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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Council v Interpipe Niko Tube and Interpipe NTRP [2011] EUECJ C-191/09_P (14 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/C19109_P_O.html
Cite as: [2011] EUECJ C-191/9_P, [2011] EUECJ C-191/09_P
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OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 14 April 2011 (1)
Joined Cases C-191/09 P and C-200/09 P
Council of the European Union (C-191/09 P),
European Commission (C-200/09 P)
v
Interpipe Niko Tube,
Interpipe NTRP
(Appeal – Common commercial policy – Dumping – Regulation (EC) No 384/96 – Articles 2(10), 3(2), 18(3) and 19(3) – Comparison of the normal value and the export price – Adjustment – Rights of the defence – Imports of certain seamless tubes and pipes, of iron or steel, originating in Croatia, Romania, Russia and Ukraine – Regulation (EC) No 954/2006 – Cooperation by the European Union industry – Use of confidential information)
Table of contents
I – Introduction
II – The background to the dispute and the judgment under appeal
III – The procedure before the Court and the forms of order sought
IV – Analysis
A – Grounds of the main appeals alleging errors of law in the General Court’s finding relating to the adjustment made pursuant to Article 2(10)(i) of the basic regulation
1. Grounds of the main appeals, alleging errors of law vitiating the application by analogy of the case-law on the single economic entity concept
a) Arguments of the parties
b) Analysis
2. The pleas of the main appeals, alleging an error of law in allocating the burden of proof that the conditions for applying the adjustment made pursuant to Article 2(10)(i) of the basic regulation have been fulfilled
a) Arguments of the parties
b) Analysis
3. The pleas of the main appeals alleging infringement of the limits of judicial review
a) Arguments of the parties
b) Analysis
B – The third ground of the cross-appeal, alleging errors of law committed in the application of Article 2(10)(i) of the basic regulation in respect of transactions carried out by SEPCO concerning pipes produced by Niko Tube
1. Arguments of the parties
2. Analysis
C – The grounds of the main appeals alleging errors of law in the finding of an infringement of the applicants’ defence rights at first instance in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation
1. Arguments of the parties
2. Analysis
D – The first two grounds of the cross-appeal brought by Niko Tube and NTRP
1. The first ground of the cross-appeal, alleging errors of law which allegedly vitiated the General Court’s examination of the calculation of normal value
a) Essential background to the dispute concerning the exclusion of atomic pipes falling under PCN KE4
b) The five limbs of the first ground of the cross-appeal
c) The first two limbs, alleging, respectively, an infringement of the rights of the defence and a failure to take account of the limits of judicial review
i) Arguments of the parties
ii) Analysis
d) The third limb, alleging failure to respond to a plea
i) Arguments of the parties
ii) Analysis
e) Fourth limb, alleging a manifest error of assessment of the duty of diligence
i) Arguments of the parties
ii) Analysis
f) The fifth limb, alleging a distortion of the clear meaning of the evidence
i) Arguments of the parties
ii) Analysis
2. The second ground of the cross-appeal, alleging errors of law vitiating the examination by the General Court of the determination of the injury caused to the EU industry
a) Preliminary considerations
b) The eight limbs of the second ground of the cross-appeal, alleging errors of law vitiating the examination of the alleged infringement of Article 3(2), (3) and (5) to (7) of the basic regulation
i) Essential background to the relevant aspects of the dispute and the General Court’s considerations
ii) Arguments of the parties
iii) Analysis
– The first two limbs
– The other limbs in so far as they concern related companies listed in paragraph 111 of the judgment under appeal
– The complaints regarding the six companies affiliated to Dalmine
– The complaints concerning VMOG United Kingdom
c) The two limbs of the second ground of the cross-appeal alleging errors of law vitiating the examination of the alleged infringement of Article 19(3) of the basic regulation
i) Arguments of the parties
ii) Analysis
V – The action before the General Court
VI – Costs
VII – Conclusion
I – Introduction
1. By their respective appeals, the Council of the European Union (C-191/09 P) and the European Commission (C-200/09 P) ask the Court to set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 10 March 2009 in Case T-249/06 Interpipe Niko Tube and Interpipe NTRP v Council (2) (‘the judgment under appeal’), in so far as that judgment annulled Article 1 of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (‘the contested regulation’). (3)
2. In their response, Interpipe Niko Tube (‘Niko Tube’) and Interpipe NTRP (‘NTRP’) brought a cross-appeal, pursuant to Article 116 of the Rules of Procedure of the Court, in so far as the General Court rejected their claims.
II – The background to the dispute and the judgment under appeal
3. Niko Tube and NTRP are two Ukrainian companies which produce seamless tubes and pipes. They are affiliated to two sales companies, that is to say SPIG Interpipe (‘SPIG’), established in Ukraine, and SEPCO, established in Switzerland.
4. Following a complaint, the Commission initiated an anti-dumping proceeding in March 2005 concerning imports of seamless pipes and tubes, of iron or steel, originating, inter alia, in Ukraine.
5. The investigation into dumping and resulting injury concerned the period from 1 January to 31 December 2004. Examination of the trends relevant for assessing injury covered the period from 1 January 2001 to 31 December 2004.
6. In view of the large number of Community producers supporting the complaint, the Commission proceeded, pursuant to Article 17 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, (4) as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (5) (‘the basic regulation’), to select five Community producers for the purposes of the investigation. That sample initially comprised the following five Community producers: Dalmine SpA (‘Dalmine’), Benteler Stahl/Rohr GmbH, Tubos Reunidos SA (‘Tubos Reunidos’), Vallourec & Mannesmann France SA and V & M Deutschland GmbH. When Benteler Stahl/Rohr GmbH decided not to cooperate with the investigation, the Commission replaced it with Rohrwerk Maxhütte GmbH.
7. By letters of 6 June and 14 July 2005, Niko Tube and NTRP as well as SPIG and SEPCO sent the Commission their responses to the anti-dumping questionnaire. On-site verifications took place at the premises of Niko Tube and NTRP and those of SPIG from 17 to 26 November 2005.
8. On 27 February 2006, the Commission sent Niko Tube and NTRP the first disclosure document, detailing the facts and considerations on the basis of which it was proposing to adopt definitive anti-dumping measures.
9. By letter of 22 March 2006, Niko Tube and NTRP officially challenged the Commission’s findings as set out in the first disclosure document. They claimed that the Commission had wrongly included data on products which were not manufactured by them, that the Commission compared the normal value and export price at a different level of trade, which is contrary to the introductory part of Article 2(10) of the basic regulation, and that, by treating SEPCO as an importer and constructing its export price, the Commission infringed Article 2(9) of that regulation.
10. Following two hearings in the presence of Niko Tube and NTRP and subsequent contacts with those companies, on 24 April 2006 the Commission adopted its second disclosure document. In that document the Commission rejected the request for the exclusion of certain products not manufactured by Niko Tube and NTRP, that is to say products falling under product control number (‘PCN’) KE4, from the calculation of the normal value. It carried out an adjustment to SEPCO’s sale prices, no longer on the basis of Article 2(9) of the basic regulation, but under Article 2(10)(i) thereof. Finally, in that document, the Commission provided some information regarding the cooperation of the Community industry.
11. By fax of 26 April 2006, Niko Tube and NTRP reminded the Commission that the data provided in response to the anti-dumping questionnaire and verified by the Commission officials demonstrate that the atomic pipes falling under PCN KE4 were not produced by Niko Tube and NTRP.
12. Those companies submitted their full observations on the second disclosure document to the Commission by letter of 4 May 2006.
13. On 7 June 2006 the Commission adopted and made public its proposal for a definitive anti-dumping regulation.
14. By fax received by Niko Tube and NTRP on 26 June 2006 at 19.06 hrs, the Commission replied to the arguments raised by those companies in the fax of 26 April 2006 and the letter of 4 May 2006, save for the argument concerning lack of cooperation from the Community industry. By letter sent to Niko Tube and NTRP on 16 June 2006, which they received on 27 June 2006, the Commission replied to their comments with regard to the support from the Community industry for the proceeding.
15. On 27 June 2006, the Council adopted the contested regulation.
16. By that regulation, the Council imposed anti-dumping duties of 25.1% on imports of seamless pipes and tubes, of iron or steel, from Niko Tube and NTRP.
17. Niko Tube and NTRP brought an action for annulment of the contested regulation before the General Court.
18. In support of their action for annulment, the applicants at first instance put forward six pleas in law, the General Court’s examination of which was rearranged by reference to the facts to which they related, under the following five headings:
– Calculation of the normal value;
– The consequences of the lack of replies to the questionnaire from companies affiliated to the Community producers;
– The adjustment made on the SEPCO sale price;
– The offer of an undertaking by the applicants (at first instance);
– The treatment of sales costs, administrative costs and other general expenses of SPIG.
19. In the judgment under appeal, the General Court rejected most of the pleas put forward by the applicants at first instance.
20. Nevertheless, it upheld, with respect to transactions relating to pipes manufactured by NTRP, the limb of the fourth plea relied on by the applicants at first instance, alleging the existence of a manifest error of assessment in the application of Article 2(10)(i) of the basic regulation in that the Council made an adjustment to the export price charged by SEPCO.
21. The General Court also upheld, with respect to the two applicants at first instance, the limb of the sixth plea relied on, alleging breach of the rights of the defence in the context of the application of that adjustment.
22. The General Court therefore annulled Article 1 of the contested regulation in so far as the anti-dumping duty fixed for exports towards the European Community of the products manufactured by the applicants at first instance exceeded that which would have been applicable had the export price not been adjusted for a commission when sales had taken place through the intermediary of the affiliated trader SEPCO.
III – The procedure before the Court and the forms of order sought
23. On 27 and 29 May 2009, the Commission and the Council respectively appealed against the judgment under appeal.
24. By order of the President of the Court of 15 July 2009 the two cases were joined for the purposes of the written and oral procedure and the judgment.
25. By its appeal, the Council claims that the Court should:
– set aside the judgment under appeal in so far as the General Court: (1) annulled Article 1 of the contested regulation; and (2) ordered the Council to bear its own costs and pay one quarter of the costs incurred by the applicants at first instance;
– dismiss the application in its entirety; and
– order the applicants at first instance to pay the costs of the appeal and of the procedure before the General Court.
26. In its appeal the Commission claims that the Court should:
– set aside paragraph 1 of the operative part of the judgment under appeal;
– dismiss the application in its entirety;
– order the applicants at first instance to pay the costs incurred by the Commission in the present appeal.
27. In their responses, Niko Tube and NTRP contend that the Court should:
– dismiss the Council’s appeal as partially inadmissible and in any event as unfounded in its entirety;
– dismiss the Commission’s appeal as partially inadmissible and in any event as unfounded in its entirety;
– confirm the judgment under appeal in so far as it upholds the pleas put forward by the applicants at first instance and in so far as it annuls the contested regulation in so far as the anti-dumping duty fixed for exports towards the Community of the products manufactured by Niko Tube and NTRP exceeded that which would have been applicable had the export price not been adjusted for a commission when sales had taken place through the intermediary of the affiliated trader SEPCO;
– uphold the order as to costs made in the judgment under appeal and order the Council to pay the costs incurred by the applicants at first instance before the Court in connection with its appeal;
– order the Commission to pay the costs of the applicants at first instance before the Court in relation to the Commission’s appeal. The Commission should, in any event, bear its own costs and those of the applicants at first instance for the response before the Court, as it chose to submit a separate appeal against the judgment under appeal when it could have been heard at the same time if it remained an intervener in this case. In any event, the costs of the Commission for the proceedings before the Court should be borne by the Commission alone.
28. In their cross-appeal, Niko Tube and NTRP claim that the Court should:
– set aside the judgment under appeal, in so far as the General Court did not annul the contested regulation in its entirety and in so far as it ordered the applicants at first instance to bear three quarters of their costs incurred in the proceedings before it;
– give final judgment in the case and annul the contested regulation in its entirety;
– order the Council and the Commission to bear their own costs and to pay those incurred by the applicants at first instance before the General Court and before the Court of Justice in these proceedings.
29. In their respective responses to the cross-appeal, the Council and the Commission submit that the Court should:
– dismiss the cross-appeal;
– in the alternative, refer the case back to the General Court;
– order the applicants at first instance to pay the costs of the cross-appeal.
30. The parties presented oral argument at the hearing before the Court of 18 November 2010.
IV – Analysis
31. In support of its appeal, the Council relies on seven grounds. The first four grounds of appeal relate to the General Court’s finding set out in paragraphs 177 to 187 of the judgment under appeal regarding the adjustment made pursuant to Article 2(10)(i) of the basic regulation and, consequently, that carried out in paragraphs 196 and 197 of the judgment under appeal. Those grounds are essentially identical to the first three pleas put forward by the Commission in support of its own appeal. It is therefore appropriate to examine them together.
32. To the extent that, in their cross-appeal, Niko Tube and NTRP also criticise the partial rejection by the General Court of their plea at first instance relating to the application of Article 2(10)(i) of the basic regulation, I propose to examine the third ground of their appeal immediately after those of the main appeals relating to that provision.
33. In the main appeal, the Council relies on three other grounds, alleging errors of law allegedly committed by the General Court, in paragraphs 202 to 211 of the judgment under appeal, in finding that the rights of defence of the applicants at first instance were infringed in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation. Those grounds may be analysed concurrently with the fourth ground put forward by the Commission, which criticises the same paragraphs of the judgment under appeal.
34. Finally, I shall examine the first two grounds of the cross-appeal put forward by Niko Tube and NTRP, which are concerned with the findings of the General Court other than those relating to the application of Article 2(10)(i) of the basic regulation.
A – Grounds of the main appeals alleging errors of law in the General Court’s finding relating to the adjustment made pursuant to Article 2(10)(i) of the basic regulation
35. These grounds relate to three aspects of the General Court’s reasoning. First, the Council and the Commission criticise the General Court for having applied by analogy the case-law on the single economic entity concept laid down in the context of calculating normal value. Secondly, they consider that the General Court wrongly placed on those two European Union (‘EU’) institutions the burden of proving that the conditions for application of Article 2(10)(i) of the basic regulation were met. Thirdly and finally, the Council and the Commission complain that the General Court exceeded the limits of its powers of judicial review.
1. Grounds of the main appeals, alleging errors of law vitiating the application by analogy of the case-law on the single economic entity concept
a) Arguments of the parties
36. The Council and the Commission criticise the General Court for having held, in paragraph 177 of the judgment under appeal, that the consistent case-law of the Court concerning consideration of the existence of a single economic entity, relevant for the calculation of the normal value, was applicable, by analogy, in the context of the calculation of the export price. According to those institutions, the calculation of the normal value, the determination of the export price and their comparison are governed by a series of separate rules, each of which must be satisfied separately. The single economic entity concept is concerned solely with certain specific situations on the domestic market of exporters. It is therefore relevant only in the context of the calculation of the normal value. According to the Commission, the case-law of the Court to which the General Court failed to refer in the judgment under appeal confirms that assessment.
37. The Council and the Commission also refer to an internal inconsistency in the General Court’s reasoning in that it states, in paragraph 177 of the judgment under appeal, that the single economic entity concept applies by analogy to the calculation of the export price, although the dispute brought before it relates to the adjustment made after calculating that price.
38. In the light of those considerations, the Council and the Commission also submit that the General Court should have explained why it considered that the single economic entity concept was applicable by analogy in the context of determining the export price.
39. Niko Tube and NTRP argue first of all that this ground is inadmissible because the Council and the Commission have already had an opportunity to challenge the relevance of the use of the single economic entity concept before the General Court.
