Case T‑254/18

China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others

v

European Commission

Judgment of the General Court (Fourth Chamber, Extended Composition), of 19 May 2021

(Dumping – Imports of certain cast iron articles originating in China – Definitive anti-dumping duty – Action for annulment – Admissibility – Association – Standing to bring proceedings – Interest in bringing proceedings – Injury determination – Calculation of the import volume – Macroeconomic and microeconomic indicators – Sampling – Calculation of the EU industry’s cost of production – Prices charged intra-group – Causal link – Attribution and non-attribution analysis – No assessment of injury by segment – Assessment of the significance of undercutting – Confidential treatment of information – Rights of the defence – PCN-by-PCN methodology – Product comparability – Calculation of the normal value – Analogue country – Adjustment for VAT – Determination of the selling, general and administrative costs and profit)

1. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action brought by a trade association set up to protect and represent its members – Action brought on an individual basis – Action seeking to safeguard the procedural rights of the association – Admissibility – Alleged erroneous acknowledgement that the association was an interested party with procedural rights during the administrative procedure and in the contested regulation – Error relied upon in support of the action being inadmissible, without the contested regulation being amended or withdrawn – No impact

   (Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2016/1036, Arts 6(5) and (7), and 20(1) and (2), Commission Regulation 2018/140)

   (see paragraphs 47-76, 432)

2. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action brought by a trade association set up to protect and represent its members – Admissibility – Conditions – Need for representation covering the entire procedure, including the administrative phase – None – Need for the association to be representative for the purposes of the legal tradition common to the Member States – None – Need for a specific mandate established by the members – None

   (Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2016/1036, Art. 2; Commission Regulation 2018/140)

   (see paragraphs 83-92, 94-104, 126-128)

3. Action for annulment – Judgment annulling a measure – Scope – Annulment of an anti-dumping regulation in so far as it imposes an anti-dumpimg duty on certain undertakings’ products – Effect of the annulment on the validity of the anti-dumping duty applicable to other undertakings’ products – None

   (Art. 263 TFEU; European Parliament and Council Regulation 2016/1036; Commission Regulation 2018/140)

   (see paragraphs 109-112)

4. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulation imposing anti-dumping duties – Producers and exporters identified in the regulation or concerned by the preliminary investigations – Admissibility

   (Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2016/1036; Commission Regulation 2018/140, Art. 1(2))

   (see paragraphs 118-121, 132)

5. Common commercial policy – Protection against dumping – Injury – Factors to be taken into consideration – Volume of dumped imports – Calculation of import volumes – Calculation method – Discretion of the Commission – Dispute as to the reliability of the data used – Burden of proof

   (European Parliament and Council Regulation 2016/1036, Arts. 1(1) and 3(2)(a); Commission Regulation 2018/140)

   (see paragraphs 169-172, 175-196)

6. Common commercial policy – Protection against dumping – Investigation – Obligation of the institutions to exercise due care – Scope – Obligation of the Commission on its own initiative to consider all the information available – Limits

   (European Parliament and Council Regulation 2016/1036, Art. 6(3) and (4); Commission Regulation 2018/140)

   (see paragraphs 198-209)

7. Common commercial policy – Protection against dumping – Course of the investigation – Obligation of the Commission to check the accuracy of information provided by the interested parties – Limits – Voluntary cooperation of the interested parties

   (European Parliament and Council Regulation 2016/1036, Arts 6(8), and 16(1); Commission Regulation 2018/140)

   (see paragraphs 220-227, 246-252)

8. Common commercial policy – Protection against dumping – Injury – Verification by the Commission – Course of the investigation – Sampling – Sample composition – Consultation with interested parties – Scope

   (European Parliament and Council Regulation 2016/1036, Art. 17(2); Commission Regulation 2018/140)

   (see paragraphs 278-285)

9. Common commercial policy – Protection against dumping – Injury – Verification by the Commission – Course of the investigation – Sampling – Sample composition – Discretion of the Commission – Judicial review – Limits – Manifest error of assessment – Burden of proof

   (European Parliament and Council Regulation 2016/1036, Arts 4(1) and 17(1) and (2); Commission Regulation 2018/140)

   (see paragraphs 289-299)

