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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> EWRIA & Ors v Commission (Commercial policy) [2010] EUECJ T-369/08 (17 December 2010)
URL: http://www.bailii.org/eu/cases/EUECJ/2010/T36908.html
Cite as: [2010] EUECJ T-369/08, [2010] EUECJ T-369/8
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(Dumping – Imports of iron or steel ropes and cables originating in China, India, South Africa, Ukraine and Russia – Refusal to initiate a partial interim review of the anti-dumping duty imposed)
In Case T-369/08,
European Wire Rope Importers Association (EWRIA), established in Hemer (Germany),
Câbleries namuroises SA, established in Namur (Belgium),
Ropenhagen A/S, established in Vallensbaek Strand (Denmark),
ESH Eisen- und Stahlhandelsgesellschaft mbH, established in Kaarst (Germany),
Heko Industrieerzeugnisse GmbH, established in Hemer,
Interkabel Internationale Seil- und Kabel-Handels GmbH, established in Solms (Germany),
Jose Casañ Colomar, SA, established in Valencia (Spain),
Denwire Ltd, established in Dudley (United Kingdom),
represented by T. Lieber, lawyer,
applicants,
European Commission, represented by C. Clyne and H. van Vliet, acting as Agents,
defendant,
APPLICATION for annulment of the decision of the Commission of 4 July 2008 rejecting the applicants’ request for initiation of a partial interim review of the anti-dumping measures applicable to imports of iron or steel ropes and cables,
composed of M.E. Martins Ribeiro (Rapporteur), President, S. Papasavvas and A. Dittrich, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 18 March 2010,
gives the following
Judgment
Legal context
A – Basic anti-dumping regulation
1 The basic anti-dumping legislation is Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1; ‘the basic regulation’) (replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum in OJ 2010 L 7, p. 22)). Under Article 1(1), (2) and (4) of the basic regulation (now Article 1(1), (2) and (4) of Regulation No 1225/2009):
‘1. An anti-dumping duty may be applied to any dumped product whose release for free circulation in the Community causes injury.
2. A product is to be considered as being dumped if its export price to the Community is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.
…
4. For the purpose of this Regulation, the term “like product” shall be interpreted to mean a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which although not alike in all respects, has characteristics closely resembling those of the product under consideration.’
2 Under Article 3(1) and (2) of the basic regulation (now Article 3(1) and (2) of Regulation No 1225/2009):
‘1. Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.
2. A determination of injury shall be based on positive evidence and shall involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and (b) the consequent impact of those imports on the Community industry.’
3 Under Article 5(7) and (9) of the basic regulation (now Article 5(7) and (9) of Regulation No 1225/2009):
‘7. The evidence of both dumping and injury shall be considered simultaneously in the decision on whether or not to initiate an investigation. A complaint shall be rejected where there is insufficient evidence of either dumping or of injury to justify proceeding with the case.
…
9. Where, after consultation, it is apparent that there is sufficient evidence to justify initiating a proceeding, the Commission shall do so within 45 days of the lodging of the complaint and shall publish a notice in the Official Journal of the European Communities. Where insufficient evidence has been presented, the complainant shall, after consultation, be so informed within 45 days of the date on which the complaint is lodged with the Commission.’
4 Under Article 11(2), (3), (5) and (6) of the basic regulation (now Article 11(2), (3), (5) and (6) of Regulation No 1225/2009):
‘2. A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. …
3. The need for the continued imposition of measures may also be reviewed, where warranted, … provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review.
An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence.
…
5. The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review.
6. Reviews pursuant to this Article shall be initiated by the Commission after consultation of the Advisory Committee. Where warranted by reviews, measures shall be repealed or maintained pursuant to paragraph 2, or repealed, maintained or amended pursuant to paragraphs 3 and 4, by the Community institution responsible for their introduction. …’
5 Article 21(1) of the basic regulation (now Article 21(1) of Regulation No 1225/2009) provides:
‘A determination as to whether the Community interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers; and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Community interest to apply such measures.’
