Joined Cases C‑186/14 P and C‑193/14 P

ArcelorMittal Tubular Products Ostrava a.s. and Others

v

Hubei Xinyegang Steel Co. Ltd

and

Council of the European Union

v

Hubei Xinyegang Steel Co. Ltd

‛Appeal — Dumping — Regulation (EC) No 384/96 — Article 3(5), (7) and (9) — Article 6(1) Regulation (EC) No 926/2009 — Imports of certain seamless pipes and tubes of iron or steel originating in China — Definitive anti-dumping duty — Determination of a threat of injury — Taking into account of post-investigation period data’

Summary — Judgment of the Court (Second Chamber), 7 April 2016

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

2. Appeal — Grounds — Incorrect 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

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

3. Common commercial policy — Protection against dumping — Injur — Establishing a causal link — Obligations of the institutions — Taking into account of matters extraneous to the dumping

   (Council Regulation No 384/96, Art. 3(7))

4. Common commercial policy — Protection against dumping — Imposition of anti-dumping duties — Conditions — Injury — Threat of serious injury — Proof — Taking into account of post-investigation period data — Judicial review

   (Council Regulation No 384/96, Arts 3(9) and 6(1))

1.  In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. Judicial review of such an appraisal must thus be limited to verifying that the relevant procedural rules have been complied with, that the facts on which the choice is based have been accurately stated and that there has not been a manifest error of assessment of those facts or a misuse of powers.

   In that respect, the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of the institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions.

   (see paras 34, 35)

2.  See the text of the decision.

   (see paras 38-48)

3.  See the text of the decision.

   (see paras 54-56)

4.  Although it follows from Article 6(1) of anti-dumping Regulation No 384/96 that, as a rule, post-investigation period data are not to be taken into account for the purpose of the investigation of the dumping and the injury, nevertheless, the EU legislature did not intend to exclude entirely the consideration of such data.

   The EU institutions are therefore entitled, in certain circumstances, to take post-investigation period data into consideration. That is particularly so in investigations intended, not to find an injury, but to determine whether there is a threat of injury which, by its very nature, requires a prospective analysis. The existence of a threat of injury, like that of an injury, must be established as at the date of the adoption of the anti-dumping measure. In addition, Article 3(9) of the basic regulation requires that the finding of a threat of material injury is to be based on facts and not merely allegation, conjecture or remote possibility and that the change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In those circumstances, the post-investigation period data may be used to confirm or invalidate the forecasts in the provisional regulation and allows, in the former case, the imposition of a definitive anti-dumping measure.

   However, such use of those post-investigation period data cannot escape review by the EU judicature. Although that review must not encroach on the broad discretion of the institutions in the realm of trade defence measures, the General Court does not go beyond the limits of that review by examining whether the evidence on which those institutions based their findings support the conclusions that they reached.

   (see paras 70-74)