10. Common commercial policy – Protection against dumping – Injury – Establishing a causal link – Obligations of the institutions – Factors to be taken into consideration – Discretion of the Commission – Judicial review – Manifest error of assessment – Burden of proof

    (European Parliament and Council Regulation 2016/1036, Art. 3(2), (3), (6) and (7); Commission Regulation 2018/140)

    (see paragraphs 337-341, 347-351, 362-366)

11. Common commercial policy – Protection against dumping – Injury – Assessment of injury indicators through an assessment by segment of the market for the product in question – Conditions – Burden of proof

    (European Parliament and Council Regulation 2016/1036, Art. 3(6) and (7); Commission Regulation 2018/140)

    (see paragraphs 377-397)

12. Common commercial policy – Protection against dumping – Injury – Calculation of the undercutting margin – Sampling – Sample composition – Discretion of the Commission – Obligation of the Commission to establish undercutting for each product type sold by the sampled EU producers – None – Condition – Interchangeable products

    (European Parliament and Council Regulation 2016/1036, Arts 3 and 17(1) and (2); Commission Regulation 2018/140)

    (see paragraphs 407-417, 420-425)

13. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence – Obligation of the institutions to provide information– Scope – Failure to make particular information available – Obligation of the interested parties to put the institutions in a position to assess the difficulties resulting from that failure

    (European Parliament and Council Regulation 2016/1036, Art. 5(10); Commission Regulation 2018/140)

    (see paragraphs 435-438, 567)

14. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence – Infringement of procedural rights granted to an association during the investigation – Ability of a member of an association to raise those rights – Conditions – Demonstration by the association of its intention to act as the representative of certain of its members during the investigation

    (European Parliament and Council Regulation 2016/1036)

    (see paragraphs 440-447)

15. Common commercial policy – Protection against dumping – Investigation – Observance of the rights of the defence – Obligation of the institutions to keep the undertakings concerned informed, to respect the confidentiality of information, and to reconcile those obligations – Infringement of the obligation to provide information – Conditions – Refusal to provide information likely to be relevant for the defence of the undertaking

    (European Parliament and Council Regulation 2016/1036, Arts 6(7), 19(1) to (5), and 20; Commission Regulation 2018/140)

    (see paragraphs 451-469, 474-503, 507-513, 523-533, 536-541)

16. Common commercial policy – Protection against dumping – Dumping margin – Comparison between the normal value and the export price – Need to group goods which have considerable differences with regard to their characteristics and their prices under categories which are more or less homogeneous – Codification leading to manifestly inadequate product categories – Burden of proof

    (European Parliament and Council Regulation 2016/1036, Art. 2(10); Commission Regulation 2018/140)

    (see paragraphs 550-554)

17. Common commercial policy – Protection against dumping – Dumping margin – Comparison between the normal value and the export price – Adjustments – Burden of proof

    (European Parliament and Council Regulation 2016/1036, Art. 2(10)

    (see paragraphs 577-583)

18. Common commercial policy – Protection against dumping – Dumping margin – Comparison between the normal value and the export price – Discretion of the institutions – Comparison at the same level of trade – Taking account of the export price and the normal value on a ‘VAT-inclusive’ basis – Symmetry – Fairness of the calculation method

    (European Parliament and Council Regulation 2016/1036, Art. 2(10)(b) and (k); Commission Regulation 2018/140)

    (see paragraphs 591-600)

19. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries – Reference to price of a market economy third country – Criteria to be used in constructing the normal value – Adjustments

    (European Parliament and Council Regulation 2016/1036, Art. 2(7)(a), and (10); Commission Regulation 2018/140)

    (see paragraphs 603-609)

20. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries – Application of the rules concerning market economy countries – Limits

    (European Parliament and Council Regulation 2016/1036, Art. 2(1) to (7)(a); Commission Regulation 2018/140)

    (see paragraphs 618-621)

21. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries – Reference to price of a market economy third country – Criteria to be used in constructing the normal value – Ability to use the selling, administrative and other general costs – Conditions

    (European Parliament and Council Regulation 2016/1036, Art. 2(1) to (7)(a))

    (see paragraphs 622-625)

Résumé

Following a complaint lodged with the European Commission by certain European Union producers, the Commission adopted, following an investigation opened on 10 December 2016, Implementing Regulation 2017/1480, ( 1 ) imposing a provisional anti-dumping duty on imports of certain cast iron articles originating in the People’s Republic of China (‘the product concerned’). By contrast, the Commission provisionally found no dumping in respect of imports of identical products originating in the Republic of India. Following the anti-dumping proceeding, the Commission adopted Implementing Regulation 2018/140 ( 2 ) imposing a definitive anti-dumping duty on the products concerned originating in the People’s Republic of China and terminating the investigation on imports of the same products originating in India.