B – Anti-dumping measures applicable to imports of iron or steel ropes and cables
1. Anti-dumping measures imposed on imports of steel ropes and cables originating in China, India, South Africa and Ukraine
6 Following two complaints lodged in April and June 1998 respectively by the Liaison Committee of European Union Wire Rope Industries (‘EWRIS’) and the opening of anti-dumping procedures on 20 May 1998 concerning imports into the Community of steel ropes and cables, the Commission of the European Communities adopted Regulation (EC) No 362/1999 of 18 February 1999 imposing a provisional anti-dumping duty on imports of steel ropes and cables originating in the People’s Republic of China, India, Mexico, South Africa and Ukraine and accepting undertakings offered by certain exporters in Hungary and Poland (OJ 1999 L 45, p. 8). Recital 7 in the preamble to that regulation defines the ‘product concerned’ as ‘steel ropes and cables, including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm’.
7 On 12 August 1999, the Council adopted Regulation (EC) No 1796/1999 imposing a definitive anti-dumping duty, and collecting definitively the provisional duty imposed, on imports of steel ropes and cables originating in the People’s Republic of China, Hungary, India, Mexico, Poland, South Africa and Ukraine and terminating the anti-dumping proceeding in respect of imports originating in the Republic of Korea (OJ 1999 L 217, p. 1). Recital 4 in the preamble to that regulation reiterated the definition of the product concerned set out in recital 7 in the preamble to Regulation No 362/1999.
8 Following the publication on 13 November 2003 of a notice of impending expiry (OJ 2003 C 272, p. 2) relating, inter alia, to the anti'dumping measures imposed by Regulation No 1796/1999, the Commission received on 17 May 2004 a request for review lodged by EWRIS, in accordance with Article 11(2) of the basic regulation. On 17 August 2004, the Commission published a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of steel ropes and cables originating in the People’s Republic of China, India, South Africa and Ukraine (OJ 2004 C 207, p. 2) and opened a review investigation.
9 On 8 November 2005, the Council adopted Regulation (EC) No 1858/2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating in the People’s Republic of China, India, South Africa and Ukraine following an expiry review pursuant to Article 11(2) of [the basic regulation] (OJ 2005 L 299, p. 1). Recital 18 in the preamble to Regulation No 1858/2005 reiterated the definition of the product concerned set out in recital 4 in the preamble to Regulation No 1796/1999.
2. Anti-dumping measures imposed on imports of iron or steel ropes and cables originating in Russia
10 Following a complaint lodged in March 2000 by EWRIS, and the initiation of anti-dumping procedures on 5 May 2000 with regard to imports into the Community of certain iron or steel ropes and cables, the Commission adopted Regulation (EC) No 230/2001 of 2 February 2001 imposing a provisional anti'dumping duty on certain iron or steel ropes and cables originating in the Czech Republic, Russia, Thailand and Turkey and accepting undertakings offered by certain exporters in the Czech Republic and Turkey (OJ 2001 L 34, p. 4). Recital 9 in the preamble to that regulation defines the ‘product concerned’ as ‘ropes and cables, including locked coil ropes, of iron or steel but not stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, with attached fittings or not’.
11 On 2 August 2001, the Council adopted Regulation (EC) No 1601/2001 imposing a definitive anti-dumping duty and definitively collecting the provisional anti'dumping duty imposed on imports of certain iron or steel ropes and cables originating in the Czech Republic, Russia, Thailand and Turkey (OJ 2001 L 211, p. 1). Recital 8 in the preamble to that regulation reiterated the definition of the product concerned set out in recital 9 in the preamble to Regulation No 230/2001.
12 Following the publication on 29 October 2005 of a notice of the impending expiry (OJ 2005 C 270, p. 38) relating, inter alia, to the anti'dumping measures imposed by Regulation No 1601/2001, the Commission received, on 28 April 2006, a request for review lodged by EWRIS, in accordance with Article 11(2) of the basic regulation. On 3 August 2006, the Commission published a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain iron or steel ropes and cables originating in Russia, Thailand and Turkey and a partial interim review of the anti-dumping measures applicable to imports of certain iron or steel ropes and cables originating in Turkey (OJ 2006 C 181, p. 15) and opened a review investigation.
13 On 30 October 2007, the Council adopted Regulation (EC) No 1279/2007 imposing a definitive anti-dumping duty on certain iron or steel ropes and cables originating in the Russian Federation, and repealing the anti-dumping measures on imports of certain iron or steel ropes and cables originating in Thailand and Turkey (OJ 2007 L 285, p. 1). Recital 32 in the preamble to that regulation defines the ‘product concerned’, by reference to the definition of the product concerned set out in recital 8 in the preamble to Regulation No 1601/2001, as being ‘ropes and cables, including locked coil ropes, of iron or steel but not stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, with attached fittings or not’.
