Case T‑278/20

(Publication in extract form)

Zhejiang Hangtong Machinery Manufacture Co. Ltd
and
Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd

v

European Commission,

 Judgment of the General Court (First Chamber), 6 July 2022

(Dumping – Imports of steel road wheels originating in China – Imposition of a definitive anti-dumping duty and definitive collection of the provisional duty – Article 17(4), Articles 18 and 20 of Regulation (EU) 2016/1036 – Lack of cooperation – Insufficient information provided to the Commission)

1.      Common commercial policy – Protection against dumping – Discretion of the institutions – Judicial review – Limits

(see paragraphs 56, 57)

2.      Common commercial policy – Protection against dumping – Course of the investigation – Use of the information available where the undertaking refuses cooperation – Conditions – Unreliability of the information provided by the undertaking

(European Parliament and Council Regulation 2016/1036, Art. 18(1))

(see paragraphs 58-69)

3.      Common commercial policy – Protection against dumping – Course of the investigation – Use of the information available where the undertaking refuses cooperation – Conditions – Refusal of access to the necessary information

(European Parliament and Council Regulation 2016/1036, Art. 18(1))

(see paragraphs 75, 76)

4.      Common commercial policy – Protection against dumping – Course of the investigation – Account taken of information not ideal in all respects – Conditions

(European Parliament and Council Regulation 2016/1036, Art. 18(3))

(see paragraphs 77, 78)

5.      Common commercial policy – Protection against dumping – Course of the investigation – Use of the information available where the undertaking refuses cooperation – Conditions – Unreliability of the information provided by the undertaking – Scope – Interpretation in the light of the 1994 GATT Anti-Dumping Agreement

(Annex II to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994; European Parliament and Council Regulation 2016/1036, Art. 18)

(see paragraphs 91-94)

6.      Acts of the institutions – Statement of reasons – Obligation – Scope – Regulation imposing anti-dumping duties

(Art. 296 TFEU)

(see paragraphs 99-102)

7.      Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Brief statement of the pleas in law on which the application is based

(Rules of Procedure of the General Court, Art. 76(d))

(see paragraph 112)

8.      Common commercial policy – Protection against dumping – Anti-dumping proceeding – Right to sound administration – Scope

(Charter of Fundamental Rights of the European Union, Art. 41; European Parliament and Council Regulation 2016/1036, Art. 18)

(see paragraphs 126, 141)

9.      Common commercial policy – Protection against dumping – Course of the investigation – Use of the information available where the undertaking refuses cooperation – Application of a higher dumping rate to non-cooperating sampled companies than that applied to cooperating sampled companies – No breach of the principles of proportionality, non-discrimination and legitimate expectations

(European Parliament and Council Regulation 2016/1036, Art. 18(1))

(see paragraphs 127-140)

10.    Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence – Obligation of the institutions to provide information – Scope – Obligation for interested parties to make a written request to the Commission for the information sought

(European Parliament and Council Regulation 2016/1036, Arts 6(7) and 20(1) and (3))

(see paragraphs 157-167)

Résumé

Following a complaint lodged by the Association of European Wheel Manufacturers (EUWA), the European Commission adopted Implementing Regulation 2020/353 (1) imposing a definitive anti-dumping duty on imports of steel road wheels originating in the People’s Republic of China (‘the goods at issue’).

The applicants, Zhejiang Hangtong Machinery Manufacture Co. Ltd and Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd, are two companies established in China which produce and export the goods at issue; they were included in the sample of exporting producers used by the Commission during the anti-dumping investigation leading to the adoption of the contested regulation. In the course of that investigation, however, the Commission found that the applicants had submitted non-verifiable data on the export price. In accordance with Article 18 of the basic anti-dumping regulation, (2) which sets out the consequences of non-cooperation by the interested parties in the anti-dumping investigation, the Commission decided not to take those data into account and to calculate the dumping margin in respect of the applicants on the basis of the facts available.

The applicants brought an action before the Court for annulment of the contested regulation, in particular on the ground of infringement of Article 18 of the basic anti-dumping regulation. In dismissing that action, the General Court clarifies the application of that provision where a party subject to the anti-dumping investigation provides non-verifiable accounting data which do not enable reasonably correct findings to be made.

Findings of the Court

According to the Court, the objective of Article 18 of the basic anti-dumping regulation is to enable the Commission to continue with the investigation, even though the interested parties refuse to cooperate or do not cooperate in a satisfactory manner. Paragraph 1 of that provision allows the Commission to use the facts available in order to calculate the dumping margin if the requested information is not finally obtained.

In order to be regarded as cooperating under Article 18 of the basic anti-dumping regulation, the parties must provide the Commission with information enabling the Commission to reach the appropriate conclusions in the course of its investigation. In that regard, the degree of effort displayed by an interested party in submitting certain information does not necessarily reflect the substantive quality of the information submitted, and, in any case, is not the only determinant thereof.

That assessment is backed up by Article 18(3) of the basic anti-dumping regulation, according to which, where the information provided is not ‘ideal in all respects’ it should nevertheless not be disregarded, provided that it is not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability. Since those conditions are cumulative, failure to satisfy only one of them precludes the application of that provision, and therefore the taking into account of the information in question.

In the present case, as regards the determination of the export price of the goods at issue, the Court finds, first of all, that the data communicated to the Commission by the applicants were not reliable. It goes on to observe that, in so far as the inadequacies of those data made it excessively difficult for the Commission to reach a reasonably accurate finding, the Commission was not required to take them into consideration, under Article 18(3) of the basic anti-dumping regulation, in order to establish an export price with regard to the applicants.

In that context, the Court also points out that, irrespective of whether the applicants had acted to the best of their ability, the main difficulty encountered by the Commission during the investigation was due to the absence of a complete and verifiable set of data on the applicants’ export transactions, including, in particular, as regards the goods exported, the volumes and the values. In view of the impossibility of carrying out a correct and independent review of those data, the Commission did not err in deciding, in accordance with Article 18(1) of the basic anti-dumping regulation, to reject them in their entirety and to calculate the dumping margin in respect of the applicants on the basis of the facts available.

Lastly, the Court rejects the complaint that the Commission failed to calculate the normal value of the goods at issue even though the applicants had provided reliable data in that regard. Since no dumping margin could be established with regard to the applicants in the absence of an export price relating to them, any determination of the normal value of the goods at issue would have been superfluous. In that context, the Court rejects the applicants’ argument that it would have been possible to establish their normal value in order to compare it to the constructed export price for other producers, observing that the application of such a method, in the absence of any certainty as to the identity and quantity of the type of goods exported, would inevitably have had the effect of associating values which did not correspond and, consequently, were asymmetrical, as a result of which, ultimately, the findings relating to the dumping margin would not have been reasonably correct.

The Court concludes from this that, in view of the fact that it is impossible to determine the export price on the basis of the data provided by the applicants and the lack of any purpose in establishing a normal value, the Commission did not infringe Article 18 of the basic anti-dumping regulation by using the facts available in order to determine the dumping margin with regard to the applicants.

1      Commission Implementing Regulation (EU) 2020/353 of 3 March 2020 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of steel road wheels originating in the People’s Republic of China (OJ 2020 L 65, p. 9; ‘the contested regulation’).

2      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 anti-dumping regulation’).