of appeal

Arguments of the parties

Findings of the Court

– The General Court’s error of law in holding that the Commission was required to take into consideration, in the analysis of the effects of the dumped imports on the Union industry prices provided for in Article 3(2) and (3) of the basic regulation, all the product types at issue sold by that industry

– The General Court’s error of law in holding that the Commission was required to examine, in the context of the analysis of the effects of the dumped imports on the Union industry prices provided for in Article 3(2) and (3) of the basic regulation, the extent to which the prices of the 17 types of the product under consideration may have contributed to the fall in the prices of the sampled EU producers

The action before the General Court

Costs

(Appeal – Dumping – Implementing Regulation (EU) 2017/804 – Imports of certain seamless pipes and tubes originating in China – Definitive anti-dumping duty – Regulation (EU) 2016/1036 – Article 3(2), (3) and (6), and Article 17 – Determination of injury – Examination of the effect of dumped imports on the prices of like products sold on the EU market – Analysis of price undercutting – Application of the product control number (PCN) method – Obligation of the European Commission to take into account the different market segments relating to the product under consideration and all sales of like products by the sampled EU producers)

In Case C‑891/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 December 2019,

European Commission, represented initially by T. Maxian Rusche and N. Kuplewatzky, and subsequently by T. Maxian Rusche and A. Demeneix and, finally, by T. Maxian Rusche and by K. Blanck, acting as Agents,

applicant,

the other parties to the proceedings being:

Hubei Xinyegang Special Tube Co. Ltd, established in Huangshi (China), represented by E. Vermulst and J. Cornelis, advocaten,

applicant at first instance,

ArcelorMittal Tubular Products Roman SA, established in Roman (Romania),

Válcovny trub Chomutov a.s., established in Chomutov (Czech Republic),

Vallourec Deutschland GmbH, established in Düsseldorf (Germany),

represented by G. Berrisch, Rechtsanwalt,

interveners at first instance,

THE COURT (Third Chamber),

composed of A. Prechal (Rapporteur), President of the Second Chamber, acting as President of the Third Chamber, J. Passer, F. Biltgen, L.S. Rossi and N. Wahl, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 1 July 2021,

gives the following

Judgment

1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, the judgment under appeal, EU:T:2019:691), by which that court annulled Commission Implementing Regulation (EU) 2017/804 of 11 May 2017 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of iron (other than cast iron) or steel (other than stainless steel), of circular cross-section, of an external diameter exceeding 406.4 mm, originating in the People’s Republic of China (OJ 2017 L 121, p. 3, ‘the regulation at issue’), in so far as that regulation concerned products manufactured by Hubei Xinyegang Special Tube Co. Ltd (‘Hubei’).

Legal context

WTO law

2 By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986‑1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103, ‘the Anti‑Dumping Agreement’).

3 Article 3 of the Anti-Dumping Agreement, entitled ‘Determination of injury’, provides: ‘3.1 A determination of injury for purposes of Article VI [of the General Agreement on Tariffs and Trade (GATT) 1994] shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products. 3.2 … With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance. … 3.5 It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports. … …’

The basic regulation

4 Recital 3 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’), provides: ‘In order to ensure a proper and transparent application of the rules of the … Anti‑Dumping Agreement, the language of that agreement should be reflected in Union legislation to the best extent possible.’

5 Article 1 of the basic regulation, entitled ‘Principles’, provides: ‘1. An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury. 2. A product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country. … 4. For the purposes of this Regulation, “like product” means a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.’

6 Article 2 of that regulation, entitled ‘Determination of dumping’, is worded as follows: ‘… D. Dumping margin 11. Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Union, or by a comparison of individual normal values and individual export prices to the Union on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Union, if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. This paragraph shall not preclude the use of sampling in accordance with Article 17. …’

7 Article 3 of the basic regulation, entitled ‘Determination of injury’, provides: ‘1. Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article. 2. A determination of injury shall be based on positive evidence and shall involve an objective...