40. Next, as to the substance, Niko Tube and NTRP consider that the General Court correctly held that the single economic entity concept was relevant in the determination of the export price before and after the adjustment made pursuant to Article 2(10)(i) of the basic regulation. The issue of the existence of control and of the sharing of production and sales activities within a group formed by legally distinct entities and, therefore, the issue of whether there is a single economic entity simply constitute findings concerning the actual commercial situation, that is to say describe the respective roles and functions of the related separate entities. In so far as the General Court recognises that the determination of the normal value and the determination of the export price are governed by different specific rules, it is normal, in the view of those companies, that it should refer to the application ‘by analogy’ of the concept that the sharing of activities does not prevent the entities concerned from constituting a single economic entity. Furthermore, the fact that the consequences of a single economic entity may differ for the determinations of normal value and export price does not prevent a broader application of the consistent case-law relating to that concept, which the Court has thus far examined only in the context of certain disputes.
b) Analysis
41. At the outset, I consider that the plea of inadmissibility raised by Niko Tube and NTRP must be rejected. The fact that the Council and the Commission could, if necessary, have disputed the relevance of applying the single economic entity concept in the context of the case brought before the General Court in no way deprives them of the possibility of criticising the findings, set out in the judgment under appeal, which the General Court arrived at in that regard. Moreover, no paragraph in that case mentions the fact that those two institutions accepted the application of that concept in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation.
42. On the merits, it should first be recalled that under Article 1(2) of the basic regulation, a product is to be considered as being dumped if its export price to the European Union is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.
43. According to the basic regulation, the dumping margin is to be the amount by which the normal value exceeds the export price. The determination of the existence of dumping is therefore based on a fair comparison between the normal value, based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country, and the export price, that is to say the price actually paid or payable for the product sold for export to the European Union.
44. Under Article 2(10) of that regulation, a fair comparison is to be made at the same level of trade and in respect of sales made at as nearly as possible the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price are not on such a comparable basis, the same provision of the basic regulation provides that due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.
45. Among the factors for which adjustment can be made is that provided for by Article 2(10)(i) of that regulation, entitled ‘Commissions’. Under that provision ‘[a]n adjustment shall be made for differences in commissions paid in respect of the sales under consideration. The term “commissions” shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis’.
46. According to recital 132 in the preamble to the contested regulation, and as explained by the Council and Commission, the Council made a downward adjustment of the export prices of Niko Tube and NTRP for all sales of their products destined for the European Union made through SEPCO, either solely through SEPCO or through SEPCO and SPIG, pursuant to Article 2(10)(i) of the basic regulation.
47. That adjustment had the effect of increasing the gap between the normal value and the export price of Niko Tube and NTRP’s products and thus of increasing the dumping margin.
48. According to the Council, the adjustment thus made was based on the following two considerations. First, SEPCO was regarded as a trader who performed functions ‘comparable to those of an agent working on a commission basis’ because Niko Tube and NTRP, on the one hand, and SEPCO, on the other hand, obtained the same financial results as in the context of a relationship of principal to agent by behaving as sellers and a buyer. Secondly, there was a disparity between the normal value and the export price, namely that, while all the sales on the domestic market made through SPIG involved a payment solely to that company, all export sales made by SEPCO (either alone or jointly with SPIG) resulted in a payment to SPIG and to SEPCO, since SPIG received payments for all export transactions made through SEPCO.
49. Both during the investigation period and in their appeal before the General Court, Niko Tube and NTRP claimed that they formed with SPIG and SEPCO a single economic entity and, therefore, that the adjustment made pursuant to Article 2(10)(i) of the basic regulation could not apply.
50. It is in that context that, in paragraph 177 of the judgment under appeal, the General Court began the examination of Niko Tube and NTRP’s plea, alleging a manifest error of assessment in the application of Article 2(10)(i) of the basic regulation, noting that ‘[a]ccording to consistent case-law concerning the calculation of the normal value, but applicable by analogy to the calculation of the export price, the sharing of production and sales activities within a group formed by legally distinct companies does not alter the fact that one is dealing with a single economic entity which organises in that manner a series of activities which are carried out, in other cases, by an entity which is also a single entity from the legal point of view (see, by analogy, Case 250/85 Brother Industries v Council [1988] ECR 5683, paragraph 16; Case C-175/87 Matsushita Electric v Council [1992] ECR I-1409, paragraph 12; Case C-104/90 Matsushita Electric Industrial v Council [1993] ECR I-4981, paragraph 9)’.
51. The criticisms of the Council and Commission in respect of that paragraph of the judgment under appeal are threefold. First, according to those institutions, the very principle of using the single economic entity concept outside the context of the calculation of normal value is inconceivable, as demonstrated by the case-law of the Court. Next, the Council and the Commission criticise the General Court for having failed to explain why it extended the Court’s case-law developed in the context of calculating normal value. Finally, the premiss of the General Court’s reasoning, set out in paragraph 177 of the judgment under appeal, is inconsistent with the factual situation on which it had to adjudicate, since the dispute does not relate to the calculation of the export price, but to the adjustment made to that price, pursuant to Article 2(10)(i) of the basic regulation.
52. Although, at first sight, those complaints do not appear without some substance, they ultimately fail to convince me.
53. As regards the last point first of all, I fully recognise that while the criticism of Niko Tube and NTRP relates to the third stage of calculating the dumping margin, that is to say the fair comparison between the normal value and the export price, for which the adjustment provided for in Article 2(10)(i) of the basic regulation has been made, paragraph 177 of the judgment under appeal merely refers to the second stage of determining the dumping margin, that is to say that relating to the calculation of the export price.
54. Moreover, given the need to make a distinction between the three stages of the calculation leading to the determination of the dumping margin, a distinction which clearly follows from the basic regulation itself, the reference to the calculation of the export price cannot have been employed by the Court as also designating, more broadly, the adjustment made to that price pursuant to Article 2(10)(i) of that regulation.
55. Accordingly, although, in my view, it must be accepted that the criticisms of the Council and the Commission directed against the approximate wording of paragraph 177 of the judgment under appeal are well founded, they nevertheless seem to me to be irrelevant.
56. It is undisputed that the ground of appeal of the Council and the Commission is concerned with the application by analogy made by the General Court of the single economic entity criterion outside the context of the calculation of normal value, that is to say also in connection, as in this case, with the adjustment made pursuant to Article 2(10)(i) of the basic regulation.
57. It is therefore to that extent that it is necessary to consider the other two complaints in the present ground.
58. With regard to the first complaint highlighted in point 51 above, it is true that the case-law of the Court relating to the single economic entity concept was developed in the context of calculating normal value. However, as the Council also admitted at the hearing, that fact alone does not mean that the use of that concept outside the context of calculating normal value constitutes an error of law.
59. More fundamentally, it should be noted, as the General Court essentially did in paragraph 178 of the judgment under appeal, that using the single economic entity concept in the context of calculating normal value is intended to include in the sale price of a product the sales by a company legally distinct from the producer, but economically controlled by the latter and with which it thus forms a single economic entity, just as those sales would be if they were made by the producer’s internal sales department. (6)
60. The reason for that assimilation is simple to understand: it avoids costs which are clearly included in the sale price of a product when the sale is carried out by an integrated department in the producer no longer being included where the sale is carried out by a company which, although legally distinct, is economically controlled by the producer. (7)
61. In doing so, discriminatory treatment between producers (8) and an artificial depreciation of the normal value are avoided, since the distributing company which forms a single economic entity with a producer undoubtedly cannot be regarded as the first independent buyer for the purposes of calculating that value.
62. Similarly, if a producer distributes its products for export to the European Union through a company which is legally distinct, but over which it has economic control, I do not see any compelling legal or economic reason for precluding the possibility of recognising that those two operators constitute a single economic entity, which, of course, may affect the calculation of the export price or the comparison of that price with the normal value.
63. Although the Council and the Commission admitted at the hearing before the Court that the existence of a single economic entity between a producer and a distribution company precludes making the adjustment provided for in Article 2(10)(i) of the basic regulation – which already seems to confirm the idea that the single economic entity criterion may also be relevant in assessing the evaluations made in the context of comparing the normal value and the export price – those institutions none the less consider that the case-law of the Court rejected the extension made by the General Court.
64. It is true that, in particular in Minolta Camera v Council, (9) referred to insistently by the Commission, the Court held that determination of the normal value and determination of the export price are governed by separate rules and that therefore selling, general and administrative expenses need not necessarily be treated in the same way in both cases. (10)
65. Indeed, it is quite possible for a producer to operate on its domestic market through a sales company with which it constitutes a single economic entity, while that is not the case when the producer operates on the export market. Moreover, that was the situation in Minolta Camera v Council. It follows from the judgment of the Court in that case that the selling, administrative and other general expenses of the sales subsidiaries within the exporting country, in that case Japan, which had acted as a sales department of Minolta, were in reality, according to the Court, only comparable to those of its export department, whose equivalent expenses were not deducted from the export price, not, as that company claimed, to those of its European subsidiaries, which led the Court to state that any differences in the amount of those expenses could be taken into account under the adjustments to be made in accordance with the basic regulation applicable at the time of that case. (11)
66. However, first, I do not see why the opposite situation could not arise, namely that a producer of a non-member State operates on its domestic market through a company which it does not control economically, while it distributes its products to the European Union through a company with which it forms a single economic entity. Secondly, I have trouble conceiving what would allow the Council and the Commission to avoid a finding which reflects the economic reality of the relationship between a producer of a non-member State and one of its sales companies on the market for exports to the European Union.
67. In other words, if a producer of a non-Member State and one of its sales companies for exports to the European Union constitute a single economic entity, the economic reality cannot be ignored. By its very nature, such a finding precedes any issue relating to the rules and procedures to apply in determining the three stages of the calculation for establishing the dumping margin. The fact remains that if such a situation must be found to exist, it entails consequences either for the determination of the export price or for the calculation of the adjustments made in the context of the fair comparison between the normal value and the export price. A contrary conclusion would lead to an artificial depreciation of the export price with the aim of increasing the dumping margin.
68. In this case, as I have already stated, the Council acknowledged that the existence of a single economic entity between a producer of a non-member State and the company which carries out its exports to the European Union precludes making the adjustment pursuant to Article 2(10)(i) of the basic regulation.
69. Moreover, it is important to note that, as the General Court pointed out in paragraph 182 of the judgment under appeal, in its fax of 26 June 2006, the Commission set out three factors on which it based its conclusion that SEPCO carried out functions comparable to those of an agent working on a commission basis, which relate to the commercial functions of SEPCO and to the control exercised by Niko Tube and NTRP on the latter. (12) However, those factors in the analysis are largely common to those used in the context of determining whether a single economic entity exists, as is evident from the judgment referred to in paragraph 179 of the judgment under appeal. (13)
70. Therefore, I consider that the General Court’s finding was not vitiated by an error of law in that the General Court started from the premiss that the single economic entity criterion was relevant for verifying whether, as the Council stated in the contested regulation, the conditions for applying Article 2(10)(i) of the basic regulation were satisfied.
71. In those circumstances, it is also necessary, in my view, to reject the common argument of the Council and the Commission that the General Court was under a particular obligation to explain the application by analogy of the case-law on the single economic entity concept developed in the context of calculating normal value.
72. I therefore suggest that the grounds of the main appeals alleging errors of law vitiating the application by analogy of the case-law on the single economic entity concept should be rejected as partly irrelevant and partly unfounded.
2. The pleas of the main appeals, alleging an error of law in allocating the burden of proof that the conditions for applying the adjustment made pursuant to Article 2(10)(i) of the basic regulation have been fulfilled
a) Arguments of the parties
73. The Council and the Commission consider that the General Court wrongly held in paragraph 180 of the judgment under appeal, that it was incumbent upon the institutions to provide direct evidence or at least circumstantial evidence pointing to the existence of the factors for which the adjustment at issue was made. Moreover, the reference in that paragraph of the judgment under appeal to Kundan and Tata v Council (14) is also irrelevant in the present case, since the latter case dealt with events prior to the amendment of the basic regulation on which the contested regulation is based.
74. Niko Tube and NTRP propose that those grounds of the main appeals should be rejected.
b) Analysis
75. In paragraph 180 of the judgment under appeal, the General Court held that ‘… just as a party who is claiming adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin must prove that his claim is justified, it is incumbent upon the institutions, where they consider that they must make an adjustment, to base their decision on direct evidence or at least on circumstantial evidence pointing to the existence of the factors for which the adjustment was made, and to determine its effect on price comparability (Case T-88/98 Kundan and Tata v Council [2002] ECR II-4897, paragraph 96)’.
76. Contrary to what the Council and the Commission state, that finding does not seem to me to involve any error of law.
77. In that regard, it should be noted that Article 2(10) of the basic regulation provides that where the normal value and the export price as established are not on a comparable basis due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.
78. The impersonal form used by that provision does not establish the persons who have the burden of identifying the factors giving rise to the need to make an adjustment and demonstrating the extent to which that factor affects the comparability of prices on the internal market and on the export market to the European Union. (15)
79. In those circumstances, the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them.
80. Thus, where a producer claims that a (downward) adjustment of the normal value or an (upward) adjustment of the export price applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. (16)
81. Conversely, as the General Court rightly ruled, where, as in the present case, the Commission and the Council consider that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is their responsibility to adduce at the very least convergent evidence showing that that condition is fulfilled.
82. Accordingly, I propose that the pleas of the main appeals alleging an error of law in allocating the burden of proof that the conditions for applying the adjustment made pursuant to Article 2(10)(i) of the basic regulation have been met should be rejected.
3. The pleas of the main appeals alleging infringement of the limits of judicial review
a) Arguments of the parties
83. The Council and the Commission submit that, contrary to the case-law applicable in the field, which, moreover, it did not consider, the General Court did not merely check whether those institutions based their decision on incorrect facts or committed a manifest error of assessment by making the adjustment provided for in Article 2(10)(i) of the basic regulation. On the contrary, in paragraphs 184 to 189 of the judgment under appeal, it substituted its own assessment for that of those institutions by wrongly applying the single economic entity criterion.
84. Furthermore, the General Court’s assessment was limited, also incorrectly, to the three factors outlined in the fax from the Commission dated 26 June 2006, without taking into account the additional explanations provided by the Council in the judicial proceedings at first instance. Moreover, the General Court misunderstood some of the reasons set out in that fax, which governed the application of the adjustment provided for in Article 2(10)(i) of the basic regulation.
85. The Commission also argues that the General Court’s conclusion that the institutions could not make the adjustment at issue is inconsistent with that, set out in paragraph 213 of the judgment under appeal, according to which the General Court ruled that the fax of 26 June 2006 contained a detailed statement of the reasons why that adjustment was made.
86. Finally, the Council and the Commission indicate that the fact that their complaints are well founded automatically invalidates the General Court’s finding in paragraphs 193 to 197 of the judgment under appeal in so far as it relates to the relationship between NTRP and SEPCO, since the General Court considered in those paragraphs that the plea of the applicants at first instance, alleging a manifest error of assessment concerning the application of the first paragraph of Article 2(10) of the basic regulation, was not independent of the plea put forward by those applicants at first instance of a manifest error of assessment concerning the application of Article 2(10)(i) of that regulation.
87. Niko Tube and NTRP submit that the General Court has exercised a correct degree of control over the assessments made by the institutions, without substituting its own assessment for that of the latter. It merely checked whether the requirements of Article 2(10)(i) of the basic regulation had been complied with and whether the facts had been properly assessed.
88. Moreover, in their view, it is clear that the General Court took into consideration and evaluated all the arguments of the Council and the Commission and the available information provided by the parties before concluding that the institutions had committed a manifest error in that they had not presented sufficient evidence that SEPCO had operated as an agent working on a commission basis in connection with transactions involving pipes manufactured by NTRP. Moreover, Niko Tube and NTRP argue that the institutions cannot properly consider that the fact that a sales company which is related to or under the common control of an exporting producer sells the product concerned in the European Union is sufficient to conclude automatically that the company carries out functions comparable to those of an agent. If that were the case, it would have been sufficient for Article 2(10)(i) of the basic regulation to state that a trader’s mark-up can be the subject of an adjustment. However, that is rightly not the case, as the General Court ruled.
