Case T‑607/15

Yieh United Steel Corp.

v

European Commission

Judgment of the General Court (Second Chamber), 3 December 2019

(Dumping — Imports of stainless steel cold-rolled flat products originating in China and Taiwan — Definitive anti-dumping duty — Implementing Regulation (EU) 2015/1429 — Article 2(3) and (5) of Regulation (EC) No 1225/2009 (now Article 2(3) and (5) of Regulation (EU) 2016/1036) — Article 2(1) and (2) of Regulation No 1225/2009 (now Article 2(1) and (2) of Regulation 2016/1036) — Calculation of the normal value — Calculation of the production cost — Sales of the like product intended for consumption on the domestic market of the exporting country)

1. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Price charged in the ordinary course of trade — Concept of ordinary course of trade

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

   (see paragraphs 52-55, 58, 59, 79, 125)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Recourse to the constructed value — Calculation of production costs on the basis of accounting registers — Derogation — Costs linked to the production and sale of the product subject to the investigation not reasonably reflected in those registers — Burden of proof borne by the institutions — Judicial review — Scope

   (Council Regulation No 1225/2009, Art. 2(5))

   (see paragraphs 63-68)

3. 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

   (Council Regulation No 1225/2009, Arts 6(8) and 18)

   (see paragraphs 71-73, 77, 106-110)

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 paragraphs 127-130)

5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Price charged in the ordinary course of trade — Like product intended for consumption on the domestic market of the exporting country — Concept

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

   (see paragraphs 131-133, 135)

Résumé

By its judgment of 3 December 2019, Yieh United Steel v Commission (T‑607/15), the Court dismissed the action brought by Yieh United Steel Corp. seeking the annulment in part of Commission Implementing Regulation (EU) 2015/1429 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. ( 1 )

At the origin of the case is an anti-dumping proceeding conducted by the Commission in 2014 and 2015 which led, by means of the contested regulation, to the imposition of an anti-dumping duty of 6.8% on imports of stainless steel cold-rolled flat products. The applicant is a company established in Taiwan which manufactures and distributes products subject to that anti-dumping duty.

The applicant brought an action before the Court seeking the annulment of Implementing Regulation 2015/1429 in so far as it relates to it, alleging, inter alia, infringement of Article 2 of the basic anti-dumping regulation. ( 2 ) Under Article 2(2) of that regulation, the ‘normal value’ of products subject to the anti-dumping duty is determined on the basis of sales of the like product intended for consumption on the domestic market of the exporting country. In accordance with Article 2(1) of the basic regulation, the normal value of the product subject to the anti-dumping duty is normally based on the prices paid or payable, in the ordinary course of trade, by independent customers.

In that regard, the applicant disputed, inter alia, the Commission’s refusal to deduct the value of recycled scrap from the cost of production of the product subject to the anti-dumping duty for the purposes of determining the normal value. In addition, the Commission wrongly refused to take into consideration certain of its sales to an independent customer in the exporting country, which is also a distributor of the product concerned, which the applicant claimed were domestic sales which it did not intend for export and of which it did not know the end destination. However, the Commission refused to take those sales into consideration for the purposes of determining the normal value of the product concerned on the basis that, according to the investigation report, there was objective evidence that those sales were actually export sales and, moreover, that part of the sales in question was subject to an export rebate system.

The Court considered, first, that the Commission was entitled to reject the claim to deduct the value of recycled scrap from the cost of production of the product subject to the anti-dumping duty, having been unable accurately to verify whether the costs associated with the production and sale of the product concerned were reasonably reflected in the applicant’s accounting records.

As regards the request for account to be taken of the sales of stainless steel cold-rolled flat products to an independent customer in the exporting country, the Court observed first of all that, even where there is divergence between the various language versions of Article 2(2) of the basic regulation, a large proportion of the various language versions refer to the destination of the product concerned without making reference to the intention of the producer as to that destination at the time of the sale.

Next, the Court pointed out, on the one hand, that Article 2.1 of the GATT anti-dumping agreement ( 3 ) uses, in its three official languages, ‘destined for consumption’ in English, ‘destiné à la consommation’ in French and ‘destinado al consumo’ in Spanish and noted, on the other, that the provisions of the basic anti-dumping regulation must, so far as is possible, be interpreted in the light of the corresponding provisions of that anti-dumping agreement.

The interpretation that it is not necessary to seek a ‘specific intention’ or ‘knowledge’ on the part of the vendor as to the final destination of the product concerned is, moreover, confirmed by the Court’s analysis of the context of Article 2 of the basic anti-dumping regulation.

That interpretation is also in line with the purpose of the anti-dumping investigation which consists in seeking objective evidence. In that context, making the exclusion of sales of products which have been exported from the determination of the normal value subject to proof of the intention of the vendor as to the final destination of the product concerned would, according to the Court, be tantamount to allowing the taking into account, for the purposes of determining the normal value, of the prices of exported products that are likely to distort or compromise the correct determination of the normal value.

Lastly, the Court stated that this interpretation is also compatible with the principles of foreseeability and legal certainty. The application of a criterion based on the specific intention or knowledge of the vendor would make taking into account the sale price of the exported products for the purposes of determining the normal value contingent on a subjective element, the existence of which runs the risk of being random or impossible to establish.

The Court thus held that the applicant had failed to demonstrate in the present case that the Commission committed an error of law or a manifest error of assessment by refusing to take into account, for the purposes of determining the normal value of the product involved in the anti-dumping procedure, the applicant’s sales to its independent customer.

( 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, corrigendum OJ 2010 L 7, p. 22).

( 3 ) Article VI of the General Agreement on Tariffs and Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103) set out in Annex 1 A of the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3).