Background to the dispute
14 The European Wire Rope Importers Association (EWRIA), one of the applicants in the present case, is an association set up to represent the collective interests of European companies active in the import and marketing of steel ropes and cables. The other applicants in this case are members of EWRIA and are companies governed by Belgian law (Câbleries Namuroises SA), Danish law (Ropenhagen A/S), German law (ESH Eisen- und Stahlhandelsgesellschaft mbH, HEKO Industrieerzeugnisse GmbH, Interkabel Internationale Seil- und Kabel-Handels GmbH), Spanish law (Jose Casañ Colomar, SA) and the laws of the United Kingdom (Denwire Ltd).
15 On 12 June 2007, EWRIA – acting on behalf of the other applicants and a number of other companies – lodged with the Commission a request for a partial interim review, pursuant to Article 11(3) of the basic regulation, of the anti-dumping measures imposed on (i) imports of steel ropes and cables originating in China, India, South Africa and Ukraine by Regulation No 1858/2005 and (ii) imports of certain iron or steel ropes and cables originating in the Czech Republic, Russia, Thailand and Turkey by Regulation No 1601/2001, as amended by Council Regulation No 564/2005 of 8 April 2005 (OJ 2005 L 97, p. 1) (‘the request for review’).
16 The request for review sought a redefinition of the scope of the anti'dumping measures at issue in terms of the products covered, namely iron or steel ropes and cables (collectively ‘steel wire ropes’ or ‘SWR’). In EWRIA’s submission, the situation has changed significantly since the anti-dumping measures at issue were first introduced, for the following reasons:
– the definition of the product concerned in the anti-dumping measures at issue is inconsistent with the Community standards for steel wire (EN 10264) and steel wire ropes (EN 12385), which officially differentiate between general purpose ropes and special purpose ropes;
– operators currently active on the market no longer regard general purpose ropes and special purpose ropes to be a single product, but as separate products;
– since the imposition of the anti-dumping measures at issue, the production of general purpose ropes in the Community has become insignificant, since Community producers of steel wire ropes now manufacture predominantly special purpose ropes;
– conditions on the Community market for steel wire ropes have changed, since there is no longer any significant competition between general purpose ropes and special purpose ropes, and imports of general purpose ropes no longer cause injury to Community producers of steel wire ropes.
17 In the request for review, EWRIA proposed that the definition of the product concerned should be segmented into two groups: (i) general purpose ropes and (ii) high performance or special purpose ropes. Special purpose ropes would remain subject to the anti-dumping measures, while general purpose ropes would be excluded from the scope of those measures.
18 By letter of 8 April 2008, following a meeting with EWRIA, the Commission informed EWRIA that:
‘As discussed during our meeting of 8 April 2008, we understand that you envisage complementing your submission dated 12 June 2007 with evidence on injury and/or dumping.
We look forward to receiving the additional information.
We are at your full disposal for any further question you might have concerning this matter.’
19 By letter of 30 April 2008, EWRIA replied to the Commission as follows:
‘In the above mentioned matter reference is made to our discussion of 8 April 2008 and your letter of the same date.
With regard to our request for an interim review of 12 June 2007, please note that we do not intend to complement this submission. From our point of view, the request contains sufficient evidence of “changed circumstances” with regard to the definition of the product scope since introduction of the first anti-dumping regulation on steel wire ropes in 1999. Moreover, the request had already been discussed in extenso with Mr [P.-C.] and Ms [C.-N.], who informed us that according to their opinion, the chances for an interim review on the product scope of steel wire ropes were “promising”.
Therefore, we may ask you to honour our request and to initiate an interim review on the product scope of steel wire ropes without further delay. Should you, however, decide to reject our request, please note that such decision would be subject to judicial review.’
20 By letter of 4 July 2008 (‘the letter in dispute’), the Commission informed EWRIA as follows:
‘I refer to the various exchanges that you had with me and my team on the question as to whether it was possible to open a partial review of the above measures on steel wire ropes and cables to exclude “General Purpose Ropes” (GPR) from the scope of the measures.
We understand from your letter dated 30 April that you do not intend to provide additional evidence to support your request for a product scope [review] beyond the information and evidence submitted prior to that date.