89. Those companies add that the General Court was perfectly justified in concluding that the institutions had committed a manifest error of assessment in applying the first paragraph of Article 2(10) of the basic regulation. As such, the adjustment maintained or created an asymmetry as contemplated by the General Court in paragraph 195 of the judgment under appeal.
b) Analysis
90. Before examining the nub of these grounds of appeal put forward by the appellants in the main appeals, which relates to the scope of the judicial review carried out by the General Court, it is necessary from the outset to reject two ancillary arguments put forward, respectively, by the Commission and the Council concerning the alleged inconsistency in the reasoning of the General Court and the alleged failure of the latter to take into account the additional reasons given by the Council during the proceedings at first instance.
91. On the first point, there is clearly no substance to the criticism that the judgment under appeal is vitiated by contradictory reasoning in that the General Court noted, first, in particular in paragraph 184 of that judgment, that the reasons set out in the fax from the Commission of 26 June 2006 does not constitute evidence sufficient to justify the adjustment made pursuant to Article 2(10)(i) of the basic regulation and, secondly, in paragraph 213 the same judgment, that that fax provided a detailed statement of the reasons why that adjustment had been made. While paragraph 184 of the judgment under appeal is concerned with the examination of the merits of the reasons put forward in the fax of 26 June 2006, that is to say, the substantive legality of the contested regulation, paragraph 213 of that judgment merely held that the Commission had fulfilled, in particular in that fax, the obligation to state clearly and unequivocally the reasons which had led to the adjustment at issue, that is to say compliance with an essential procedural requirement. (17) Moreover, paragraph 213 of the judgment under appeal relates specifically to the examination of a plea alleging infringement of the obligation to state reasons.
92. It seems to me that the criticism made by the Council that the General Court disregarded the additional explanations – additional to the three reasons contained in the fax from the Commission of 26 June 2006 – which the Council had provided during the proceedings at first instance is also unfounded.
93. First of all, since the Council’s argument must be interpreted as a complaint that the General Court did not take into consideration explanations subsequent to the sending of the fax of 26 June 2006 and the adoption of the contested regulation dated the following day, and which were, moreover, new in relation to the reasons contained in that fax and in that measure, such an argument should clearly be rejected. Indeed, it would be tantamount to criticising the General Court for having refused to allow the institution to substitute a new statement of reasons for the initial statement of reasons resulting from the fax of 26 June 2006 and the wording of the contested measure. The General Court cannot, without erring in law, allow in the course of the proceedings an institution to replace the grounds for the measure contested before the General Court with new grounds. (18)
94. Then, provided that the Council’s argument must be interpreted as criticising the General Court for having disregarded additional explanations detailing the reasons which led to the adjustment made pursuant to Article 2(10)(i) of the basic regulation, it should be pointed that the Council merely refers generally to a dozen or so paragraphs in its pleadings at first instance without identifying sufficiently clearly which explanations have been disregarded by the General Court. (19) In any event, it must be noted that the General Court, at the very least, actually took into account the essential considerations set out by the Council during the proceedings at first instance to justify the adjustment made pursuant to Article 2(10)(i) of the basic regulation. Thus, in paragraph 185 of the judgment under appeal, the General Court addressed the argument, briefly developed in the Council’s pleadings, concerning the direct sales destined for the new Member States carried out by Niko Tube and NTRP. Similarly, the General Court examined, in paragraph 186 of that judgment, the role of SPIG in sales destined for the European Union, an argument on which the Council insisted in its defence at first instance, and, in paragraph 187 of the judgment under appeal, the ties that Niko Tube and NTRP maintained with SEPCO, on each occasion referring either to the submissions of the parties during the proceedings at first instance or to the documents in the case put before the General Court by the parties.
95. I therefore propose that those two arguments, relied on by the Commission and the Council respectively, should be rejected.
96. I now come to the essential issue raised by these grounds of the main appeals, which are concerned with the scope of the review exercised by the General Court over the assessments made by the Commission and Council.
97. Primarily, it is important to point out that, in the judgment under appeal, the General Court first recalled, in paragraph 182 of that judgment, the three factors on which the institutions based their conclusion that SEPCO carried out functions comparable to those of an agent working on a commission basis, within the meaning of Article 2(10)(i) of the basic regulation.
98. As to the first factor, namely Niko Tube and NTRP’s carrying out direct sales of the product concerned in the Community, the General Court, in paragraph 185 of the judgment under appeal, pointed out that a single economic entity may exist where the producer assumes some of the sales functions complementary to those of the distribution company for its products. After having noted that it was clear from the parties’ pleadings that the direct sales in the Community had been destined for the new Member States during a transitional phase and that the volume of direct sales represented only 8% of the total sales volume towards the Community, the General Court found that Niko Tube and NTRP had assumed only sales functions that were complementary to those of SEPCO for a transitional period only.
99. Regarding the second factor, which concerned the fact that SPIG, the connected sales company in Ukraine, intervened as a sales agent for sales carried out by Niko Tube and NTRP to SEPCO, the General Court pointed out, in paragraph 186 of the judgment under appeal, that the Council did not in any way explain how SPIG’s receiving a commission on the sales of Niko Tube and NTRP to SEPCO is supposed to demonstrate that SEPCO carried out functions comparable to those of an agent working on a commission basis or prevents recognition of its status as Niko Tube and NTRP’s internal sales department.
100. As to the third factor, according to which SEPCO’s connections with Niko Tube and NTRP were insufficient and do not support the conclusion that SEPCO is under Niko Tube and NTRP’s control or that there was a control common to SEPCO and to Niko Tube and NTRP, the General Court pointed out, in paragraph 187 of the judgment under appeal, that the evidence on file showed that SEPCO and NTRP were linked by a common parent company, which held 100% of SEPCO’s capital and 24% of NTRP’s capital during the investigation period. Accordingly, the General Court found that that was a fact which, if corroborated by other relevant factors, might contribute to establishing that there was a control common to SEPCO and NTRP and which, in any event, did not demonstrate the insufficiency of the links between SEPCO and NTRP. On the other hand, the General Court held, in paragraph 188 of the judgment under appeal, that the evidence on file did not demonstrate that SEPCO was under the control of Niko Tube or that there was a control common to both companies.
101. Accordingly, the General Court considered that the factors put forward in the fax of 26 June 2006 to justify the adjustment under Article 2(10)(i) of the basic regulation could not be regarded as ‘sufficiently convincing’ and could not therefore be regarded as evidence establishing the existence of the factor on the basis of which the adjustment was made and enabling its impact on price comparability to be determined (paragraph 184 of the judgment under appeal). It therefore accepted the limb of the plea at first instance claiming a manifest error of assessment in applying that article of the basic regulation in so far as the adjustment had been made on the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by NTRP, and rejected that limb in so far as it concerned the adjustment of the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko Tube (paragraphs 188 and 190 of the judgment under appeal).
102. The Council and the Commission consider that, by acting in that way, the General Court has encroached on their broad discretion and that it has therefore exceeded the limits of its judicial review.
103. In that connection, it is true that the Court has held that, 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. (20)
104. Furthermore, it is also apparent from the case-law that judicial review of an appraisal of complex economic situations is limited to verifying whether relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. (21) When conducting that restricted review of complex economic situations, the EU Courts therefore cannot substitute their own economic assessment for that of the EU institutions. (22)
105. However, as the Court pointed out in the context of competition law and State aid, fields which, as in the field of measures to protect trade, give rise to complex economic assessments, the broad discretion enjoyed by the institutions does not mean that the EU Courts must refrain from reviewing the ‘interpretation’ by those institutions of information of an economic nature. (23)
106. Indeed, according to that case-law, not only must the EU Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. (24)
107. The case-law therefore draws, in that context, a distinction between what the EU Courts are prohibited from doing, namely substituting their own economic assessment for that of the institutions, and what they are allowed to do, that is to say checking the legal classification that the institutions have placed on economic factors. (25) The issue is therefore the dichotomy between, first, the assessment of facts of an economic nature carried out by the institutions, the judicial review of which precludes a new independent assessment by the courts and must be confined to establishing a manifest error and, secondly, the legal classification of the facts which is subject, as a point of law, to full review by the EU Courts.
108. In the present case, it is certainly true, as the Commission pleads, that the General Court did not consider the case-law according to which the scope of its review over complex economic assessments undertaken by the institutions, such as those at issue in the present grounds of the main appeals, is limited.
109. However, that omission cannot in itself constitute conclusive evidence that the General Court exceeded the scope of its review.
110. In actual fact, even if the statement of reasons for the judgment under appeal is not free from all criticism, I consider that the Council and the Commission are mistaken as to the substance of the review which was carried out by the General Court.
111. The General Court did not conduct an independent new assessment of the facts, as the Council and the Commission complain that it did, but merely examined, as it was entitled to do in the light of the case-law referred to in points 105 and 106 above, whether the three reasons set out in the fax of 26 June 2006 supported the institutions’ conclusion that SEPCO carried out functions comparable to those of an agent working on a commission basis and therefore justified the adjustment made pursuant to Article 2(10)(i) of the basic regulation as, in essence, the second sentence of paragraph 184 of the judgment under appeal emphasises.
112. That seems particularly clear to me as regards the review carried out by the General Court concerning the second and third factors listed in the fax of 26 June 2006. With regard thereto, the General Court, in essence, merely noted, respectively, first, that the Council did not provide sufficient explanations regarding the impact of the intervention by SPIG on the classification of SEPCO as carrying out functions comparable to those of an agent working on a commission basis and, secondly, that the relationship between SEPCO and NTRP within a common parent company did not demonstrate, as the institutions claimed, the insufficiency of the links between those two companies so as to preclude the existence of a single economic entity, as Niko Tube and NTRP had argued during the administrative procedure and before the General Court.
113. Admittedly, the examination by the General Court of the first factor concerning the existence of sales made directly by Niko Tube and NTRP to the European Union, which, according to the institutions, was evidence showing that SEPCO was not acting as an integrated export sales service for those companies, might, prima facie, qualify, at least in part, my assessment. The General Court, by stating, in paragraph 185 of the judgment under appeal, on the basis of the information produced by the parties before it, that Niko Tube and NTRP assumed only sales functions that were complementary to those of SEPCO for a transitional period only (which may suggest the existence of a single economic entity), appears to have carried out its own assessment of factors of an economic nature which were the subject of dispute during the proceedings.
114. Although the wording of the last sentence of paragraph 185 of the judgment under appeal may lead to criticism, the argument which is set out in that paragraph of the judgment undoubtedly also forms part of the examination, referred to in paragraph 184 of that judgment, of whether the conclusions reached by the institutions as to the functions exercised by SEPCO are substantiated. In the final analysis, in conducting its analysis in paragraph 185 of the judgment under appeal, the General Court pointed out that the inference made by the institutions concerning the existence of direct sales by Niko Tube and NTRP was so incorrect that, in the light of the undisputed information, they should have reached the opposite conclusion.
115. Consequently, the General Court has not, in my view, substituted its own economic assessment for that of the institutions. On the contrary, it has carried out a review of the legal classification of the economic data by those institutions and found that the three factors set out in the fax of 26 June 2006 did not constitute evidence supporting their conclusion that SEPCO met the requirements allowing application of the adjustment pursuant to Article 2(10)(i) of the basic regulation, at least with regard to the transactions concerning pipes produced by NTRP.
116. Finally, I am also of the view that the General Court did not err in law when it ruled, in paragraph 195 of the judgment under appeal, in the context of Niko Tube and NTRP’s plea concerning the application of the first paragraph of Article 2(10) of the basic regulation, that, in so far as the adjustment pursuant to Article 2(10)(i) of that provision had been incorrectly made as regards the transactions carried out by SEPCO concerning pipes produced by NTRP, that implied that that adjustment had maintained or created an asymmetry between the normal value and the export price. The maintenance or introduction of such asymmetry affects the requirement, set out in the first paragraph of Article 2(10) of the basic regulation, to make a fair comparison between the normal value and the export price.
117. I therefore suggest that the grounds of the main appeals alleging infringement of the limits of judicial review should be rejected.
B – The third ground of the cross-appeal, alleging errors of law committed in the application of Article 2(10)(i) of the basic regulation in respect of transactions carried out by SEPCO concerning pipes produced by Niko Tube
1. Arguments of the parties
118. Niko Tube and NTRP argue that the General Court erred in law when it, in essence, confirmed, in paragraphs 187 to 190 of the judgment under appeal, that SEPCO had acted as an agent working on a commission basis with respect to transactions concerning pipes produced by Niko Tube. According to those companies, the fact that the shareholding relations were not the same between SEPCO and Niko Tube as those between SEPCO and NTRP does not mean in law that SEPCO exercised the functions of an agent working on a commission basis in its relations with Niko Tube. Contrary to the finding of the General Court, control may also exist even if the two companies at issue do not have the same final beneficiaries (‘ultimate beneficiaries’). It is therefore necessary to distinguish between the existence of control and the existence of a company shareholding. Moreover, in the opinion of Niko Tube and NTRP, the mere existence of a buying and selling relationship between an exporter and its related distribution company is not sufficient to treat the margin of the latter company as a commission, within the meaning of Article 2(10)(i) of the basic regulation. In any event, the General Court’s findings concerning the relationship between SEPCO and Niko Tube are incorrect in so far as they rely on facts and reasoning developed after the close of the administrative procedure.
119. In their respective responses to the third ground of the cross-appeal, the Council and the Commission contend that the ground is inadmissible or, at the very least, unfounded. The Council considers that the ground is inadmissible in so far as it could not affect the operative part of the judgment under appeal, since the General Court had already annulled Article 1 of the contested regulation. The Commission, for its part, considers that the arguments put forward in support of the third ground of the cross-appeal are unsubstantiated and insufficiently precise, thereby rendering that ground inadmissible. On the merits, those institutions argue, in essence, that Niko Tube and NTRP ought to have identified the evidence on the file which demonstrated that SEPCO was under the control of Niko Tube or that there was a control common to both those companies. Without such evidence, the General Court rightly rejected the plea put forward at first instance.
2. Analysis
120. Without there being any need, in my view, to rule on the admissibility of the plea, it seems to me, in any event, to be unfounded.
121. First of all, Niko Tube and NTRP misread the judgment under appeal when they claim that it held that control could not exist if SEPCO and Niko Tube have the same final beneficiaries. Indeed, it should be noted that, in paragraphs 188 to 189 of the judgment under appeal, the General Court merely ascertained whether, as Niko Tube and NTRP claimed and in the light of the ‘evidence on file’, SEPCO was controlled by Niko Tube or whether they were both subject to common control by reviewing the capital structure of those companies, that factor being, as the General Court correctly pointed out in paragraph 179 of the judgment under appeal, an indicator of the existence of a single economic entity. The General Court therefore did not rule that control, in particular common control, could exist only if the two companies in question had the same ‘final beneficiaries’.
122. The view that the General Court found that the mere existence of a buying and selling relationship between an exporter and its related distribution company suffices for the margin of the latter to be treated as a commission also stems from a misinterpretation of paragraph 187 of the judgment under appeal. Apart from the fact that the passage of that paragraph of the judgment under appeal states that such a relationship has no relevance in demonstrating that SEPCO carries out functions comparable to those of an agent working on a commission basis, it relates not to the transactions carried out by SEPCO for Niko Tube, but to those carried out by that company for NTRP.
123. In fact, the reasons which led to the rejection of the argument of the applicants at first instance are based not on whether or not a buying and selling relationship existed between the producer and the distribution company, but on the absence of conclusive evidence of any control by Niko Tube over SEPCO or of common control over those two companies. In that regard it is important to note that Niko Tube and NTRP have not stated which evidence on file the General Court distorted or failed to take into consideration which could have cast doubt on its finding, set out in paragraphs 188 and 189 of the judgment under appeal, that, in essence, the fact that Niko Tube and NTRP had three common shareholders, including the parent company of NTRP, did not demonstrate that SEPCO was under the control of Niko Tube or that there was a control common to both companies, but merely established the existence of an indirect connection between those latter two companies.