The China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’), an association governed by Chinese law, whose members include Chinese exporting producers of the product concerned and other Chinese exporting producers, brought an action seeking the annulment of Implementing Regulation 2018/140.

In its dismissal of this action, the General Court sets out the admissibility conditions for an action for annulment brought by an association on behalf of its members. It clarifies, additionally, the procedures for an association to gain access to certain information gathered by the Commission during the anti-dumping investigation and provides further details on the assessment of the various indicators of injury caused to the EU industry as well as the Commission’s ability to adjust the normal value of the price, as determined by applying the analogue country method.

Findings of the Court

As regards the admissibility of the action for annulment brought by the CCCME, the General Court observes, first of all, that an association’s ability to act on behalf of its members is based on the significant advantage afforded by that method of proceeding, by obviating the institution of numerous separate actions against the same acts by the members of the association representing their interests. In order for that advantage to materialise, it is necessary and sufficient, first, that the association in question acts on behalf of its members and, second, that the powers conferred on it in its articles of association permit actions to be initiated. Since those two requirements are fulfilled in the present case, the General Court rejects the argument put forward by the Commission that a third admissibility condition, linked to the representativeness of the association in question, for the purposes of the legal tradition common to the Member States, ought to have been acknowledged by the Court of Justice in its judgment in Council v Growth Energy and Renewable Fuels Association. ( 3 ) Furthermore, the CCCME need not have a mandate or specific authority established by the members whose interests it defends in order to be recognised as having standing to bring proceedings before the EU Courts.

As regards the first admissibility condition, which provides that the CCCME must act on behalf of its members, the Court also rejects the Commission’s argument that only a representation covering the entire procedure, including the administrative stage, permits an association to bring an action on behalf of its members. In the light of the arguments which could be relied upon by the CCCME in support of the action for annulment, the Court points out, in addition, that an association whose tasks under its statutes include defending the interests of its members can put forward any plea capable of calling into question the lawfulness of trade defence measures adopted in their regard.

In terms of substance, the Court rejects, in particular, the plea alleging that the Commission refused to disclose to the CCCME information relevant to the determination of dumping and of injury, such as the details of the calculation of the normal value, dumping margins, the effects of Chinese imports on prices, injury and the injury elimination level. While recalling that the requirement to respect confidential information cannot deprive the rights of defence of their substance, the Court notes that the basic regulation ( 4 ) provides for a system of guarantees pursuing two objectives, namely, first, to allow interested parties effectively to defend their interests and, second, to preserve the confidentiality of the information gathered during the investigation. In order to place the two objectives in relation to one another, the basic regulation requires, on the one hand, that a non-confidential summary which is in sufficient detail to permit interested parties to gain a reasonable understanding of the substance of that information be communicated by the party requesting confidentiality of the information communicated, ( 5 ) and on the other hand, that general information, in particular the reasons on which decisions taken under the basic regulation are based be disclosed by the institutions. ( 6 ) In the present case, since all the calculations requested by the CCCME are confidential and merit protection, the Court observes that, in the light of the information that was communicated to it, that association was placed in a position to provide information appropriate to its defence.

As regards the calculation of the import volume, the Court holds, in addition, that the Commission did not make a manifest error of assessment in limiting its assessment to data from Eurostat’s database. In that regard, although adjustments had to be made to resolve certain difficulties, the Court states that the reliability of the data used by the Commission can be called into question only by evidence capable of casting specific doubt on the credibility of the method or data used by that institution. Providing alternative figures, such as figures obtained on the basis of data from the customs authorities of the countries from which the contested imports derived, is not sufficient for the applicant’s claim to be successful. Furthermore, the Court recalls that the Commission enjoys a broad discretion in analysing data, including data provided by Eurostat.