We regret to inform you that, on the basis of the information you have submitted so far, it is not possible to conclude that a partial interim review should be opened in view of the exclusion of GPR from the product scope of the measures. This is essentially because there is not sufficient evidence that the two product types under measures, GPR and SPR (Special Purpose Ropes), do not share the same basic physical, technical and chemical characteristics.
You base your submission on a number of elements, [inter alia] lubricants, plastic inserts, degrees of rotation and characteristics of the wires that allegedly differentiate many types of SWR. However, it is not sufficient because all of them share the same basic physical, technical and chemical characteristics.
In this respect, SWR consist of three basic components: the steel wire that forms the strand, the strands that are wrapped around a core and the core itself. These components vary in design depending on the physical requirement of the intended application of the SWR. In this respect, it should first be noted that, although SWR are produced in a wide range of different types with a certain degree of physical and technical differences, all of them have the same basic physical characteristics (i.e. the steel wires that form the strand, the strands that are wrapped around the core that form the ropes, and the core itself) and the same basic technical characteristics (all have a number of wires in a strand, a number of strands in a rope, a certain diameter and a certain construction). While products in the bottom end and in the top end of the range are not interchangeable, products in adjoining groups are. We therefore conclude that a certain degree of overlapping and competition exists between SWR in different groups. Moreover, products in the same group may have different applications.
Furthermore, there appear to be adjoining groups in which GPR compete with SPR, since they can be used for the same purposes and appear to be, therefore, interchangeable.
Of course, should you have new information on the basis of which you consider that we should re-evaluate this position, you are always welcome to provide such information.
We are at your full disposal for any further question you might have concerning this matter.’
Procedure and forms of order sought by the parties
21 By application lodged at the Court Registry on 4 September 2008, the applicants brought the present action.
22 The applicants claim that the Court should:
– declare the action admissible;
– annul the decision of the Commission of 4 July 2008, in which the Commission rejects the applicants’ request for a partial interim review of the anti-dumping measures on steel wire ropes to adjust the scope of the measures and exclude general purpose ropes from the definition of the product concerned;
– order the Commission to initiate a partial interim review of the anti-dumping measures imposed on imports of steel wire ropes to adjust the scope of the measures and exclude general purpose ropes from the definition of the product concerned;
– order the Commission to pay the costs.
23 The Commission contends that the Court should:
– dismiss the action as inadmissible or, in the alternative, as unfounded; and
– order the applicants to pay the costs.
24 At the hearing on 18 March 2010, the parties presented oral argument and replied to the Court’s questions.
Law
A – Admissibility
1. Admissibility of the claim that the decision of the Commission of 4 July 2008 not to initiate a partial interim review of the anti-dumping measures relating to steel wire ropes should be annulled
a) Arguments of the parties
25 The Commission contends that this claim is inadmissible. The letter in dispute does not constitute a decision for the purposes of Article 230 EC, since it does not have any final legal effects for the applicants. Unlike the letter classified as a decision in Case C-521/06 P Athinaïki Techniki v Commission [2008] ECR I-5829, the letter in dispute is not intended to bring about a distinct change in the applicants’ legal position.
26 In the first place, the Commission observes, with reference to the wording of the letter in dispute, that the letter does not establish a ‘final and irreversible refusal’ of the possibility of opening an interim review. The letter in dispute represents the position taken by the Commission’s services ‘on the basis of the information … submitted so far’. The Head of Unit and his team provisionally considered that the applicants had not yet provided enough evidence to justify initiating an interim review, but did not intend to preclude outright the initiation of a review. The letter in dispute expressly leaves it open to EWRIA to submit fresh information which could convince the Commission that it was appropriate to initiate an interim review. The Commission emphasises in that regard that, in the present case, it did not close the file. For those reasons, the letter in dispute is not comparable with the letter classified as a decision in Athinaïki Techniki v Commission (paragraph 25 above), but resembles, rather, the letter which was sent before that letter, stating that Athinaïki Techniki could provide additional information. If the applicants in the present case had sent another letter, expanding on their reasons for requesting a review and on why they considered that the Commission should re-evaluate its position, the Commission would have done so, without the applicants being required to submit a fresh request.
27 In the second place, the Commission maintains, with reference to the identity of the author of the letter in dispute, that that letter was merely a letter from the Commission’s services and not a letter from the Commission itself, within the meaning of the order of this Court of 14 May 2009 in Case T-22/07 US Steel Košice v Commission, not published in the ECR, paragraph 42. The Head of Unit who signed the letter refers to the various exchanges which the applicants had had ‘with [him] and [his] team’, while the pronoun ‘we’, referring to the Head of Unit in question and his team, is used in the rest of the letter. This is an important indicator that the letter in dispute does not constitute a decision for the purposes of Article 230 EC.