124. The mere fact, noted in footnote 47 of the cross-appeal, that the General Court failed to respond to the argument that SEPCO’s representatives were present during the on-the-spot checks at the premises of Niko Tube during the investigation procedure is not likely to call into question that analysis. Indeed, as the Council rightly pointed out in its response to the cross-appeal, that fact only demonstrates that both the companies in question cooperated during the investigation, as is actually expected from two related companies, but cannot show that Niko Tube controlled SEPCO or that there was common control over those two companies.
125. Finally, Niko Tube and NTRP have also failed to indicate on what new evidence the General Court based its decision to reject, in part, their plea put forward at first instance. In that regard, Niko Tube and NTRP cannot criticise the General Court for allowing them, during the proceedings, to support their claims, even though, as I indicated in the preceding point of this Opinion, those companies remain unable, at the appeal stage, to indicate precisely what conclusive evidence in the file the General Court failed to take into account when it, in essence, confirmed the assessment of the institutions that the links between SEPCO and Niko Tube were insufficient to consider that there existed a control common to those two companies or that Niko Tube exercised control over SEPCO, a prerequisite for the existence of a single economic entity between those two related companies, which would have deprived those institutions of the possibility of making the adjustment pursuant to Article 2(10)(i) of the basic regulation.
126. Accordingly, I propose that the third ground of the cross-appeal, alleging errors of law committed in the application of Article 2(10)(i) of the basic regulation in respect of transactions carried out by SEPCO concerning pipes produced by Niko Tube, should be rejected.
C – The grounds of the main appeals alleging errors of law in the finding of an infringement of the applicants’ defence rights at first instance in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation
1. Arguments of the parties
127. The Council and the Commission identify three errors of law vitiating the General Court’s finding which led it to rule that the rights of defence of Niko Tube and NTRP, in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation, had been infringed.
128. First, those institutions consider that the General Court, in paragraph 201 of the judgment under appeal, interpreted too strictly the disclosure requirements placed on them. In particular, they consider that it is disproportionate to require the Commission in all cases to inform the exporter not only of the legal basis used to make an adjustment but also the reasons that led to that adjustment. However, by failing to check, in the present case, whether a simple communication of the legal basis for the adjustment was sufficient for the purpose of the actual exercise of the rights of defence of the companies in question, the General Court erred in law. According to the Commission, the General Court confused the obligation to state full reasons which is placed on the institutions when adopting the act in question with the obligation to communicate, during the administrative or investigation procedure, sufficient information to allow operators to exercise their rights of defence. The Commission adds that the content of the letter of 4 May 2006 from the applicants at first instance, briefly referred to in paragraph 204 of the judgment under appeal, shows that the latter had fully understood the reasons why the Commission intended to make the adjustment at issue.
129. Secondly, the Council criticises the General Court for not having properly examined, in paragraph 209 of the judgment under appeal, whether, following the late communication of the three factors listed in the fax from the Commission of 26 June 2006, Niko Tube and NTRP had actually been deprived of the opportunity to put forward arguments or make observations which could have caused the administrative procedure to have a different result. According to the Council, the General Court should have examined whether Niko Tube and NTRP had been deprived of the opportunity to present new arguments on account of the late communication of the fax of 26 June 2006 and which they actually put forward before the General Court. If the General Court had properly applied that criterion, it would have found that the arguments relied on before it were, in essence, identical to those presented in the procedure before the Commission prior to receipt of the fax of 26 June 2006.
130. Thirdly, in so far as paragraphs 185 to 188 of the judgment under appeal are vitiated by several errors of law on the part of the General Court, the Council argues that the General Court also wrongly upheld, in paragraph 211 of that judgment, the plea claiming infringement of the rights of defence of Niko Tube and NTRP, in so far as it concerned the adjustment made pursuant to Article 2(10)(i) of the basic regulation. It adds that, in any event, the General Court committed an error of logic concerning Niko Tube, since the absence of an infringement of the rights of defence of that company could not have led to a different result than that which the General Court confirmed in paragraph 189 of the judgment under appeal. More generally, the Commission considers that the General Court could not, in paragraph 209 of the judgment under appeal, merely refer to its finding as to the substance to support the conclusion that the applicants at first instance had established that their rights of defence had been disregarded.
131. Niko Tube and NTRP ask the Court to reject the grounds put forward by the Council and Commission.
132. They submit, first of all, that the General Court was right not to be satisfied with a simple reference to the legal basis for the adjustment at issue in order to ascertain whether the institutions had fulfilled their obligation to observe the rights of the defence. In particular, those companies point out that the actual examination carried out by the General Court fulfils the requirements laid down by the case-law and cannot be regarded as too strict. Although Niko Tube and NTRP argued, in the letter of 4 May 2006 in response to the second disclosure document sent by the Commission, that the activities of SEPCO were not comparable to those of an agent working on a commission basis, they none the less did not know whether and on what basis the Commission could classify that company as an agent. Those companies were clearly unable to respond to the specific arguments set out in the fax of 26 June 2006, which, as the General Court has already rightly ruled, constituted during the administrative stage the first statement of the reasons on which the institutions based their decision to conclude that it was necessary to make the adjustment at issue.
133. Then, according to Niko Tube and NTRP, it was also clear, as the General Court noted, that, contrary to the requirements arising from the case-law, they did not have the opportunity, before the adoption by the Commission of its proposal for the adoption of the contested regulation, effectively to make known their views on the correctness and relevance of the facts and circumstances alleged which led to the adjustment ultimately made by the institutions.
134. They also assert that the legal criterion proposed by the Council for the purpose of checking whether the procedural irregularity committed by the institutions could have had an impact on the conclusion reached by the latter, by comparing the arguments put forward by Niko Tube and NTRP before the disclosure of the statement of reasons contained in the fax of 26 June 2006 and those put forward after that disclosure, disregards the limited level of review exercised by the General Court over evidence. The General Court was right merely to establish that the administrative procedure could have led to another result if the applicants at first instance had had the opportunity in the course of that procedure to submit observations on the reasons which led to the adjustment.
135. Finally, with regard to the Council’s argument based on the alleged inconsistency affecting the General Court’s reasoning relating to the infringement of the rights of defence of Niko Tube, the latter and NTRP argue that it is not because the General Court concluded in the proceedings that there was no evidence that SEPCO was controlled by Niko Tube that the rights of the defence of the latter were infringed. Those companies take the view that, if Niko Tube had been informed in good time of the reasons for the adjustment at issue, it could have focussed its arguments on those reasons during the administrative procedure and influenced its result.
2. Analysis
136. As a preliminary point, I would like to point out, as the General Court pointed out in paragraph 64 of the judgment under appeal to which it referred in paragraph 201 of that judgment, that Article 20 of the basic regulation grants, inter alia, to complainants, importers and exporters and their representative associations, and to representatives of the exporting country the right to request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures.
137. It is also clear from the case-law referred to by the General Court that the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury. (26)
138. I note that, in paragraph 203 of the judgment under appeal, the General Court pointed out, and the Council and the Commission did not dispute, that in the second disclosure document, dated 24 April 2006, the Commission had informed Niko Tube and NTRP that, concerning sales towards the Community in which SEPCO was an intermediary, the adjustment made had in fact been carried out pursuant to Article 2(10)(i) of the basic regulation, and not pursuant to Article 2(9) thereof, as had been erroneously stated in the first disclosure document. The General Court also noted that although the Commission had stated in that document that the amount of the deduction made remained unchanged, the Commission did not supply any justification as to why Article 2(10)(i) of the basic regulation was applicable in this case.
139. Moreover, neither the Council nor the Commission challenge the General Court’s ruling in paragraph 201 of the judgment under appeal that information concerning the adjustment and the reasons why it was made was essential, since such an adjustment directly affected the level of the anti-dumping duty.
140. Accordingly, the institutions are, in my opinion, incorrect to complain that the General Court has, in essence, required the Commission to inform Niko Tube and NTRP during the administrative procedure not only of the fact that that institution considered that an adjustment should be made pursuant to Article 2(10)(i) of the basic regulation, but also of the reasons justifying such an adjustment, that is to say, in particular, the circumstances and evidence put forward by the Commission to support its assessment.
141. Those circumstances and that evidence having been held to be essential, they should therefore have been communicated at a time when the applicants at first instance could still effectively make known their views, in particular, on their relevance, before the adoption of the contested regulation. However, as the General Court found, it was only in its fax of 26 June 2006, that is on the eve of the adoption of the contested regulation, that the Commission communicated to the companies concerned the precise reasons which led, according to the Commission, to the adjustment made pursuant to Article 2(10)(i) of the basic regulation.
142. However, as the General Court also rightly pointed out in paragraph 208 of the judgment under appeal, the procedural irregularity committed by the Commission was not capable of constituting an infringement of the rights of defence of the applicants at first instance, justifying annulment of the contested regulation, unless the latter had established, not that the contested regulation would have had a different content but simply that such a possibility could not be totally ruled out, so that those applicants would have been better able to defend themselves in the absence of that procedural irregularity. (27) In other words, Niko Tube and NTRP had to establish that there was a possibility that the administrative procedure could have had a different result in the absence of that irregularity, such an irregularity thus having a specific adverse affect on their rights of defence. (28)
143. Without calling into question that case-law, the Commission considers that the General Court did not specifically determine, having regard to the arguments put forward before it, which evidence the applicants at first instance were prevented from communicating on account of the delay in sending the fax of 26 June 2006.
144. I consider that that criticism must be rejected.
145. In that regard, I would observe that, in paragraph 209 of the judgment under appeal, the General Court stated, with regard to the three factors on which the Commission based its reasoning in concluding that SEPCO carried out functions comparable to those of an agent working on a commission basis, that ‘[i]t has been shown in paragraphs 185 to 188 [of the judgment under appeal], on the basis of the arguments put forward by the applicants during the procedure before the Court of First Instance, that those three factors could not be regarded as sufficient evidence that, first, SEPCO carries out functions comparable to those of an agent working on a commission basis, and, second, that SEPCO and NTRP do not constitute a single economic entity. Therefore, it must be concluded that the applicants have established that an earlier communication of the factors contained in the fax of 26 June 2006 would have enabled them to make that same demonstration before the adoption of the contested regulation and, by so doing, support the assertion that the Commission did not have any tangible evidence allowing it to proceed with the adjustment at issue’. (29)
146. As evidenced by that paragraph of the judgment under appeal, which refers to the substantive judicial review carried out in paragraphs 185 to 188 of that judgment, where, as I have already emphasised, the arguments and evidence put forward in the course of the proceedings are referred to on several occasions, the General Court actually based its reasoning, at least in part, on the evidence brought before it by the applicants at first instance to determine whether the procedural irregularity attributed to the Commission in fact adversely affected their right to express their views during the administrative procedure.
147. However, I consider that the General Court vitiated its judgment, in particular paragraph 209 read in conjunction with paragraphs 188 to 190, by contradictory reasons and an inadequate statement of reasons as regards the finding that Niko Tube’s rights of defence were infringed.
148. Indeed, the General Court cannot, in my view, reject the merits of the plea of the applicants at first instance regarding the adjustment of the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko tube, by taking into account in particular the arguments presented in the course of the proceedings by the applicants at first instance and, at the same time, consider that those arguments could, if they had been put forward in the context of the administrative procedure in the absence of the Commission’s procedural irregularity, have led to a result other than that at which the institutions arrived.
149. In any event, in the light of the rejection on the merits of the limb of the plea of the applicants at first instance put forward in support of annulment of the contested regulation in so far as it related to the adjustment to the export priced charged by SEPCO, in the context of the transactions concerning pipes manufactured by Niko Tube, the General Court could not, in assessing the infringement of the rights of defence of the latter company, merely refer to substantive pleas not specifically concerning Niko Tube. The General Court instead had to explain why, in spite of the rejection of that limb, the arguments put forward before it by the applicants at first instance could, had they been communicated during the administrative procedure, have caused the administrative procedure to have a different result than that which the institutions reached. By failing to explain those reasons, the General Court has, in my view, given inadequate reasons for its conclusion, set out in paragraph 209 of the judgment under appeal, that, in essence, the applicants at first instance had established that an earlier communication of the factors contained in the fax of 26 June 2006 would have allowed them to substantiate their claim, before the adoption of the contested regulation, that the Commission had no tangible evidence to enable it to make the adjustment at issue in so far as it concerned Niko Tube.
150. That finding does not seem to me to be invalidated by the consideration that some of the arguments set out in paragraphs 185 and 186 of the judgment under appeal relate both to NTRP and to Niko Tube.
151. Indeed, in so far as, implicitly but necessarily, the General Court did not consider, as regards its finding as to the merits of the plea of the applicants at first instance relating to the adjustment at issue, that those arguments could, in themselves, prevail over the upholding of that plea and therefore the annulment of the contested regulation, in so far as that adjustment related to export sales made by SEPCO of pipes manufactured by Niko Tube, I do not see how, and without specific reasons being given by the General Court, the fact that those arguments could have been relied on during the administrative procedure could in practice have provided the applicants at first instance with the opportunity of ensuring that the administrative procedure had a different result.
152. In that regard, and as already implicitly follows from the assessment set out in point 146 above, NTRP and Niko Tube are wrong, in my view, to claim that the General Court, in the context of ascertaining whether the rights of defence of those companies have been infringed, cannot, without going beyond the scope of its marginal review, consider the new arguments which they have put forward before it.
153. In the same way as any argument in support of an action for annulment, it is incumbent on the applicant to adduce evidence of a claim alleging infringement of his procedural rights. However, since the case-law requires that a specific effect on the rights of the defence must be established for it to be possible to uphold a plea on that ground and, accordingly, to annul an act of the European Union, it is for the applicant who relies on such a plea for annulment directed against the legality of such an act to state in sufficient detail the arguments which he would have put forward in the absence of the alleged procedural irregularity and which are different from those already presented during the administrative procedure before the alleged irregularity was committed. Only by carrying out such an examination can the General Court properly determine whether the procedural irregularity at issue in fact adversely affected the applicant’s rights of defence. (30) That examination in no way exceeds the scope of the review carried out by the EU Courts. On the contrary, to my mind it forms part of the complete examination of a possible infringement, by the EU institutions, of the fundamental principle of EU law of respect for the rights of the defence in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person. (31)
154. The same considerations justify the rejection of the Commission’s generic argument that the General Court could not, in paragraph 209 of the judgment under appeal, refer to its arguments concerning the examination as to the merits of the adjustment at issue. In so far as that criticism relates to NTRP, the reference made in paragraph 209 of the judgment under appeal had no other purpose than to show that, if NTRP had had the opportunity during the administrative procedure to communicate the evidence that it adduced during the proceedings before the General Court, referred to in paragraphs 185 to 187 of the judgment under appeal, it would have been better placed to ensure the exercise of its rights of defence.
155. In the light of those considerations, I propose that the appeal brought by the Council should be upheld in part and that the judgment of the General Court should be set aside to the extent that it upheld the sixth plea of the applicants at first instance, alleging infringement of Niko Tube’s rights of defence, in so far as it concerned the adjustment made to the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko Tube, pursuant to Article 2(10)(i) of the basic regulation.
156. However, since the main appeal brought by the Commission against the judgment under appeal does not rely on the same ground as that put forward by the Council, which I propose should be upheld, I suggest that the Commission’s appeal should be dismissed in its entirety.
157. It is therefore now necessary to consider the two grounds in support of the cross-appeal of Niko Tube and NTRP relating to the findings of the General Court other than those relating to the adjustment made pursuant to Article 2(10)(i) of the basic regulation.
D – The first two grounds of the cross-appeal brought by Niko Tube and NTRP
158. Apart from the third ground already examined, in their cross-appeal Niko Tube and NTRP raise two other pleas alleging errors of law committed by the General Court in its examination of, respectively, the calculation of normal value and the determination of the injury caused to the EU industry.