As to the need to carry out an assessment by segment of the injury caused to the EU industry in order to evaluate the various injury indicators, the Court makes clear that such an assessment may be justified where the products covered by the investigation are not interchangeable and where one or more segments are more likely to be concerned than others by the dumped imports. The fact that products belong to different ranges is, however, not sufficient to establish, in itself, that they are not interchangeable and therefore that an assessment by segment may be undertaken, since products belonging to different ranges can have identical functions or satisfy the same needs. Furthermore, the Court notes the lack of evidence concerning any specific and distinct needs of customers satisfied by each of those product categories. As to whether eastern Europe can be segmented from the rest of the European Union, on account of the alleged fact that the competitive conditions in that part of the European Union are less developed, the Court highlights that it was not demonstrated that circumstances of that kind justify, in the present case, the injury caused to the western European industry being assessed separately from that caused to the eastern European industry.

The Court also rejects the complaint alleging errors in the assessment of under-cutting of import prices compared to prices for like products of the EU industry. In that regard, the applicants complain, first, that the Commission’s sample was not representative and, second, that the Commission failed to take account of certain product types sold by the sampled EU producers, there being no comparable imported product type. The Court finds, first of all that the basic regulation permits the Commission to base its investigation, in large-scale cases, on a given number of parties by using a sampling method. ( 7 ) In the present case, since the Commission compiled the sample in accordance with the procedures set out in the basic regulation, undercutting in relation to prices observed in the sales of the sampled EU producers must be regarded as representative for the entire EU industry. The Court also makes clear that an assessment of each product type sold by the sampled EU producers is not required in cases, such as the present, where the product concerned covers a variety of product types which continue to be interchangeable. That principle has, moreover, also been confirmed by the Appellate Body of the World Trade Organisation (WTO), ( 8 ) which has stated that the investigating authority was not required to establish the existence of undercutting for each of the product types under investigation or with respect to the entire range of goods making up the domestic like product. In those circumstances, the Court finds that the existence of an undercutting margin in a range of 31.6% to 39.2%, covering 62.6% of the sales of the sampled EU producers, appears sufficient, in the present case, to conclude that there was significant price undercutting as compared with the price of a like product of the EU industry.

Finally, as regards the possibility of making an adjustment to the normal value of the product concerned on account of value added tax (VAT) where the Commission uses the analogue country method, the Court recalls that the objective of using that method is to prevent account being taken of prices and costs in non-market economy countries to the extent that those parameters are not the normal result of market forces. That does not mean, however, that the normal value thus determined cannot be adjusted at all. ( 9 ) There is nothing in the basic regulation to indicate that using the analogue country method gives rise to a general derogation from the requirement to make adjustments for comparability purposes. However, where adjustments to the normal value are envisaged, they must not reincorporate, in the institutions’ analysis, factors linked to the parameters which, in that country, are not the normal result of market forces. In the present case, the Court concludes that the application to the normal value of the VAT rate applicable in the People’s Republic of China does not amount to introducing or reintroducing an element of distortion of the Chinese system into the calculation of the normal value determined on the basis of the analogue country method.

( 1 ) Commission Implementing Regulation (EU) 2017/1480 of 16 August 2017 imposing a provisional anti-dumping duty on imports of certain cast iron articles originating in the People’s Republic of China, (OJ 2017 L 211, p. 14).

( 2 ) Commission Implementing Regulation (EU) 2018/140 of 29 January 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cast iron articles originating in the People’s Republic of China and terminating the investigation on imports of certain cast iron articles originating in India (OJ 2018 L 25, p. 6).

( 3 ) Judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association (C‑465/16 P, EU:C:2019:155).

( 4 ) Regulation (EU) 2016/1036 of the 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 regulation’).

( 5 ) Article 19(2) of the basic regulation.

( 6 ) Article 19(4) of the basic regulation.

( 7 ) Article 17 of the basic regulation.

( 8 ) Report of the WTO Appellate Body in the dispute ‘China – Measures imposing anti-dumping duties on high-performance stainless steel seamless tubes “HP-SSST” from Japan’ (WT/DS 454/AB/R and WT/DS 460/AB/R, report of 14 October 2015).

( 9 ) Article 2(10) of the basic regulation.