28 Accordingly, unlike the situation in the case which gave rise to the order of this Court in Case T-84/97 BEUC v Commission [1998] ECR II-795 (paragraph 48), the letter in dispute does not constitute ‘clear and definitive consideration’ of the request for review.
29 The applicants claim that, in accordance with the criteria set out in Athinaïki Techniki v Commission (paragraph 25 above), the letter in dispute constitutes a decision for the purposes of Article 230 EC.
b) Findings of the Court
30 It should be noted as a preliminary that it is clear from the application that the action seeks annulment of ‘the decision of the Commission of 4 July 2008, in which the Commission rejects the applicants’ request for a partial interim review of the anti-dumping measures on steel wire ropes to adjust the scope of the measures and exclude general purpose ropes from the definition of the product concerned’ (‘the contested measure’).
31 According to settled case-law, an action for annulment for the purposes of Article 230 EC must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Case C-443/97 Spain v Commission [2000] ECR I-2415, paragraph 27; Case C-131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I-7795, paragraph 54; and Athinaïki Techniki v Commission, paragraph 25 above, paragraph 29).
32 It is also apparent from settled case-law concerning the admissibility of actions for annulment that, in order to classify contested measures, it is necessary to look to their substance, as well as the intention of those who drafted them. In that regard, it is in principle those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure and which are intended to have binding legal effects capable of affecting the interests of the applicant, which are actionable, not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (IBM v Commission, paragraph 31 above, paragraphs 9 and 10; Case C-39/93 P SFEI and Others v Commission [1994] ECR I-2681, paragraphs 27 to 33; Case C-147/96 Netherlands v Commission [2000] ECR I-4723, paragraphs 26 and 27; Athinaïki Techniki v Commission, paragraph 25 above, paragraph 42; and Case C-362/08 P Internationaler Hilfsfonds v Commission [2010] ECR I-0000, paragraph 52).
33 By contrast, the form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by an action for annulment (IBM v Commission, paragraph 31 above, paragraph 9; Case C-208/03 P Le Pen v European Parliament [2005] ECR I-6051, paragraph 46; and Athinaïki Techniki v Commission, paragraph 25 above, paragraph 43). If it were otherwise, the Commission could avoid review by the Courts of the European Union (Courts of the Union) simply by failing to comply with procedural requirements. It is apparent from the case-law that, as the European Union is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty, the procedural rules governing actions brought before the Courts of the Union must be interpreted in such a way as to ensure, wherever possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under EU law (Athinaïki Techniki v Commission, paragraph 25 above, paragraphs 44 and 45; see also, to that effect, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraphs 38 and 39; and Case C-229/05 P PKK and KNK v Council [2007] ECR I-439, paragraph 109).
34 It follows that, in order to determine whether the contested measure constitutes a decision for the purposes of Article 230 EC, it is necessary to ascertain whether, in the light of the substantive content of the measure, the intention of the Commission, and the context in which the measure was adopted (see, to that effect, Internationaler Hilfsfonds v Commission, paragraph 32 above, paragraph 58), the Commission set out in that measure its definitive position on the request for review.
35 It should be noted first of all that the letter in dispute was sent in response to the letter from EWRIA dated 30 April 2008, in which EWRIA informed the Commission of its intention not to supplement the request for review since the request contained sufficient evidence, and of its intention, if its request were refused, to bring an action before the Courts of the Union. Also, the passage of the letter in dispute which reads ‘[w]e regret to inform you that, on the basis of the information you have submitted so far, it is not possible to conclude that a partial interim review should be opened’ shows that the Commission had decided not to grant the request for review. In that context, the Commission also gave the applicants the reasons why it had decided not to open a review. It stated that ‘[t]his [was] essentially because there is not sufficient evidence that the two product types under measures, GPR and SPR (special purpose ropes), do not share the same basic physical, technical and chemical characteristics’. Lastly, although the Commission admittedly did state at the end of the letter in dispute that the applicants were welcome to provide any new information on the basis of which it might ‘re-evaluate this position’, it should be noted that the Commission had been clearly informed of the fact that the request for review was final and that it would not be supplemented by any additional evidence.