1. The first ground of the cross-appeal, alleging errors of law which allegedly vitiated the General Court’s examination of the calculation of normal value
159. Before examining this ground of the cross-appeal, which is divided into five limbs, it seems to me to be useful to bear in mind the essential background to the dispute relating to the exclusion of atomic pipes falling under PCN KE4 forming the subject-matter of this plea.
a) Essential background to the dispute concerning the exclusion of atomic pipes falling under PCN KE4
160. In the course of its investigation, the Commission provided a definition of the product concerned (seamless pipes and tubes) explained in the questionnaire sent to interested parties. In that questionnaire, it also state that, for the purposes of making a fair comparison of prices of the product concerned, it had decided to use a classification system for the product called ‘PCN’, consisting of a six-symbol code (for example, PCN JB21YN), based, inter alia, on the customs classification and on the specific physical and technical properties (diameter, thickness) of the seamless pipes and tubes concerned. The wording of that questionnaire emphasised the fact that interested parties should use the product control numbers throughout their reply in a rigorously accurate and consistent manner.
161. In its June 2005 reply to the questionnaire, SPIG provided, transaction by transaction, a detailed list of its sales carried out in Ukraine and a list of its suppliers. However, SPIG did not use the six-symbol system recommended by the Commission in its questionnaire, but a simplified system of three symbols. The list of sales sent by SPIG included six transactions involving the KE4 code. NTRP appeared on the list as the sole supplier of pipes falling under PCN KE4. The Commission relied on that list, checked on the spot, to calculate the normal value.
162. In their correspondence with the Commission following the first disclosure document, Niko Tube and NTRP argued that pipes falling under PCN KE4 should be excluded from the calculation because they did not relate to the product concerned or, in any event, had not been manufactured by them.
163. In the second disclosure document, adopted on 24 April 2006, the Commission rejected the request to exclude products falling under PCN KE4 from the calculation of normal value. That document stated that the Commission had taken note of the comments regarding national sales classified under PCN KE4 but that it could not check the new information that Niko Tube and NTRP had provided.
164. Those companies reiterated their request for exclusion in their reply, dated 4 May 2006, to the second disclosure document. In that reply, it was stated that the Interpipe Group manufactured none of the pipes falling under PCN KE4 or, in particular, the 63.1 tonnes of seamless pipes and tubes falling under technical standard TU 14-3P-197-2001. That reply also stated that it was apparent from the various lists of sales sent to the Commission that, for those seamless tubes and pipes, the Interpipe Group acted only as a distributor and that the pipes classified under PCN KE4 were manufactured only by NTRP.
165. The Commission again rejected the request for exclusion in its fax of 26 June 2006, on the ground, inter alia, that the data relating to those pipes could not be regarded as providing a sufficient level of certainty, in the absence of a new on-the-spot check, considered too burdensome to organise at an advanced stage of the administrative procedure.
166. In their action for annulment of the contested regulation, Niko Tube and NTRP argued that the institutions had committed a manifest error of assessment by including in the calculation of normal value, and therefore the dumping margin, data on pipes falling under PCN KE4 and the technical standard TU 14-3P-197-2001, and that they had infringed the principle of non-discrimination, the rights of the defence and the obligation to state reasons.
167. All those pleas in law were rejected by the General Court.
168. As regards the examination of the manifest error of assessment complained of by the applicants at first instance, which also included a breach of the duty of diligence, the General Court checked whether the information submitted by the applicants at first instance to the Commission during the investigation was sufficient for it to be concluded that they did not produce the atomic tubes falling under PCN KE4, with the result that the Commission failed to examine, with care and impartiality, all the relevant aspects of the case and made a manifest error of assessment by holding that those aspects had to form the subject-matter of a fresh on-the-spot check at the premises of the applicants at first instance.
169. As part of that examination, the General Court found, first of all, in paragraph 45 of the judgment under appeal, that the applicants at first instance had never entered the norm TU 14-3P-197-2001 in their list of national and export sales, which was an indication that they had not sold those atomic pipes, even to SPIG. Moreover, the General Court noted that the lists of production costs of the applicants at first instance showed that the products mentioned in those lists were not manufactured pursuant to that norm.
170. However, the General Court also noted that SPIG’s list of sales on the national market referred to six transactions concerning pipes falling within PCN KE4 and manufactured pursuant to the above technical norm. In paragraph 48 of the judgment under appeal, the General Court added that the list of suppliers and purchases of SPIG mentioned a single supplier for pipes falling within PCN KE4, namely NTRP. However, that list should show only suppliers whose products had been resold in the European Union. In so far as the evidence on file confirmed that the pipes falling under code PCN KE4 and the technical norm TU 14-3P-197-2001 had been resold on the Ukrainian market and that all the pipes falling under that code, but not that technical norm, produced by NTRP had been resold, by SPIG, on the Community market, the General Court inferred that SPIG did not commit any error by making no mention, in its list of suppliers and purchases, of a supplier other than NTRP for pipes falling under PCN KE4.
171. However, the General Court noted, in paragraph 49 of the judgment under appeal, that the fact, first, that SPIG’s list of national sales mentioned transactions concerning pipes falling within PCN KE4 and technical norm TU 14-3P-197-2001 and, secondly, that the list of suppliers and purchases of SPIG referred only to a single supplier for pipes falling under PCN KE4 may have been a source of confusion for the Commission officials charged with the investigation. It therefore inferred, in paragraphs 50 and 51 of the judgment under appeal, that at the conclusion of a diligent assessment of the questionnaire replies sent by the applicants at first instance and SPIG, their affiliated sales company, the Commission had contradictory information, or, at the very least, information the validity of which could be called into question, and that the applicants at first instance had not sought to dissipate the Commission’s doubt in the face of those contradictions. In particular, the General Court held that it was for the applicants at first instance to adduce proof that the six transactions in question concerned purchases by SPIG of pipes falling within PCN KE4 and technical norm TU 14-3P-197-2001 from an independent supplier, which they had failed to do. It concluded that the Commission had complied with its obligation to examine, with care and impartiality, all the relevant factors of the case, that the normal value had therefore been determined in a reasonable manner, in accordance with the case-law, and that the Council had not made any manifest error of assessment.
172. As regards the plea alleging an infringement of the principle of non-discrimination in that the Council agreed to exclude from calculation of the dumping margin products not manufactured by the applicants at first instance falling within certain PCN codes, but not the atomic pipes falling within PCN KE4 and technical norm TU 14-3P-197-2001, the General Court held, in paragraphs 59 and 60 of the judgment under appeal, that whereas those latter pipes were produced by NTRP, pipes falling within the other PCN codes did not appear anywhere in the lists of sales and production costs of the applicants at first instance and that, moreover, SPIG’s list of suppliers and purchases mentioned a single supplier concerning PCN KE4, namely NTRP. It therefore rejected that plea.
173. Furthermore, in paragraphs 67 to 69 of the judgment under appeal, the General Court also rejected the pleas alleging infringement of the rights of the defence and of the obligation to state reasons which were relied on by the applicants at first instance.
b) The five limbs of the first ground of the cross-appeal
174. Niko Tube and NTRP submit, first, that the General Court infringed their rights of defence by rejecting their pleas at first instance alleging a manifest error of assessment and an infringement of the principle of non-discrimination. Secondly, they argue that the General Court exceeded the limits of judicial review. Thirdly, Niko Tube and NTRP criticise the General Court for not ruling on a further plea raised at first instance. Fourth, the General Court committed, in their view, a manifest error of assessment of the duty of diligence. Finally and fifthly, it distorted the clear meaning of evidence.
c) The first two limbs, alleging, respectively, an infringement of the rights of the defence and a failure to take account of the limits of judicial review
i) Arguments of the parties
175. Although Niko Tube and NTRP acknowledge that they were in a position during the proceedings at first instance to express their views on the evidence relied on by the General Court, they claim that it infringed their rights of defence by basing its conclusions, in paragraphs 47 to 55 and 59 and 60 of the judgment under appeal, on new evidence in the case which had not been communicated to them during the administrative procedure. Such was the case with the new statement of reasons presented by the Council and the Commission to justify the wrongful exclusion of atomic pipes falling under PCN KE4 from the calculation of the dumping margin, as well as with the new facts put forward supposedly supporting that new statement of reasons, such as the relevance of SPIG’s list of suppliers and purchases, the allegation of the lack of cooperation concerning translation and the alleged lack of evidence regarding the supplier of those atomic pipes. In their second limb, Niko Tube and NTRP point out that the General Court cannot take into consideration a new statement of reasons in support of the rejection of their request for exclusion of pipes falling under PCN KE4.
176. The Council and the Commission consider that the first limb of the first ground of the cross-appeal, which is particularly confused, must be rejected. Apart from the fact that Niko Tube and NTRP do not identify the evidence on the basis of which the General Court did not grant them the right to be heard, those institutions argue that those companies confuse the rights of the defence and the obligation to state reasons. On the latter point, the Commission notes that Niko Tube and NTRP do not identify the alleged ‘new evidence’ on which the General Court relied. The alleged ‘new evidence’ was, in the Council’s view, nothing more than additional explanations to substantiate the findings set out in the second disclosure document from the Commission, dated 24 April 2006, and according to which the request for exclusion of the six transactions concerning atomic pipes falling under PCN KE4 could not be accepted because it would have required a further check of new information. In any event, the institutions are not restricted to referring to the statement of reasons for their measure and their correspondence with the parties; they could further develop their position before the General Court. The second limb of the first ground of the cross-appeal should be rejected for similar reasons. The General Court acted within the limits of its powers of review.
ii) Analysis
177. In so far as it seeks a declaration that the General Court disregarded the requirements of the rights of defence of Niko Tube and NTRP, the first limb of the first ground of the cross-appeal should, in my view, be rejected. Those companies have clearly failed to identify the elements of fact and law on which the General Court did not give them the opportunity to be heard. They also admit that they were in a position to state their views on the evidence forming the basis of the General Court’s findings set out in paragraphs 45 to 54 and 59 and 60 of the judgment under appeal.
178. In addition, and so far as this point is relevant, it should be noted that Niko Tube and NTRP do not attack, in the context of their cross-appeal, the General Court’s finding, set out in paragraph 67 of the judgment under appeal, concerning the alleged infringement of their rights of defence committed by the institutions as regards their request for exclusion of atomic pipes falling within PCN KE4.
179. Rather than for an infringement of the rights of the defence, the General Court is actually criticised for exceeding the limits of its judicial review, since it took into consideration reasons, to support the rejection of the request by Niko Tube and NTRP for exclusion of pipes falling under PCN KE4 from the calculation of the normal value, which were not stated in the administrative procedure.
180. The first limb of the first ground of the cross-appeal is therefore indissociable, in essence, from the second, specifically alleging a misuse of powers committed by the General Court.
181. As to this complaint, I consider that it must be rejected.
182. First, I consider that Niko Tube and NTRP’s claim, put forward in their cross-appeal, that the General Court relied on new facts cannot succeed. It is actually clear from the relevant paragraphs of the judgment under appeal that the General Court, in examining the pleas alleging a manifest error of assessment and an infringement of the principle of non-discrimination, merely took into consideration factors arising from the documents exchanged during the administrative procedure.
183. Then it must be observed that, in order to check, as it was asked to do by the applicants at first instance, whether the Council had committed a manifest error of assessment in rejecting their request to exclude atomic pipes falling under PCN KE4 from the calculation of normal value and from the dumping margin on the pretext that they do not manufacture them, the General Court inter alia examined the statement of reasons underlying that rejection in the light, in particular, of the factual context in which that statement of reasons was adopted. That examination is in itself untainted by an error of law. The General Court did not substitute its own reasoning for that of the institutions, but simply put the rejection of the request of the applicants at first instance back into its context, noting in particular that the list of suppliers and purchases of SPIG referred to a single supplier of pipes falling under PCN KE4, namely NTRP, which could have had an influence on the claim that the applicants at first instance did not manufacture those pipes.
184. Such a context could certainly not be unknown to the applicants at first instance, which is also shown, in particular, by the finding made in paragraph 51 of the judgment under appeal that they had sent invoices supposed to relate to the six transactions of pipes falling under PCN KE4 which were wrongly mentioned in SPIG’s sales list.
185. I therefore propose that the first two limbs of the first ground of the cross-appeal should be rejected.
d) The third limb, alleging failure to respond to a plea
i) Arguments of the parties
186. Niko Tube and NTRP claim that they argued in their reply at first instance that the explanations and claims set out in the Council’s defence were out of time and should not have been taken into consideration. The General Court took note of that plea, as shown by the report for the hearing in the case, but did not respond to it in the judgment under appeal.
187. The Council and the Commission maintain that that limb is inadmissible and, in any event, unfounded.
ii) Analysis
188. Even if the applicants at first instance raised a new plea in the course of the proceedings, alleging that the statement of reasons supporting the contested regulation was out of time, to which the General Court should have responded, it must be noted that the General Court implicitly, but necessarily, responded to that plea and rejected it by examining the reasons given by the institutions in the light of the context of which they formed part.
189. Accordingly, I propose that the third limb of the first ground of the cross-appeal should be rejected.
e) Fourth limb, alleging a manifest error of assessment of the duty of diligence
i) Arguments of the parties
190. According to Niko Tube and NTRP, the General Court misinterpreted the concept of diligence by concluding, in paragraphs 52 and 53 of the judgment under appeal, that two legitimate reasons, out of the 10 put forward by the Council in order to reject the request of the applicants at first instance to exclude pipes falling within PCN KE4 from the calculation of the normal value, were sufficient to show that the Commission had, broadly speaking, acted with the required diligence.
191. The Council and the Commission argue that, by that limb, Niko Tube and NTRP are seeking, ultimately, to call into question the findings of fact made by the General Court, which is inadmissible at the appeal stage. The Council also recalls that the principle of the duty of diligence is procedural, whereas Niko Tube and NTRP challenge the outcome of the examination of the facts carried out by the General Court and the conclusions reached by the institutions. The Council adds that Niko Tube and NTRP’s claims that most of its arguments were declared to be irrelevant or rejected by the General Court are misleading and inaccurate.
ii) Analysis
192. It is settled case-law that where EU institutions have a wide discretion, observance of guarantees conferred by the EU legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. (32)
193. In that context, as the General Court pointed out, in essence, in paragraph 41 of the judgment under appeal and without its being challenged by the parties, in the area of anti-dumping measures, where the EU Courts cannot intervene in the assessment reserved for the institutions, it is nevertheless for the EU Courts to satisfy themselves that the institutions took account of all the relevant circumstances and appraised the facts of the matter with all due diligence, so that normal value may be regarded as having been determined in a reasonable manner, in the light of the provisions of the basic regulation. (33)
194. By this limb, Niko Tube and NTRP argue essentially that the General Court could not properly find that the institutions had examined with all the required diligence the information concerning pipes falling under PCN KE4, even though it rejected or ruled as irrelevant eight of the 10 reasons on the basis of which the institutions decided to include those pipes in the calculation of the normal value and the dumping margin.
195. The question whether the General Court correctly held that the institutions had fulfilled their duty of diligence is a question of law subject to the review of the Court of Justice on appeal. (34)
196. Regardless of the fact that the General Court did not draw up a list of 10 factors, but noted, in paragraphs 33 to 37 of the judgment under appeal, the five groups of reasons that led the institutions to reject the request for exclusion of NCP KE4 pipes from the calculation of the normal value and the dumping margin, Niko Tube and NTRP’s line of argument is based, in my view, on a manifestly incorrect reading of the judgment under appeal.
197. First, with regard to paragraph 48 of the judgment under appeal, contrary to the submissions of Niko Tube and NTRP, the General Court rule as ‘unfounded’ the argument that SPIG referred only to NTRP as the sole supplier of those pipes. On the contrary, the General Court ruled that ‘SPIG … did not commit any error by making no mention … of a supplier other than NTRP’.
198. Secondly, the fact that the General Court did not rule specifically on some of the factors listed in the cross-appeal of Niko Tube and NTRP cannot be interpreted as a finding that the General Court considered those factors ‘irrelevant’. On the contrary, the General Court could certainly rule, for legitimate reasons of procedural economy, that it was not incumbent upon it, in the context of examining a plea alleging a manifest error of assessment which it was for the applicants at first instance to establish, to check all the arguments presented by the institutions in support of the form of order sought by them, provided that some of the reasons put forward were sufficient to support the form of order sought.
