Case C‑79/20 P

Yieh United Steel Corp.

v

European Commission

 Judgment of the Court (Second Chamber), 28 April 2022

(Appeal – Dumping – Implementing Regulation (EU) 2015/1429 – Imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan – Definitive anti-dumping duty – Regulation (EC) No 1225/2009 – Article 2 – Calculation of the normal value – Calculation of the production cost – Production losses – Refusal to deduct the value of recycled scrap – Determination of the normal value on the basis of sales of the like product intended for domestic consumption – Exclusion from the basis of calculation used to determine the normal value of sales on the domestic market of the exporting country where those sales concern products intended for export)

1.        Appeal – Grounds – Mistaken assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted – Plea alleging distortion of the facts – Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion – Requirement that the distortion be obvious from the documents in the file

(Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paragraphs 52-54, 60, 84, 85)

2.        Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Choice of the calculation method – Discretion of the institutions – Judicial review – Scope – Limits

(Council Regulation No 1225/2009)

(see paragraphs 55-58, 61)

3.        Appeal – Grounds – Specific criticism of a point of the General Court’s reasoning necessary

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

(see paragraphs 76-78)

4.        EU law – Interpretation – Texts in several languages – Uniform interpretation – Differences between the various language versions – Account to be taken of the overall scheme and purpose of the legislation in question

(Council Regulation No 1225/2009, Art. 2(2))

(see paragraph 99)

5.        EU law – Interpretation – Methods – Interpretation in the light of the international agreements concluded by the Union – Interpretation of Regulation No 1225/2009 in the light of the 1994 GATT Anti-Dumping Agreement

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994 Anti-Dumping Agreement); Council Regulation No 1225/2009, Art. 2(2))

(see paragraphs 101, 102)

6.        Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Price charged in the ordinary course of trade – Price of like product intended for domestic consumption – Concept of intended for consumption – Like product sold on the domestic market of the exporting country, then destined for export – Not included – Condition – Existence of an objective link between the sale of the like product on the domestic market and the final destination of the product – Burden of proof on the Commission – Effective knowledge of the seller as to the final destination of the product in question – Irrelevant

(Council Regulation No 1225/2009, Arts 2(1) and (2))

(see paragraphs 103-144)

Résumé

Following a complaint lodged by Eurofer, Association européenne de l’acier, the European Commission adopted, following an investigation, Implementing Regulation 2015/1429 (1) (‘the contested regulation’) 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 (‘the product under consideration’).

Yieh United Steel Corp. (‘the appellant’), a company established in Taiwan, active in particular in the manufacture and distribution of the product under consideration, brought an action before the General Court for annulment of the contested regulation in so far as it concerned the appellant. It relies, inter alia, on an infringement of Article 2(2) of the basic regulation, (2) under which the ‘normal value’ of products subject to the anti-dumping duty is normally determined on the basis of sales of the like product intended for domestic consumption. In that regard, the appellant challenged, inter alia, the Commission’s refusal to take into consideration, for the purposes of determining the normal value, certain sales of the product concerned to its independent buyer in the exporting country (‘the sales in question’), on the sole ground that the product concerned had been exported by that customer after those sales, whereas the Commission had not shown that the appellant intended not to use that product for domestic consumption.

By judgment of 3 December 2019 (3) (‘the judgment under appeal’), the General Court dismissed the action brought by the appellant, holding, inter alia, that the Commission could refuse to take into account the sales in question for the purposes of determining the normal value, irrespective of whether the exporting producer had, at the time those sales were concluded, any knowledge of the export of the products concerned, if it had objective evidence that those sales were in fact export sales.

By judgment on appeal, the Court of Justice upholds the judgment of the General Court, while clarifying the expression ‘intended for consumption’ used in Article 2(2) of the basic regulation.

Findings of the Court

As a preliminary point, the Court notes that, in accordance with Article 2(1) and (2) of the basic regulation, domestic sales in the exporting country are not to be taken into account for the purposes of determining the normal value when the products concerned by those sales are destined, not for consumption on that market, but for a different purpose, such as export.

It then examines the question whether the expression ‘intended for consumption’, within the meaning of Article 2(2) of the basic regulation, implies a subjective element, in particular the existence of actual intention or knowledge on the part of the seller as to the final destination of the product concerned.

In that regard, the Court of Justice confirms the General Court’s approach, relying in particular on the wording, context and purpose of Article 2(2) of the basic regulation, according to which a purely subjective interpretation of the concept of ‘sales of the like product intended for domestic consumption’ cannot be accepted. However, the Court of Justice explains that a purely ‘objective’ interpretation of that concept, as adopted by the General Court, implies that the mere proof that a trader downstream in the distribution chain has exported the products concerned by the initial sale is sufficient for the Commission to be able to consider that those products were, at the time of their initial sale, ‘intended’ for export and must therefore be excluded from the basis of calculation used to determine the normal value.

According to the Court, such a purely objective interpretation is not compatible with the principles of foreseeability and legal certainty, since it would allow the Commission to impose anti-dumping duties irrespective of the pricing policy of the exporting producer and would oblige that producer to be held accountable for the marketing policies of its independent customers which that producer is not, in principle, able to control.

In that regard, in order, in particular, to ensure compliance with those principles, the Commission may exclude a domestic sale from the basis of calculation used to determine normal value only if it establishes the existence of an objective link between that sale and a destination of the product concerned other than domestic consumption. It follows that the Commission must demonstrate that it follows from the objective circumstances surrounding that sale, including, first and foremost, the price, that the products concerned by that sale have a destination other than consumption on the domestic market of the exporting country, such as export.

If the Commission establishes the existence of such circumstances relating to the initial sale, it may be considered that the exporting producer in question should reasonably have known, at the time of conclusion of the sale, that, in all likelihood, the final destination of the product concerned was export and not consumption on the domestic market of the exporting country.

In the present case, the Court observes that part of the appellant’s domestic sales was subject to an export rebate scheme, which is an objective circumstance surrounding those sales and relating to their price. Similarly, in view also of the fact that the appellant’s largest customer was primarily active in the export sector for the product concerned and that the appellant’s sales to that customer concerned, as a general rule, products intended for export and not for consumption on the domestic market, the appellant should reasonably have been aware, at the time the sales in question were concluded, of the final destination of the product concerned, namely, in all likelihood, export.

Consequently, the Court of Justice holds that the General Court did not err in law in holding that the Commission could lawfully and without committing any manifest error of assessment exclude the sales in question from the basis of calculation used to determine the normal value pursuant, inter alia, to Article 2(2) of the basic regulation.

1      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).

2      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).

3      Judgment of 3 December 2019, Yieh United Steel v Commission (T‑607/15, EU:T:2019:831).