36 In the light of the above considerations, it is clear that a decision had been taken on that request and that, in the event of fresh information being supplied, a new decision might be taken that would take into account such information.
37 It should also be noted that the second subparagraph of Article 11(3) of the basic regulation (now the second subparagraph of Article 11(3) of Regulation No 1225/2009) provides that an interim review is to be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury. By contrast with a situation in which the Commission decides, in accordance with Article 11(6) of the basic regulation, to initiate an interim review after consulting the Advisory Committee (see, to that effect, order in Case T-134/95 Dysan Magnetics and Review Magnetics v Commission [1996] ECR II-181, paragraph 23, and order in Case T-267/97 Broome & Wellington v Commission [1998] ECR II-2191, paragraph 29), the refusal to initiate such a review in the absence of sufficient evidence does not constitute a preliminary or preparatory measure, since it cannot be followed by any other measure amenable to annulment proceedings (see, to that effect, SFEI and Others v Commission, paragraph 32 above, paragraph 28, and Athinaïki Techniki v Commission, paragraph 25 above, paragraph 54).
38 It is not relevant in that regard that the applicants may still provide the Commission with additional information which might lead the Commission to review its position (see, to that effect, Athinaïki Techniki v Commission, paragraph 25 above, paragraph 55).
39 Admittedly, as the Commission stated at the hearing, no formal decision was taken following the request for review. However, since Article 5(7) of the basic regulation, which applies also to interim reviews pursuant to Article 11(5) of that regulation, provides that a request for the initiation of a review is to be rejected where there is insufficient evidence of either dumping or of injury to justify proceeding with the case, and Article 5(9) of that regulation states that ‘[w]here insufficient evidence has been presented, the complainant shall, after consultation, be so informed’, it must be held that the Commission informed the applicants by the letter in dispute of its decision to refuse the request for review.
40 In the light of the considerations set out in paragraph 35 above and of the fact that the Commission decided not to act on the request for review, it must be assumed that if the applicants had subsequently provided additional information the Commission would, if appropriate, have taken a new decision, taking into account that fresh information, as to whether it was appropriate to initiate an interim review, in the light of the evidence in its possession. However, that information has no effect on the fact that the first request for review has now been refused (see, to that effect, Athinaïki Techniki v Commission, paragraph 25 above, paragraph 57).
41 It follows that, in view of its substance and the context in which it was adopted, and of the Commission’s intention, the contested measure constitutes a final refusal by the Commission to initiate a partial interim review. The contested measure must therefore be treated as a decision for the purposes of Article 230 EC.
42 The nature of that decision cannot be called in question solely on the ground that it emanates from the Commission’s services and not from the Commission itself (see, to that effect, Case T-37/92 BEUC and NCC v Commission [1994] ECR II'285, paragraph 38, and BEUC v Commission, paragraph 28 above, paragraph 48).
43 Since that decision refused the request to initiate an investigation to determine the need to maintain the anti-dumping measures at issue owing to a purported change in circumstances in the course of an interim review procedure under Article 11(3) of the basic regulation, it produced binding legal effects capable of affecting the interests of the applicants and constitutes an actionable measure, in accordance with Article 230 EC.
2. Admissibility of the claim that the Commission should be ordered to initiate a partial interim review
a) Arguments of the parties
44 The Commission contends that this claim is inadmissible. Pursuant to Article 233 EC and the case-law, it is not for the Court to issue directions to the Commission as to how it should comply with a judgment given in proceedings for annulment.
b) Findings of the Court
45 In an action for annulment founded on Article 230 EC, the jurisdiction of the Courts of the Union is limited to reviewing the legality of the contested measure and, according to settled case-law, the Court may not, in the exercise of its jurisdiction, issue directions to EU institutions or assume the role assigned to them (Case C-21/94 European Parliament v Council [1995] ECR I-1827, paragraph 33; Case C-5/93 P DSM v Commission [1999] ECR I-4695, paragraph 36; Case T-145/98 ADT Projekt v Commission [2000] ECR II'387, paragraph 83). In the event that the contested measure is annulled, it is for the institution concerned to adopt, in accordance with Article 233 EC, the necessary measures to comply with the judgment annulling that measure (Case 53/85 AKZO Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, paragraph 23, and ADT Projekt v Commission, paragraph 84).