199. Niko Tube and NTRP themselves admit that the General Court found to be ‘legitimate concerns’ their failure to present evidence clearly establishing that the pipes in question had been bought from an independent third party and not from NTRP and the fact that, during the on-the-spot check, the Commission had not raised the issue of pipes falling under PCN KE4, since the applicants at first instance had not yet drawn up their request for the exclusion of those pipes. The fact that Niko Tube and NTRP are not convinced by the latter finding, in that they try to call it into question before the Court, is clearly not an issue falling within the jurisdiction of the Court on appeal. (35) With regard to the finding that Niko Tube and NTRP had adduced no evidence that the pipes in question had been bought from an independent third party, those companies identify, in this limb, no error of law committed by the General Court.
200. In any event, even if the General Court had ruled that some of the arguments put forward by the institutions were irrelevant, that does not mean that the institutions failed to examine carefully and impartially all the evidence which had been sent to them during the administrative procedure.
201. Therefore, I propose that the fourth limb of the first ground of the cross-appeal should be rejected.
f) The fifth limb, alleging a distortion of the clear meaning of the evidence
i) Arguments of the parties
202. In the alternative, Niko Tube and NTRP submit that the General Court distorted the clear meaning of the evidence. The General Court therefore erroneously concluded that the information presented during the administrative procedure by the applicants at first instance may have been a source of confusion for the Commission officials and that the Commission had contradictory information (paragraphs 49 and 50 of the judgment under appeal), that the Commission had showed all the required diligence (paragraph 52) and that the applicants at first instance had not sought to dissipate the Commission’s doubt (paragraph 51 of the judgment under appeal).
203. According to the Council and the Commission, the fifth limb is inadmissible and, in any event, unfounded. In particular, Niko Tube and NTRP established neither a distortion of the evidence nor an error of assessment by the General Court entailing such a distortion, and merely challenged the General Court’s findings by relying on arguments which have already been rejected by the latter.
ii) Analysis
204. As I have already stated, the appraisal of the facts does not constitute, save where evidence is distorted by the General Court, a question of law which is subject, as such, to review by the Court on appeal.
205. Moreover, according to the settled case-law, an alleged distortion of the facts or evidence must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (36)
206. In support of their first claim, Niko Tube and NTRP submit that, contrary to the General Court’s conclusion in paragraphs 49 and 50 of the judgment under appeal, their reply to the questionnaire sent by the Commission did not contain contradictory information. Moreover, the General Court acknowledged, in paragraph 46 of the judgment under appeal, that Niko Tube and NTRP did not manufacture atomic pipes. Accordingly, it was clear that those pipes could therefore have been acquired only from an entity other than NTRP.
207. That line of argument must be rejected.
208. First of all, Niko Tube and NTRP do not identify precisely what evidence the General Court distorted.
209. Next, and in any event, it is important to note that it was after examining not only Niko Tube and NTRP’s questionnaire replies but also that of their related sales company, SPIG, that the General Court found, at paragraph 50 of the judgment under appeal, that the Commission had contradictory information. However, Niko Tube and NTRP do not claim that the General Court distorted SPIG’s reply to the questionnaire sent by the Commission after which, in particular, the list of sales on the Ukrainian market referred to transactions involving pipes falling under PCN KE4 and the list relating to suppliers of that company referred to NTRP as the single supplier of such pipes, as the General Court found in paragraph 49 of the judgment under appeal. To the extent that it is possible that the information contained in that reply contradicted that set out in the replies of Niko Tube and NTRP, which the latter do not claim was distorted by the General Court, the General Court was right, in my view, to rule that, after a diligent evaluation of the questionnaire replies of the applicants at first instance and their related sales company, SPIG, the Commission had contradictory information, or, at the very least, information whose validity could be called into question.
210. The second complaint may reasonably be rejected on the same grounds.
211. By their third criticism, which relates to paragraph 51 of the judgment under appeal, Niko Tube and NTRP claim that the lack of a translation into English of the purchase invoices of SPIG was merely a pretext for ruling that the applicants at first instance had not sought to dissipate the Commission’s doubt in the face of those contradictory replies. It was, in their view, clear from those invoices, annexed to the Council’s defence lodged before the General Court, that the atomic pipes had been acquired by SPIG from an unrelated company.
212. In that regard, it should be noted that, in order to support its finding that the applicants at first instance did not seek to dissipate the Commission’s doubt, the General Court pointed out, in particular, first, that at a hearing on 24 March 2006, the applicants at first instance had supplied the Commission with several documents written in Ukrainian which were supposed to be the invoices relating to the six transactions wrongly mentioned in SPIG’s sales list and, secondly, that although a disagreement emerged between the parties at the hearing, as to whether, at that hearing, the Commission had requested a translation of those documents, it had to be held that it was the responsibility of the applicants at first instance to adduce proof of their allegations, namely that SPIG had made purchases of the pipes at issue from an independent supplier.
213. I note that Niko Tube and NTRP neither reproduced in nor annexed to their cross-appeal the relevant invoices in order to establish the alleged distortion by the General Court of those documents, but merely refer the Court to an annex to the Council’s defence lodged before the General Court which contains a copy of those documents. In the light of the case-law referred to in point 205 above, those circumstances are, in my view, sufficient to reject this complaint.
214. In any event, the General Court cannot be criticised for having distorted that evidence, even though it is undisputed that Niko Tube and NTRP never indicated precisely the parts of those documents which established, in a clear-cut way, that the pipes in question were acquired by SPIG from a company other than NTRP and without having provided a translation into an official EU language of the relevant parts of those documents. If, as Niko Tube and NTRP submit in their cross-appeal, those documents were of the importance now accorded to them by those companies for the purposes of excluding pipes falling under PCN KE4 from the calculation of normal value, it is undoubtedly for those companies to put the institutions and the General Court in a position to verify fully the authenticity and content of those documents.
215. For all those reasons, I consider that the fifth limb of the first ground of the cross-appeal should be rejected.
216. In those circumstances, I propose that this plea should be rejected in its entirety.
2. The second ground of the cross-appeal, alleging errors of law vitiating the examination by the General Court of the determination of the injury caused to the EU industry
a) Preliminary considerations
217. The second ground of the cross-appeal is concerned with the grounds of the judgment under appeal relating to ‘the consequences of the lack of replies to the Commission’s questionnaire from companies affiliated to the [EU] producers’.
218. Before the General Court, the applicants at first instance argued that, in so far as each of the five EU seamless tube and pipe producers selected in the Commission’s sample was affiliated to one or more production or sales companies which failed to lodge a separate reply to the Commission’s questionnaire, those five producers could not be regarded as having fully cooperated. Accordingly, the applicants at first instance argued that that lack of cooperation by EU producers should have led the institutions to halt the investigation and that, in any event, the alleged injury caused to the European Union by the dumping for which they were criticised was based, in particular, on a manifest error of assessment and an infringement of their rights of defence.
219. In the judgment under appeal, the General Court examined the following five pleas raised by the applicants at first instance: infringement of Article 3(2), (3) and (5) to (7) of the basic regulation; infringement of the principle of non-discrimination; infringement of Article 19(3) of the basic regulation; infringement of Article 5(4) of the basic regulation and infringement of the rights of the defence and the obligation to state reasons.
220. All those pleas were rejected by the General Court.
221. In the second ground of their cross-appeal, Niko Tube and NTRP criticise, in essence, the grounds of the judgment under appeal relating to the examination of the infringement of Article 3(2), (3) and (5) to (7) of the basic regulation (paragraphs 88 to 112 of the judgment under appeal) and of the infringement of Article 19(3) of the basic regulation (paragraphs 130 to 135 of the judgment under appeal).
222. Admittedly, in paragraph 187 of the cross-appeal, Niko Tube and NTRP also refer to an error of law committed in paragraph 141 of the judgment under appeal, in the context of the examination of the infringement of Article 5(4) of the basic regulation. However, it should be noted that the General Court put forward that argument in that paragraph of the judgment under appeal only for the sake of completeness. According to the case-law, and in view of the fact that Niko Tube and NTRP in no way criticised the General Court’s finding set out as its principal argument in paragraph 140 of the judgment under appeal, a plea directed against a ground included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and is therefore nugatory. (37)
223. As just defined, the second ground of the cross-appeal is divided into 10 limbs. Eight of those limbs are directed against paragraphs 88 to 112 of the judgment under appeal, that is to say, against the General Court’s findings under the heading ‘infringement of Article 3(2), (3) and (5) to (7) of the basic regulation.’ Two of those limbs are directed against the examination, conducted in paragraphs 130 to 135 of the judgment under appeal, of the infringement of Article 19(3) of the basic regulation.
224. I shall examine those two sets of limbs in turn.
b) The eight limbs of the second ground of the cross-appeal, alleging errors of law vitiating the examination of the alleged infringement of Article 3(2), (3) and (5) to (7) of the basic regulation
i) Essential background to the relevant aspects of the dispute and the General Court’s considerations
225. As is clear from recital 12 in the preamble to the contested regulation, on account of the large number of complainants criticising the practice of, inter alia, Niko Tube and NTRP, the Commission, pursuant to Article 17 of the basic regulation, limited its investigation to a representative sample of five EU producers supporting the complaint, established in four Member States and representing 49% of the total production of the product concerned in the European Union. The contested regulation also states, first, that the Commission sent a questionnaire to those producers, which sent replies to it, and, secondly, that the Commission carried out on-the-spot checks of information gathered by those companies. The contested regulation also includes, pursuant to Article 3(5) of the basic regulation, an evaluation of the impact of all economic factors that had a bearing on the state of the EU industry, as well as an examination of the causal link between the dumped imports and the injury suffered, in particular by assessing the effects of other external factors, pursuant to Article 3(6) and (7) of the basic regulation. Finally, in recitals 234 and 235 in the preamble to the contested regulation, it is stated that, in accordance with the lesser duty rule provided for in Article 9 of the basic regulation, definitive anti-dumping measures on imports of the product concerned are to be imposed at the level of the lowest of the dumping and the injury margins found, that is, in the present case, the dumping margin.
226. Before the General Court, the applicants at first instance claimed, in essence, that the lack of cooperation during the investigation from a dozen or so companies related to the EU producers selected in the Commission’s sample distorted the assessment of the injury suffered by the EU industry, which resulted in an infringement of Article 3(2), (3) and (5) to (7) of the basic regulation. That article actually requires, inter alia, that injury must be determined on the basis of positive evidence.
227. As I have already pointed out, the General Court rejected that plea.
228. Primarily, the latter stated, in paragraph 87 of the judgment under appeal, that neither the Council nor the Commission have any power to compel companies to participate in the investigation or to provide information, but depend on the voluntary cooperation of the companies, which means that the replies of the interested parties to the questionnaire referred to in Article 6(2) of the basic regulation are therefore essential to the operation of the anti-dumping procedure.
229. In paragraph 90 of the judgment under appeal, the General Court nevertheless pointed out that, in spite of that article, it followed from Article 18(3) of the basic regulation that information presented in a form other than that of a reply to the questionnaire or in the context of another document does not have to be ignored where the four conditions set out in that provision are satisfied. It therefore inferred that the failure, by a company related to an EU producer, to reply to the questionnaire did not necessarily imply that that producer must be regarded as having not cooperated with the investigation. Thus, the General Court points out in paragraph 92 of the judgment under appeal, that producer will not be regarded as not cooperating if the deficiencies in the production of the data have no significant impact on the running of the investigation.
230. Moving on to the examination in the present case, the General Court first of all pointed out, in paragraphs 93 and 94 of the judgment under appeal, on the one hand, that no reply to the questionnaire was submitted by 11 companies related to the EU producers included in the investigation sample and, on the other hand, that a late reply had been sent by another company related to one of those producers, a reply which the Commission had not taken account of for the purposes of determining the injury.
231. The General Court then examined whether, for each of those 12 related companies, the conditions of Article 18(3) of the basic regulation were met so as to be able to rule out the possibility that a manifest error of assessment could have vitiated the determination of the injury and the calculation of the margin of injury. After a detailed examination of the information on those related companies, which ran from paragraph 97 to paragraph 110 of the judgment under appeal, the General Court concluded, in essence, either that, with respect to some of those companies, the information had already been included in the questionnaire replies submitted by the EU producers which participated in the investigation, in particular because they were trading companies, or that the lack of replies to the questionnaire from other related companies had no significant impact on the determination of injury or, with regard to one of the related companies, that the lack of a reply to the questionnaire was explained by the fact that it was involved neither in the sale nor in the production of the product concerned.
232. Finally, as regards the calculation of the injury margin, examined in paragraph 111 of the judgment under appeal, the General Court noted that, in accordance with Article 9(4) of the basic regulation, that margin is used to determine the rate of anti-dumping duty only if the dumping margin is higher than it is. In this case, after pointing out that the rate of the anti-dumping duty imposed on the applicants at first instance was based on the dumping margin, namely 25.7%, and not on the injury margin of 57%, the General Court held that ‘[a]ssuming the injury margin was based on the transfer prices charged by the [EU] producers in relation [to the related sales companies operating on the market for the product concerned], sales to those companies represented at most 10% of the total sales of the [EU] industry. It would therefore have been necessary, as the Council points out, for the sales prices charged by those affiliated companies to have been totally disproportionate in relation to those of the other sales taken into account in the calculation of the injury margin for the latter to be brought to a level below that of the dumping margin’.
233. The General Court therefore held that the Council did not make a manifest error of assessment in holding that the fact that the companies affiliated to the EU producers selected in the sample did not submit replies to the questionnaire did not distort determination of the injury or the calculation of the injury margin and did not infringe Article 3(2), (3) and (5) to (7) of the basic regulation.
ii) Arguments of the parties
234. Niko Tube and NTRP claim, in the first and second limbs of the second ground of the cross-appeal, that the General Court erred in law by not responding directly to the plea alleging infringement of Article 3(2) of the basic regulation, but making the analysis of the latter subject to the issue of compliance with Article 18(3) of that regulation. Since the determination of the injury was not based on a significant portion of the EU industry, it was not based on positive evidence. In the second limb, Niko Tube and NTRP submit that the need to carry out an objective examination, pursuant to Article 3(2) of the basic regulation, means, first, that, contrary to what the General Court held in paragraphs 100 and 108 of the judgment under appeal, a production company related to a sampled producer is, in principle, required to cooperate in an investigation and, secondly, that the sales of the related trader, referred to in paragraph 103 of the judgment under appeal, are also taken into consideration.
235. In the third and fourth limbs of the second ground of the cross-appeal, Niko Tube and NTRP criticise the General Court for having interpreted wrongly or, at the very least, incompletely Article 18(3) of the basic regulation. First, except in its assessment of the situation of the related company examined in paragraph 102 of the judgment under appeal, the General Court did not check what was the individual impact of the lack of cooperation on the sales and production of individual producers. Moreover, it should have checked the impact on the entire production and sales of the EU industry as a whole and not of the EU producers at the origin of the complaint. The method used by the General Court did not make it possible, according to Niko Tube and NTRP, to arrive at ‘a reasonably accurate finding’ within the meaning of Article 18(3) referred to above. Secondly, the General Court systematically failed to examine the four conditions listed in that provision.
236. In the fifth, sixth and eighth limbs, Niko Tube and NTRP claim that the General Court exceeded the limits of judicial review and infringed the rights of the defence by allowing the institutions to present explanations and facts which had not been communicated during the administrative procedure. Moreover, the General Court did not give the applicants at first instance the opportunity to make observations on the facts linked to evidence produced out of time. Niko Tube and NTRP refer, in particular, to the fact, relied on in paragraph 111 of the judgment under appeal, that sales to certain related companies represented at most 10% of the total sales of the EU industry.
