Opinion of Advocate General Tanchev delivered on 6 October 2021.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2021:827
Celex Number62019CC0666

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 6 October 2021(1)

Case C666/19 P

Changmao Biochemical Engineering Co. Ltd

v

European Commission

(Appeal – Dumping – Imports of aspartame originating in China – Applicability ratione temporis of Regulation (EU) 2016/1036Article 2(7)(a) of Regulation (EC) No 1225/2009 – Determination of the normal value on the basis of the price in the European Union for the like product – Article 2(10) of Regulation (EC) No 1225/2009 – Adjustments for the purposes of determining the dumping margin – Adjustments for the purposes of determining the existence of injury)






Table of contents


I. Legal framework

II. Background to the proceedings

III. Proceedings before the General Court and judgment under appeal

IV. Proceedings before the Court and forms of order sought

V. Analysis

A. Is Regulation 2016/1036 applicable ratione temporis to the present case?

1. Arguments of the parties

2. Assessment

B. The second ground of appeal

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) The third part of the second ground of appeal

(2) The first part of the second ground of appeal

C. The third ground of appeal

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) The third part of the third ground of appeal

(2) The first part of the third ground of appeal

(3) The fourth part of the third ground of appeal

(4) The second part of the third ground of appeal

D. The fourth ground of appeal

1. Arguments of the parties

2. Assessment

VI. Costs

VII. Conclusion


1. By this appeal, Changmao Biochemical Engineering Co. Ltd requests the Court of Justice to set aside the judgment of 28 June 2019, Changmao Biochemical Engineering v Commission (‘the judgment under appeal’), (2) by which the General Court dismissed its action for the annulment of Commission Implementing Regulation (EU) 2016/1247 (‘the regulation at issue’) (3) imposing an anti-dumping duty of 55.4% on the imports of its aspartame production.

2. This appeal presents the Court with an opportunity to rule on the extent to which the Commission may, in the case of imports from non-market economy countries, determine the normal value not by using the main method laid down in Article 2(7)(a) of Council Regulation (EC) No 1225/2009, (4) that is, on the basis of the price or constructed value in a market economy third country (an ‘analogue country’), but by using an alternative method, that is, on the basis of the price actually paid or payable in the European Union for the like product. This case also raises the question of the Commission’s power, or duty, to make adjustments for the purposes of determining not only the dumping margin, but also the existence of injury.

I. Legal framework

3. Article 2(7)(a) of Regulation No 1225/2009, which corresponds to Article 2(7)(a) of Regulation (EU) 2016/1036 of the European Parliament and of the Council, (5) states:

‘In the case of imports from non-market economy countries, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the [EU], or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the [EU] for the like product, duly adjusted if necessary to include a reasonable profit margin.

An appropriate market economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time-limits; where appropriate, a market economy third country which is subject to the same investigation shall be used.

…’

4. Article 2(10) of Regulation No 1225/2009, which corresponds to Article 2(10) of Regulation 2016/1036, provides:

‘A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. …’

5. According to paragraphs 2 and 3 of Article 3 of Regulation No 1225/2009, entitled ‘Determination of injury’, which correspond to paragraphs 2 and 3 of Article 3 of Regulation 2016/1036:

‘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 [EU] market for like products; and

(b) the consequent impact of those imports on the [EU] 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 [EU]. 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 [EU] 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.’

II. Background to the proceedings

6. On 30 May 2015, following a complaint lodged on 16 April 2015 by the sole producer of aspartame in the EU, namely Ajinomoto Sweeteners Europe SAS, now Hyet Sweet SAS, the Commission initiated an anti-dumping proceeding concerning imports of aspartame originating in China into the EU.

7. Aspartame is a sweetening ingredient produced in the form of white, odourless crystals of various sizes with a taste similar to sugar but with an increased sweetness potency and considerably smaller caloric value. It is mainly used as a sugar substitute in the soft drink, food and dairy industries. (6)

8. On 25 February 2016, the Commission adopted the provisional regulation.

9. On 28 July 2016, the Commission adopted the regulation at issue, whereby it imposed definitive anti-dumping duties on the imports of aspartame produced by several Chinese companies, including, as mentioned in point 1 above, a duty of 55.4% on the imports of aspartame produced by Changmao Biochemical Engineering.

III. Proceedings before the General Court and judgment under appeal

10. On 21 October 2016, Changmao Biochemical Engineering brought an action for the annulment of the regulation at issue.

11. By the judgment under appeal, the General Court dismissed that action.

12. Given that I have been requested by the Court of Justice to limit myself in this Opinion to examining the second, third and fourth grounds of appeal, which challenge the General Court’s assessment of the second and third pleas in law raised before it, I will summarise below the General Court’s assessment of those two pleas only.

13. In the first place, the General Court dismissed the second plea in law, alleging that the Commission infringed Article 2(7)(a) of Regulation 2016/1036 in calculating the normal value on the basis of the prices of the sole EU producer for the like product on the Union market, rather than on the basis of the export prices of a producer of the contemplated analogue country, namely Japan. According to the General Court, it is apparent from the first indent of that provision that, in the case of imports from non-market economy countries, the Commission may choose not to apply the general rule set out in that provision (according to which the normal value must be determined on the basis of the price in an analogue country, or on the basis of the price from that country to other countries), using some ‘other reasonable basis’, only where it is impossible to apply that general rule. Such is the case where the information available at the time of choosing is not reliable and is likely to lead to an inappropriate and unreasonable choice of analogue country. In the present case, the data provided by the Japanese producer were not reliable, and interested parties had raised concerns as to the choice of Japan as an analogue country. Moreover, given the rarity of aspartame producers in similar countries and the difficulty of finding a producer willing to cooperate, the Commission did not fail to take due care in its search for analogue countries.

14. In the second place, the General Court dismissed the third plea in law, alleging that the Commission infringed Article 2(10), Article 3(2)(a) and (3) and Article 9(4) of Regulation 2016/1036 and the principle of sound administration by refusing to make the adjustments necessary to ensure a fair price comparison. First, according to the General Court, the Commission did not infringe Article 2(10) of that regulation in refusing to make adjustments for the purposes of determining the dumping margin. This was because Changmao Biochemical Engineering failed to show that the alleged differences in the costs of production between the EU producer and itself affected prices and price comparability, thereby warranting adjustments. Moreover, none of the provisions relied upon by Changmao Biochemical Engineering required the Commission to make adjustments for the purposes of determining the injury margin. Secondly, the General Court rejected Changmao Biochemical Engineering’s claim that the Commission had imposed an unreasonable burden of proof on it in requiring it to show that the alleged differences in production costs affected prices and price comparability when it did not have access to EU industry data. In the view of the...

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