46 It follows that the applicants’ claim that the Court should order the Commission to initiate a partial interim review must be rejected as inadmissible.
3. Admissibility of the pleas in law put forward by the applicants
a) Arguments of the parties
47 With regard to the first plea, the Commission contends that, instead of setting out their arguments in the body of the application, the applicants have essentially referred to arguments contained in the request for review. The Commission concludes that the first plea, and the other pleas put forward by the applicants which have the same defect, are inadmissible, as they are not contained within the application itself.
b) Findings of the Court
48 Under Article 44(1)(c) of the Rules of Procedure of the General Court, every application initiating proceedings must state the subject-matter of the proceedings and contain a summary of the pleas in law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Case T-19/01 Chiquita Brands and Others v Commission [2005] ECR II-315, paragraph 64 and the case-law cited).
49 Whilst the body of the application may be supported and supplemented on specific points by references to certain extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law which must appear in the application (Case T-209/01 Honeywell v Commission [2005] ECR II-5527, paragraph 57, and Case T-201/04 Microsoft v Commission [2007] ECR II-3601, paragraph 94). Moreover, it is not for the Court to seek and to identify, in the annexes, the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T-84/96 Cipeke v Commission [1997] ECR II'2081, paragraph 34; Case T-231/99 Joynson v Commission [2002] ECR II'2085, paragraph 154; and Honeywell v Commission, paragraph 57). The application must accordingly specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (Case T-102/92 Viho v Commission [1995] ECR II'17, paragraph 68, and judgment of 22 November 2006 in Case T-282/04 Italy v Commission, not published in the ECR, paragraph 60).
50 It must be held that the pleas relied on by the applicants fulfil the abovementioned requirements.
51 In the first place, there is no doubt that it is made clear expressly in the application that the present action seeks recognition of the breach of Article 1(4), Article 11(3) and Article 21 of the basic regulation allegedly constituted by the Commission’s refusal to initiate an interim review of the anti-dumping measures at issue. It also seeks a declaration that the Commission acted in breach of the principle of the protection of legitimate expectations.
52 In the second place, even though the applicants make extensive reference, in each plea, to the request for review appended to their application, they also set out in their application the principal arguments in support of their action. With regard to the first plea, alleging changed circumstances with regard to product definition, Community production and injury, the applicants claim first of all, in paragraphs 28 to 35 of the application, that the original product definition has been superseded by changed circumstances related to certain technical and technological developments. Next, in paragraphs 36 to 41 of the application, the applicants state that Community production of general purpose ropes is being phased out or has already ceased to exist. Lastly, in paragraphs 42 to 45 of the application, they argue that the injury would be unlikely to continue or recur if imports of a particular sub-category of general purpose ropes were excluded from the scope of the measures. With regard to the second plea, alleging breach of the principle of the protection of legitimate expectations, the applicants set out, in paragraphs 12 to 15 and 46 to 50 of the application, the factors which gave rise to their legitimate expectations that an interim review of the anti-dumping measures at issue would be initiated. With regard to the third plea, the applicants set out, in paragraphs 51 to 55 of the application, the reasons why, in their view, the Commission acted in breach of Article 1(4) of the basic regulation by basing its findings on too broad a definition of the product concerned.
53 Thus, the statement of the applicants’ arguments contained in the application enables the Commission to prepare its defence and the Court to conduct its review. It follows that the Commission’s allegation that the applicants’ pleas are inadmissible must be rejected.
B – Substance
54 In support of their action, the applicants put forward three pleas: (i) breach of Article 11(3) and Article 21 of the basic regulation; (ii) breach of the principle of the protection of legitimate expectations; and (iii) manifest error of assessment and breach of Article 1(4) of the basic regulation.
1. First plea: breach of Article 11(3) and Article 21 of the basic regulation
55 The applicants maintain that the Commission acted in breach of Article 11(3) and Article 21 of the basic regulation by refusing to initiate a partial interim review of the anti-dumping measures at issue when it was required to do so in the light of the sufficient evidence contained in their request for review concerning the change in circumstances with regard to product definition, Community production and injury.