237. Finally, in the seventh limb, Niko Tube and NTRP claim that the General Court distorted the clear meaning of some of the evidence relied on in paragraphs 100, 102, 104, 107 and 109 of the judgment under appeal, by favouring certain figures to the detriment of other information contained in the file.
238. In their responses, the Council and the Commission propose that all of these limbs should be rejected as in part inadmissible and in part unfounded.
iii) Analysis
– The first two limbs
239. I would point out that, under Article 3(1) of the basic regulation, the term ‘injury’ is, unless otherwise specified, to be taken to mean, inter alia, material injury to the EU industry. According to paragraph 2 of that article, a determination of injury is to be based on positive evidence and is to involve an objective examination of both, first, the volume of the dumped imports and the effect of the dumped imports on prices in the EU market for like products, and, secondly, the consequent impact of those imports on the EU industry.
240. In the first two limbs of this plea, Niko Tube and NTRP claim, in essence, first, that the General Court did not properly examine the plea put forward at first instance alleging infringement of Article 3(2), (3) and (5) to (7) of the basic regulation in that it made that infringement subject to compliance with Article 18(3) of that regulation, secondly, that an objective examination of the injury cannot be carried out if it is not based on a significant proportion of the EU industry and, thirdly, that a company related to a complainant EU producer must always be required to cooperate and to provide data.
241. I suggest that those two limbs should be rejected.
242. First of all, it must be remembered that, before the General Court, the applicants at first instance alleged an infringement of Article 3(2), (3) and (5) to (7) of the basic regulation on account of the lack of total cooperation of the EU industry in the investigation which distorted the objective determination of the injury. In support of their claim, the applicants at first instance referred to the case of 11 companies related to sampled EU producers, companies which, according to Niko Tube and NTRP, had not lodged a separate reply to the questionnaire sent by the Commission or had lodged it out of time. (38)
243. Consequently, the General Court was correct, in paragraph 89 of the judgment under appeal, to confine the plea alleging infringement of Article 3(2), (3) and (5) to (7) of the basic regulation to the issue of whether, as the applicants at first instance claimed, the fact that the companies related to the sampled EU producers did not lodge a separate reply to the questionnaire implied, on the part of those producers, a lack of cooperation which distorted the analysis of the injury.
244. Then, in that context, it was, in my view, legally correct to rule, as the General Court did in paragraphs 90 to 92 of the judgment under appeal, that a lack of response or an incomplete response to the questionnaire sent by the Commission under Article 6 of the basic regulation from one of the companies related to a sampled EU producer did not imply that that producer must be regarded as not cooperating and therefore excluded from the investigation.
245. Where it is decided to sample, as in the present case with regard to the EU industry, Article 17(4) of the basic regulation provides that a new sample may be selected where there is a degree of non-cooperation by some or all of the parties selected which is likely to materially affect the outcome of the investigation.
246. The incompleteness of replies to the questionnaire sent by the Commission because of the refusal of certain companies related to a sampled EU producer to reply separately to that questionnaire cannot in itself lead to the exclusion of that producer, with the result that a new sample must be established.
247. Moreover, Article 18(3) of the basic regulation also provides that ‘[w]here the information submitted by an interested party is not ideal in all respects it should nevertheless not be disregarded, provided that any deficiencies are 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’.
248. Therefore, the General Court correctly held, in paragraph 92 of the judgment under appeal, that a sampled EU producer will not be regarded as not cooperating if the deficiencies in the production of the data have no significant impact on the running of the investigation.
249. Therefore it is only after examining those deficiencies that a possible decision to exclude an EU producer from the sample can be taken.
250. That interpretation makes it possible to preserve the effectiveness of anti-dumping measures. Indeed, those measures would be deprived of effectiveness if, whenever a production or sales company related to an EU producer selected in the sample for an investigation refused to reply separately to the Commission’s questionnaire, that producer had to be excluded from that sample, so as to require the setting up of a new sample or, a fortiori, to require the suspension of the investigation, in particular on account of the fact, rightly pointed out in paragraph 87 of the judgment under appeal, that the institutions do not have the power to compel the parties concerned to cooperate.
– The other limbs in so far as they concern related companies listed in paragraph 111 of the judgment under appeal
251. Niko Tube and NTRP also submit, in the context of the third and fourth limbs of this plea, that the General Court has incorrectly and incompletely interpreted Article 18(3) of the basic regulation.
252. I consider that these complaints and the other criticisms by Niko Tube and NTRP in this first part of the second ground of the cross-appeal need be examined only in so far as they are concerned with the related companies listed in paragraph 111 of the judgment under appeal.
253. It should be recalled that, in paragraph 111 of the judgment under appeal, the General Court pointed out that the rate of the anti-dumping duty imposed on Niko Tube and NTRP was determined on the basis of the dumping margin and not the injury margin, in accordance with the lesser-duty rule provided for in Article 9(4) of the basic regulation. (39) The General Court also held in this case that the difference between the injury margin (57%) and the dumping margin (25.7%) was such that, even assuming that the first was based on the transfer prices charged between the EU producers and the related companies which it listed [Vallourec Mannesmann Oil & Gas United Kingdom (‘VMOG United Kingdom’), Productos Tubulares and the companies affiliated to Dalmine], those sales represented at most 10% of the total sales of the EU industry, which meant that the sales prices charged by those affiliated companies would have had to be totally disproportionate in relation to the price of the sales taken into account in the calculation of the injury margin for the latter to be lower than the dumping margin used to determine the anti-dumping duty applied to Niko Tube and NTRP.
254. In my view, it is only if that analysis is vitiated by an error of law or is based on a distortion of the facts or evidence that the other complaints against the General Court’s findings relating to the determination of the injury could be relevant. Even if the General Court committed errors of law with regard to examining the determination of injury to the EU industry, those errors would lead to the setting aside of the judgment under appeal only in so far as the finding set out in paragraph 111 of that judgment was also affected by similar defects.
255. I therefore propose to examine as a priority the complaints directed against the General Court’s analysis set out in paragraph 111 of the judgment under appeal.
256. In that regard, it is important to point out that Niko Tube and NTRP invoked no error of law vitiating the reasoning of the General Court set out in paragraph 111 of the judgment under appeal.
257. Ultimately, those companies merely claim, in paragraph 189 of the cross-appeal, that the General Court’s assertion that the sales of companies related to the EU producers supporting the complaint, listed in paragraph 111 of the judgment under appeal, ‘represented at most 10% of the total sales of the [EU] industry’ cannot be linked to the evidence in the file and is based on information produced out of time by the Council and the Commission before the General Court.
258. Having regard to the powers of the Court in the context of an appeal, those complaints can therefore be summarised, in essence, as a criticism that the General Court distorted the evidence, exceeded the limits of its judicial review and infringed the rights of the defence. I shall add thereto the criticism relating to the misinterpretation of Article 18(3) of the basic regulation, alleging that the General Court did not examine, in relation to those companies, whether the four conditions of that provision were satisfied.
259. It is necessary to ascertain whether those complaints are founded.
260. In that regard, I would point out that the related production and sales companies listed by the General Court in paragraph 111 of the judgment under appeal are Productos Tubulares, the six companies affiliated to Dalmine and VMOG United Kingdom, whose respective situations were examined in paragraphs 99, 100, 104, 105, 108 and 109 of the judgment under appeal.
– The complaints concerning Productos Tubulares
261. As to the first company, and as regards the complaint alleging infringement of Article 18(3) of the basic regulation, it is apparent from paragraphs 99 and 100 of the judgment under appeal that the General Court examined whether the information was provided in good time, whether it had been checked and whether the lack of a separate reply to the questionnaire had had a significant impact on the determination of injury, that is to say whether any deficiencies could jeopardise the possibility of reaching reasonably accurate conclusions. In addition, having noted, on the one hand, that the information from that company, which had not supported the complaint, should not, in principle, be taken into consideration but, on the other hand, that the information from that company had nevertheless been communicated during the investigation, the General Court implicitly but necessarily checked whether the party had acted to the best of its ability, within the meaning of Article 18(3) of the basic regulation.
262. With regard to the distortion of evidence relating to Productos Tubulares, Niko Tube and NTRP neither indicate nor show what evidence was distorted during the examination carried out in paragraph 100 of the judgment under appeal.
263. Nor do I think it is possible to uphold the criticisms that the General Court exceeded the limits of judicial review and infringed the rights of the defence in that it took into consideration information presented out of time on which Niko Tube and NTRP had no opportunity to express their views.
264. First of all, it should be noted that Niko Tube and NTRP have not challenged, in the course of the appeal, the examination of the plea alleging infringement of the rights of the defence during the administrative procedure. As is evident specifically from paragraphs 149 to 152 of the judgment under appeal, the applicants at first instance had the opportunity properly to express their views, inter alia, on the validity of the sample, in particular with regard to support given by Productos Tubulares to the complaint, since the Commission responded to their comments, in particular in the second disclosure document.
265. Next, it is important to bear in mind that, before the General Court, the applicants at first instance claimed, in their second plea, that the Council had committed a manifest error of assessment by not excluding the producer Tubos Reunidos from the EU producers sampled for the investigation, because Tubulares Productos, a company related to that producer, had not replied separately to the questionnaire sent by the Commission. However, in those circumstances, I have difficulty understanding how the General Court can be criticised for having specifically exercised its powers of review over the issue of whether the institutions were right to consider that the lack of a questionnaire reply from Productos Tubulares had not had a significant impact on the determination of injury, in particular by ordering measures of organisation of procedure. As that examination is limited to a judicial review of the plea raised, it has, in my view, neither the object nor the effect of replacing a full investigation of the case in the context of the administrative procedure. The fact that, in exercising its judicial review, the General Court reached a conclusion which may displease Niko Tube and NTRP certainly cannot fall within the scope of the issues examined in an appeal before the Court.
266. Finally, in that context, Niko Tube and NTRP have in no way shown that they did not have a real opportunity to express their views on the documents lodged by the Commission as part of the measures of organisation of procedure conducted by the General Court, from which it appeared that Productos Tubulares’ production and sales represented less than 3% of the EU industry’s total production and sales during the investigation period.
267. The complaints against the examination of Productos Tubulares’ situation must therefore be rejected.
– The complaints regarding the six companies affiliated to Dalmine
268. With regard to the six companies affiliated to Dalmine, also referred to in paragraph 111 of the judgment under appeal, I would point out that Niko Tube and NTRP have not specifically disputed the analysis, set out in paragraph 105 of the judgment under appeal, that it was ‘apparent from the evidence on file, and particularly from the non-confidential version of Dalmine’s reply to the questionnaire – that version having been submitted on time and verified by the Commission’s services – that [the six related sales companies] are active either in trading or in retailing and distribution’ and therefore that ‘the volume of those companies’ sales was taken into account in the analysis of the injury, by means of the sales which were made to those companies by Dalmine’.
269. Moreover, it is undisputed that Niko Tube and NTRP had access to that reply and were able to comment on it during the administrative procedure.
270. In those circumstances it is necessary to reject the complaints in support of the limbs of this ground relating to those companies.
– The complaints concerning VMOG United Kingdom
271. As regards VMOG United Kingdom, as is apparent from paragraph 108 of the judgment under appeal, since that company was late in submitting its reply to the questionnaire sent by the Commission, the data contained therein could not be used in determining the injury. However, in paragraph 109 of the judgment under appeal, the General Court held that, on the basis of the reply to the questionnaire, submitted out of time, the Council had been able to determine that the sales of that company represented less than 3% of the total sales volume of the EU producers behind the complaint. The General Court inferred that the failure to take into consideration those sales could not have had a decisive impact on the determination of the injury and therefore did not justify the exclusion of the EU producer to which VMOG United Kingdom was affiliated from the definition of the EU industry.
272. First of all, it follows from paragraphs 108 and 109 of the judgment under appeal that the General Court checked whether the conditions of Article 18(3) of the basic regulation had been complied with. In particular, with regard to the last condition, having noted, first, that the information from VMOG United Kingdom, which had not supported the complaint, should not, in principle, be taken into consideration, but, secondly, that the information from that company had nevertheless been sent and examined during the investigation in order to determine whether or not the analysis of the injury could be affected, the General Court implicitly but necessarily checked whether the party had acted to the best of its ability, within the meaning of Article 18(3) of the basic regulation.
273. Then, as regards the distortion of evidence relating to that company, it should be noted that Niko Tube and NTRP merely claim, in paragraphs 189 and 194 of the cross-appeal, that the market share attributed by the General Court to VMOG United Kingdom relates to ‘the total volume of the EU producers at the origin of the complaint’ and not, as the Council and the Commission had argued, ‘of the EU industry’.
274. Such a claim is based on a misinterpretation of the judgment under appeal and of the meaning of the two expressions. It is clear from the definition of the EU industry adopted in the contested regulation, which the judgment under appeal could not have overlooked, that that definition is indissociable from the expression ‘EU producers at the origin of the complaint’.
275. Finally, reasons similar to those set out in paragraphs 265 and 266 above lead me to rule out the possibility that the General Court infringed the limits of judicial review or the rights of the defence.
276. I therefore suggest that the complaints made against the examination carried out by the General Court concerning the information relating to VMOG United Kingdom should also be rejected.
277. In those circumstances, the reasoning and finding set out in paragraph 111 of the judgment under appeal are vitiated neither by an error of law nor by a distortion of the evidence. There is therefore no need to examine the limbs of this ground relating to the other paragraphs of the grounds of the judgment under appeal, since even if those limbs are well founded, they cannot, in any event, result in the setting aside of that judgment.
278. In those circumstances I propose that all the limbs of the second ground of the cross-appeal alleging errors of law vitiating the examination of the alleged infringement of Article 3(2), (3) and (5) to (7) of the basic regulation should be rejected as partly unfounded and partly irrelevant.
c) The two limbs of the second ground of the cross-appeal alleging errors of law vitiating the examination of the alleged infringement of Article 19(3) of the basic regulation
i) Arguments of the parties
279. In the first limb relating to errors of law vitiating the examination of the alleged infringement of Article 19(3) of the basic regulation, Niko Tube and NTRP submit that the General Court infringed the rights of the defence in paragraphs 132 and 135 of the judgment under appeal.
280. In the second limb, those companies complain, first, that the General Court did not check, in paragraph 132 of the judgment under appeal, whether the non-confidential summaries of the confidential information provided by certain companies related to sampled EU producers had given the applicants at first instance, during the administrative procedure, sufficient knowledge of the essential content of the relevant information. Secondly, they complain that the General Court did not apply the conditions of Article 19(3) of the basic regulation, but merely examined, in paragraphs 133 to 135 of the judgment under appeal, whether the absence of a non-confidential summary of the confidential information concerning certain companies related to sampled EU producers had infringed the rights of defence of the applicants at first instance. Thirdly and finally, Niko Tube and NTRP submit that the General Court could not conclude that disclosure to them of non-confidential versions of confidential data would have had no likelihood of causing the administrative procedure to have a different result.
281. The Council and the Commission propose that these limbs should be rejected.
ii) Analysis
282. The most important point to bear in mind is that, under Article 6(7) of the basic regulation, exporters and the other interested parties listed in that provision may, upon written request, inspect all information made available by any party to an investigation, with the exception of internal documents prepared by the authorities of the EU or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19 of the basic regulation, and that it is used in the investigation.
283. Under Article 19(1) of the basic regulation, any information which is by nature confidential or which is provided on a confidential basis by parties to an investigation must, if good cause is shown, be treated as such by the authorities. Article 19(2) provides, in particular, that interested parties providing confidential information are to be required to furnish non-confidential summaries thereof. According to Article 19(3), if it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.
284. Before the General Court, Niko Tube and NTRP argued that under Article 19(3) of the basic regulation, the institutions could not reasonably take into account confidential information when it was not contained in a non-confidential summary.
285. In that regard, the General Court held in paragraph 130 of the judgment under appeal that the wording of Article 19(3) of the basic regulation gives the Commission only the possibility of disregarding confidential information of which no non-confidential summary is available.
