Bricmate AB v Tullverket.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2015:342
• Date: 21 May 2015
• Celex Number: 62013CC0569
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-569/13

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 21 May 2015 ( 1 )

Case C‑569/13

Bricmate AB

v

Tullverket

(Request for a preliminary ruling from the Förvaltningsrätten i Malmö (Sweden))

‛(Validity of Council Implementing Regulation No 917/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China’

1. In 2011, the Council of the European Union imposed an anti-dumping duty on imports of ceramic tiles originating in the People’s Republic of China (‘China’). A Swedish importer of such tiles has challenged the levying of that duty on its imports. It alleges that the regulation imposing the duty is vitiated by errors of fact and assessment and by failures on the part of the European Commission to conduct the investigation procedure correctly, in particular to take account of certain specific submissions made by the importer. The dispute is now before the Förvaltningsrätten i Malmö (Administrative Court, Malmö) which seeks a preliminary ruling on the validity of the regulation in issue.

2. Other issues concerning a different challenge to the same regulation have been referred to the Court in Case C‑687/13 Fliesen-Zentrum Deutschland, in which I also deliver my Opinion today.

Legislative and procedural background

3. The rules governing the imposition of anti-dumping duties are contained in Regulation No 1225/2009 (‘the basic regulation’). ( 2 ) The anti-dumping duty in issue in the main proceedings was first imposed by Regulation No 258/2011 (‘the provisional regulation’) ( 3 ) and then confirmed, with adjustments, by Regulation No 917/2011 (‘the definitive regulation’ or ‘the contested regulation’). ( 4 )

The basic regulation

4. Article 1(1) of the basic regulation sets out the principle that an anti-dumping duty may be applied to any dumped product whose release for free circulation in the European Union causes injury. Article 1(2) defines a dumped product as one whose export price to the Union is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.

5. Article 2 lays down the principles and rules governing determination of dumping. Essentially, for a given product exported from a third country, a normal value on the domestic market and an export price to the Union are established, and a fair comparison is made between the two, taking account of various factors which might influence differences between them. If a comparison of weighted averages shows that the normal value exceeds the export price, the amount by which it does so is the dumping margin.

6. Article 3 (‘Determination of injury’) provides, in particular: ‘... 2. A determination of injury shall be based on positive evidence and shall involve an objective examination of both: (a) the volume of the dumped imports and the effect of the dumped imports on prices in the [Union] market for like products; and (b) the consequent impact of those imports on the [Union] industry. 3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the [Union]. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the [Union] industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of these factors can necessarily give decisive guidance. … 5. The examination of the impact of the dumped imports on the [Union] industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity; factors affecting [Union] prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance. 6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the [Union] industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material. …’

7. Article 17 of the basic regulation concerns sampling. In particular, where the number of complainants, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of the selection (Article 17(1)). Preference is to be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided such parties make themselves known and make sufficient information available (Article 17(2)).

8. Article 20 is entitled ‘Disclosure’. Article 20(1) provides: ‘The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.’

The anti-dumping proceeding and the provisional regulation

9. The Commission gave notice of the initiation of an anti-dumping proceeding concerning imports of ceramic tiles originating in China on 19 June 2010. ( 5 ) The investigation of dumping and injury covered the period from 1 April 2009 to 31 March 2010 (the ‘investigation period’ or ‘IP’). Examination of trends for the purposes of assessing injury and causation covered the period from 1 January 2007 to 31 March 2010.

10. Bricmate AB (‘Bricmate’) responded to the request in the notice for interested parties to make themselves known and was selected by the Commission to participate in the investigation, in a sample of seven unrelated importers (independent importers having no link to any particular exporter). Bricmate responded to the questionnaire sent to it on 10 September 2010. It stated, inter alia, that the tiles which it imported from China were of a particularly high quality, even though they bore the same product control numbers (‘PCNs’) as inferior tiles, with which they could not be compared, and that certain of them came in dimensions, or were produced using cutting techniques, which were not available from Union producers.

11. On 16 March 2011, the Commission adopted the provisional regulation, Article 1(1) of which imposed a provisional anti-dumping duty on imports of ‘glazed and unglazed ceramic flags and paving, hearth or wall tiles; glazed and unglazed ceramic mosaic cubes and the like, whether or not on a backing, currently falling within CN codes 6907 10 00, 6907 90 20, 6907 90 80, ( 6 ) 6908 10 00, 6908 90 11, 6908 90 20, 6908 90 31, 6908 90 51, 6908 90 91, 6908 90 93 and 6908 90 99, and originating in [China]’.

12. Under Article 1(2), the rate of the provisional anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the products in question manufactured by certain listed companies varied between 26.2% and 36.6%, with a rate of 73.0% being applied to those produced by all other companies.

13. Recitals 27 to 32 in the provisional regulation, under the heading ‘Like product’, read as follows: ‘(27) One party claimed that the product imported from China and that produced by the Union industry were not comparable. (28) It is recalled that the Commission based the price comparisons on product types distinguished on the basis of product control numbers (“PCN”) based on eight characteristics. (29) The party in question presented its arguments during a hearing before the Hearing Officer. According to the arguments the lack of comparability was due to different technology, material, polishing and design used for production of Union and Chinese tiles. Technologically advanced lines produced high quality tiles with screen printing and several colours. The company explained that there were different printing technologies for screen printing, roto-printing and inkjet printing. (30) Despite requests for detailed submission elaborating on all these aspects of product comparability, the party failed to substantiate its claims. Also the argument on improving the comparability has not been supported by any evidence. Further, the party itself acknowledged that the product types that would be covered by adding the four suggested criteria, would represent only 0.5% of the tiles’ market. As...