286. It should be noted that Niko Tube and NTRP do not criticise that interpretation, which, moreover, I consider to be correct. So far as this point is relevant, it is important to note that the evaluation of evidence in the field of anti-dumping measures is characterised by the fact that the documents examined often contain business secrets or other information that cannot be disclosed, or the disclosure of which is subject to significant restrictions. Accordingly, as demonstrated by Articles 6(7) and 19 of the basic regulation, documents containing evidence must not automatically be excluded as evidence when certain information must remain confidential. (40)
287. In contrast, Niko Tube and NTRP first criticise the General Court for not checking in relation to the list of documents set out in paragraph 132 of the judgment under appeal, and of which, the General Court noted, non-confidential summaries had been prepared, whether those summaries would have allowed them to have sufficient knowledge of the essential content of the documents in question.
288. As the Commission argued in its response to the cross-appeal, that line of argument cannot be linked to the plea raised at first instance, which related simply to the inadmissibility of those documents as evidence on the ground that they contained confidential information of which no confidential summary had been prepared. In those circumstances, it does not fall to the General Court, after finding that non-confidential summaries were prepared in accordance with Article 19(2) of the basic regulation, to check the content of each of those documents.
289. Secondly, Niko Tube and NTRP claim, in essence, that the General Court did not examine the real complaint, alleging infringement of Article 19(3) of the basic regulation, but merely assessed whether the use by the Commission of the confidential information listed in paragraph 133 of the judgment under appeal, in the absence of non-confidential versions of that information, constituted an infringement of the rights of defence of the applicants at first instance.
290. That argument is not persuasive.
291. It is important to bear in mind that Article 19(3) of the basic regulation governs the relationship between an interested party who supplies confidential information without wishing to authorise its disclosure even in generalised or summary form and the institution responsible for the anti-dumping investigation, which may decide that the information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.
292. Once the institution responsible for the investigation has decided that the information in question can be used, which, as I have already indicated, the basic regulation allows it to do, the question which remains, as regards the other interested parties involved in the investigation, is whether such use is capable of affecting their rights of defence.
293. In those circumstances, although it is true that the General Court did not formally reclassify the plea raised by the applicants at first instance alleging infringement of Article 19(3) of the basic regulation, Niko Tube and NTRP none the less cannot criticise the General Court for having checked, in paragraphs 133 to 135 of the judgment under appeal, whether the Commission’s use of the confidential information listed in paragraph 133 of the judgment under appeal, in the absence of the existence of non-confidential versions, resulted in an infringement of the rights of defence of the applicants at first instance. That was, to my mind, the actual purpose of the substantive examination that the General Court had to carry out in the context of the plea raised at first instance.
294. Thirdly, Niko Tube and NTRP claim that the General Court could not conclude, as it did in paragraph 135 of the judgment under appeal, that there was no likelihood that disclosure to the applicants at first instance of the non-confidential versions of the VMOG United Kingdom questionnaire reply, the presampling questionnaire reply of Productos Tubulares and the email from Dalmine of 24 May 2006 concerning the company Tenaris West Africa could have caused the administrative procedure to have a different result.
295. In that regard, it must be borne in mind, first of all, that after identifying the abovementioned documents, of which no non-confidential summary was prepared, the General Court stated, in paragraph 134 of the judgment under appeal, that, in accordance with the case-law, infringement of the right of access to the investigation file could result in total or partial annulment of the contested regulation only if there was a chance, which may be slight, that disclosure of the documents in question might have caused the administrative procedure to have a different result if the undertaking concerned had been able to rely on them during that procedure.
296. That finding is untainted by any error of law. Moreover, it is not criticised by Niko Tube and NTRP.
297. Next, applying to the present case the examination referred to, the General Court held, in paragraph 135 of the judgment under appeal, that ‘[i]n this case, the applicants [at first instance] argue that they needed those documents in order to prove that the lack of questionnaire replies from VMOG United Kingdom, [Tubos Reunidos] (41) and Tenaris West Africa distorted the analysis of the injury. However, this Court has held in paragraphs 101, 108 and 107 respectively that the Council did not make any manifest error of assessment by holding that non-submission of questionnaire replies from Productos Tubulares, VMOG United Kingdom and Tenaris West Africa, or failure to take those replies into account, had no impact on the determination of the injury. Therefore, there was no likelihood that disclosure to the applicants [at first instance] of the non-confidential versions of the VMOG United Kingdom questionnaire reply, the presampling questionnaire reply of Productos Tubulares and the email of 24 May 2006 could have caused the administrative procedure to have a different result’.
298. In challenging that conclusion, Niko Tube and NTRP merely submit in their cross-appeal, although it is undisputed that they could have acquainted themselves with the documents in question in the course of the proceedings before the General Court, that it is very likely that with the submission in good time of the relevant information it would have been possible to put forward precise arguments and especially evidence capable of changing the result and that it is only by having that information available that they could have chosen whether or not to express a view.
299. Those general considerations do not fulfil the requirement of establishing the existence of an error of law which vitiated the reasoning of the General Court. Nor do they contain the slightest indication that the latter distorted the evidence, with the result that it was clear that communication to the applicants at first instance of the documents in question during the administrative procedure would have been likely to cause that procedure to have a different result from that which it reached.
300. Fourthly, it is necessary, in my view, to reject the limb according to which the General Court infringed the rights of defence of Niko Tube and NTRP in paragraphs 132 and 135 of the judgment under appeal. On the one hand, the first paragraph merely lists the confidential documents for which a non-confidential version was prepared and those for which no such version was drawn up. On the other hand, as I have already stated and as Niko Tube and NTRP have acknowledged in paragraphs 194 and 209 of their cross-appeal, those companies were able, in the course of the proceedings before the General Court, to submit observations on the documents referred to in paragraph 135 of the judgment under appeal.
301. For all those reasons, I propose that the two limbs of the second ground of the cross-appeal alleging errors of law vitiating the examination of the alleged infringement of Article 19(3) of the basic regulation should be rejected.
302. Accordingly, I propose that the cross-appeal should be dismissed in its entirety.
V – The action before the General Court
303. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, if the judgment of the General Court is set aside, give judgment in the matter, where the state of the proceedings so permits.
304. In my view, that is the case here.
305. As I propose in paragraph 155 above, the judgment under appeal should be set aside to the extent that it upheld the sixth plea of the applicants at first instance, alleging infringement of Niko Tube’s rights of defence, in so far as it concerned the adjustment made to the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko Tube, pursuant to Article 2(10)(i) of the basic regulation.
306. As I have already highlighted, the General Court has, in my view, vitiated its judgment by contradictory reasons, in that, in paragraph 209 of the judgment under appeal, it has, in essence, held that Niko tube had established that that company could have relied on arguments which could have caused the administrative procedure to have a different result than that at which it arrived, whereas previously, in paragraph 188 of that judgment, the General Court had established that the Council had not committed a manifest error of assessment in making the adjustment at issue concerning Niko Tube in the light of those arguments.
307. In that regard, it is sufficient to note that Niko Tube has failed to demonstrate that, had they been communicated in the course of administrative procedure, the arguments presented at first instance would have been capable of resulting in the institutions’ not making the adjustment made pursuant to Article 2(10)(i) of the basic regulation.
308. In those circumstances, it is necessary, in my opinion, to reject the sixth ground of the action in so far as it concerns Niko Tube.
309. Accordingly, and having regard to all the foregoing considerations, I propose that the action should be dismissed in so far as it concerns Niko Tube.
VI – Costs
310. Under Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
311. Under Article 69(2) of those rules, applicable to appeal proceedings pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 69(3) of those rules, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs.
312. In the light of the analysis which I have set out, I consider that, with regard to the Council’s appeal (C-191/09), which should be partially upheld with respect to Niko Tube but dismissed as to the remainder, a fair assessment of the circumstances of this case might lead to the following allocation of the costs of the two sets of proceedings: order Niko Tube to pay one-third of the costs incurred by the Council in the course of both sets of proceedings and the Council to pay one quarter of the costs incurred by NTRP.
313. In Case C-200/09, since the Commission has been unsuccessful but Niko Tube and NTRP have also been unsuccessful in their cross-appeal, I suggest that each party should bear its own costs. Since the Commission intervened before the General Court, it should also bear its own costs at first instance.
VII – Conclusion
314. Having regard to the foregoing considerations, I propose that the Court should:
(1) set aside the judgment of the Court of First Instance of the European Communities of 10 March 2009 in Case T-249/06 Interpipe Niko Tube and Interpipe NTRP v Council in so far as it annulled, with regard to Interpipe Niko Tube, Article 1 of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine;
(2) dismiss the action in so far as it concerns Interpipe Niko Tube;
(3) dismiss the main appeal of the Council of European Union as to the remainder;
(4) dismiss the main appeal of the European Commission;
(5) dismiss the cross-appeal of Interpipe Niko Tube and Interpipe NTRP;
(6) order the Council of the European Union to bear two-thirds of its own costs and to pay one quarter of the costs incurred by Interpipe NTRP in both sets of proceedings;
(7) order Interpipe Niko Tube to pay one-third of the costs of the Council of the European Union and its own costs in both sets of proceedings;
(8) order the European Commission to bear its own costs in both sets of proceedings.
1 – Original language: French.
2 – ECR [2009] II-383.
3 – OJ 2006 L 175, p. 4.
4 – OJ 1996 L 56, p. 1.
5 – OJ 2004 L 77, p. 12.
6 – See Case C-171/87 Canon v Council [1992] ECR I-1237, paragraphs 9 to 13.
7 – Ibid.
8 – See in that regard, Joined Cases 260/85 and 106/86 TEC and Others v Council [1988] ECR 5855, paragraph 30.
9 – C-178/87 [1992] ECR I-1577.
10 – Ibid., paragraph 12.
11 – Ibid., paragraph 13.
12 – I have already stated that those three factors are: (1) that the applicants at first instance carried out direct sales of the product concerned in the Community; (2) SPIG, the connected sales company in Ukraine, intervened as a sales agent for sales of Niko Tube and NTRP to SEPCO; and (3) SEPCO’s links with Niko Tube and NTRP were insufficient and did not support the conclusion that it was under their control, or that there was a control common to SEPCO and to Niko Tube and NTRP.
13 – In paragraph 179 of the judgment under appeal the General Court points out that the case-law also shows that a single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company for distributing its products which it controls economically (see, to that effect, Canon v Council, paragraph 9). Moreover, the capital structure is a relevant indicator of the existence of a single economic entity (see, to that effect, Opinion of Advocate General Lenz in Case C-75/92 Gao Yao v Council [1994] ECR I-3141, point 33). It has also been held that a single economic entity may exist where the producer assumes part of the sales functions complementary to those of the distribution company for its products (Case C-104/90 Matsushita Electric Industrial [1993] ECR I-4981, paragraph 14).
14 – Case T-88/98 [2002] ECR II-4897, paragraph 96.
15 – Although that wording is identical to that used in Article 2(10) of the immediately preceding basic regulation (Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community, OJ 1994 L 349, p. 1), it none the less differs from that of Article 2(9)(b) of the preceding basic regulation (Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1) which placed on the ‘interested party’ the burden of proving that its claim for the application of an adjustment was justified.
16 – See, under the previous anti-dumping regulations, Joined Cases C-320/86 and C-188/87 Stanko France v Commission and Council [1990] ECR I-3013, paragraph 48 and case-law cited.
17 – See, in particular the distinction between the obligation to state reasons, which is an essential procedural requirement, and the question whether the reasons given are correct, which goes to the substantive legality of the contested measure, Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35.
18 – See, to that effect, Case T-71/96 Berlingieri Vinzek v Commission [1997] ECRSC I-A-339 and ECR II-921, paragraph 79; Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraphs 57 and 58; judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 59, and Case T-387/08 Evropaïki Dynamiki v Commission [2010] ECR II-0000, paragraph 37.
19 – In footnote 15 of its appeal the Council refers to paragraphs 105, 106 and 112 to 119 of its defence at first instance and to paragraphs 49 to 55 of its rejoinder at first instance.
20 – See, in particular, Case C-351/04 Ikea Wholesale [2007] ECR I-7723, paragraph 40 and case-law cited.
21 – Ibid., paragraph 41 and case-law cited.
22 – See, inter alia, by analogy, in the field of State aid, Case C-525/04 Spain v Lenzing [2007] ECR I-9947, paragraph 57, and Case C-290/07 P Commission v Scott [2010] ECR I-0000, paragraph 66, and in the field of the application of competition rules, Case C-441/07 P Commission v Alrosa [2010] ECR I-0000, paragraph 67.
23 – See, in particular, as regards the application of competition rules, Case C-12/03 P Commission v Tetra Laval [2005] ECR I-987, paragraph 39, Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I-4951, paragraph 145, and, as regards State aid rules, Spain v Lenzing, paragraph 56, and Commission v Scott, paragraph 65.
24 – Tetra Laval v Commission, paragraph 39; Bertelsmann and Sony Corporation of America v Impala, paragraph 145; Spain v Lenzing, paragraph 57, and Commission v Scott, paragraph 65.
25 – See, to that effect, point 103 of my Opinion in Commission v Scott.
26 – Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, paragraph 17, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 99.
27 – See, to that effect, Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I-9147, paragraph 94.
28 – Ibid., paragraph 81.
29 – Italics added.
30 – See, in particular, in that regard, Foshan Shunde Yongjian Housewares & Hardware v Council, paragraphs 81 and 107.
31 – With regard to anti-dumping procedures, see Foshan Shunde Yongjian Housewares & Hardware v Council, paragraph 83.
32 – See, inter alia, Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Joined Cases C-258/90 and C-259/90 Pesquerias De Bermeo and Laida Naviera v Commission [1992] ECR I-2901, paragraph 26, and Case C-405/07 P Netherlands v Commission [2008] ECR I-8301, paragraph 56.
33 – See, in that regard, Case C-16/90 Nölle [1991] ECR I-5163, paragraph 13, and Case C-26/96 Rotexchemie [1997] ECR I-2817, paragraph 12. See also Case T-48/96 Acme v Council [1999] ECR II-3089, paragraph 39, and Case T-413/03 Shandong Reipu Biochemicals v Council [2006] ECR II-2243, paragraph 64.
34 – See in that regard, in particular, Netherlands v Commission, paragraph 44, and Case C-535/06 P Moser Baer India v Council [2009] ECR I-7051, paragraph 34.
35 – According to case-law, the appraisal of the facts does not, save where the clear sense of the evidence has been distorted by the General Court, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal: see, in particular, Foshan Shunde Yongjian Housewares & Hardware v Council, paragraph 56 and case-law cited.
36 – See, inter alia, Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 54; Case C-167/04 P JCB Service v Commission [2006] ECR I-8935, paragraph 108, and Case C-362/05 P Wunenburger v Commission [2007] ECR I-4333, paragraph 67.
37 – See, in particular, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 148, and the orders in Case C-503/07 P Saint-Gobain Glass Deutschland v Commission [2008] ECR I-2217, paragraph 62, and Case C-498/09 P Thomson Sales Europe v Commission [2010] ECR I-0000, paragraph 87.
38 – Article 6(2) of the basic regulation provides that parties receiving questionnaires sent by the Commission in the context of an anti-dumping investigation are to be given at least 30 days to reply. An extension of that period may be granted under the circumstances provided for in that provision.
39 – The injury margin is the level of injury suffered by the EU industry expressed as a percentage of the CIF (cost, insurance and freight) price of the exports of the product concerned (undercutting price) calculated, as a general rule, on the basis of the difference between the weighted average sales price of the EU producers and the weighted sales price of dumped exports to the European Union. See, in that regard, recital 233 in the preamble to the contested regulation.
40 – See, by analogy, Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraphs 47 and 48. See also, in that regard, Article 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1. Moreover, Article 41 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389) provides that the right to good administration includes ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’.
41 – It should be noted that the judgment under appeal wrongly refers to Tubos Reunidos, the sampled EU producer affiliated to Productos Tubulares. That clerical error was not raised by the parties to the appeal and is of no consequence.
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