56 Thus, this plea may be broken down into three parts. By the first part, the applicants claim that the original product definition was superseded by new circumstances related to certain technical and technological developments. By the second part, they allege that Community production of general purpose ropes is being phased out or has already ceased to exist. Last, by the third part, they submit that injury would be unlikely to continue or recur if imports of a particular sub'category of the product concerned were excluded from the scope of the measures.
a) First part: change in circumstances with regard to the definition of the product concerned
Arguments of the parties
57 The applicants refer to the Commission’s earlier decision-making practice and observe that the change in circumstances justifying an interim review may relate to dumping and/or to injury, but also to the definition of the product concerned. In that regard, the applicants maintain that there has been a change in circumstances relating to steel wire ropes that justifies an adjustment of the definition of the product concerned by the anti-dumping measures at issue.
58 Admittedly, the Commission enjoys a wide discretion with regard to the definition of the product concerned in the context of trade protection measures. However, it was required to initiate an interim review, pursuant to Article 11(3) of the basic regulation, in view of the fact that the applicants’ request contained sufficient evidence of the change in technical and economic circumstances with regard to the definition of the product under consideration. The judgments which the Commission cites as authority for its wide discretion in the context of trade protection measures (Case T-170/94 Shanghai Bicycle v Council [1997] ECR II-1383, paragraphs 61 to 71, and Case T-462/04 HEG and Graphite India v Council [2008] ECR II-3685, paragraph 68) are not relevant for the outcome of the present case, since they relate to the annulment of an anti-dumping measure itself and not to the decision not to initiate an interim review.
59 In the applicants’ submission, the initiation of an interim review is not only required in cases where an adjustment of the existing measures appears inevitable, but also in cases where sufficient evidence is provided that certain technical and economical circumstances have changed and where, owing to those changes, an adjustment of the existing measures may be necessary.
60 In the light of the evidence provided by the applicants in support of their request, the Commission should at least have initiated an interim review in order to be able to take a decision on a possible adjustment of the definition of the product concerned. However, the Commission decided, without even initiating an interim review, that no adjustment of that definition was necessary, in breach of Article 11(3) of the basic regulation.
61 The applicants thus demonstrated in their request for review that the product definition for steel wire ropes had changed since the imposition of the anti-dumping measures on such ropes.
62 In the first place, the distinction between general purpose ropes and special purpose ropes was established on 12 November 2001 by the European Committee for Standardisation in European Standard EN 12385. General purpose ropes for ‘general lifting applications’ were grouped in Part 4 of that standard, while special purpose ropes were grouped in Parts 5 to 10 of that standard. In 2002 the European Committee for Standardisation confirmed that distinction in standard EN 10264 on the requirements for steel wire for ropes, in the context of which it differentiates between ‘… wire for ropes for general applications’ in Part 2 of that standard and ‘… wire for high duty applications’ in Part 3 of that standard.
63 In that regard, the Commission confirmed in Regulation (EC) No 1742/2000 of 4 August 2000 imposing a provisional anti-dumping duty on imports of certain polyethylene terephthalate (PET) originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand (OJ 2000 L 199, p. 48) that standardisation is a highly relevant criterion for the definition of the products concerned.
64 The applicants maintain that the change in standardisation required an adjustment of the scope of the anti-dumping measures at issue and a differentiation between general purpose ropes and special purpose ropes. Thus, the Commission should have undertaken a more detailed investigation of the matter in the framework of an interim review, especially with respect to the specific, exhaustive examples which the applicants provided in their request. The Commission, however, did not take those examples into account, but merely referred to its standard argument that steel wire ropes all share the same basic physical, technical and chemical characteristics and consist of three basic components: the steel wire that forms the strand, the strands that are wrapped around a core, and the core itself. That simplistic argument bears no relation to present technical reality, which is reflected in the complex and voluminous technical descriptions given in standards EN 12385 and EN 10264. Nor is the definition of the product concerned amenable to any refinement, since, owing to technical constraints, all steel wire ropes consist of those three components. It follows that the Commission made a manifest error of assessment and acted in breach of Article 11(3) of the basic regulation by ignoring the changes established by the abovementioned standards and refusing to initiate an interim review.
65 In the second place, the applicants submit that they provided in their request for review evidence of a change in market perception. Contrary to their practice in the past, operators on the market for steel wire ropes now distinguish between general purpose ropes and special purpose ropes.
66 First, the applicants claim to have demonstrated that European producers distinguish between those types of ropes on their internet sites, in their advertisements and in their catalogues, where they emphasise their ability to produce custom made special purpose ropes.
67 Second, the applicants claim to have demonstrated in their request for review that special purpose ropes fall to be distinguished from general purpose ropes on the basis of physical and technical characteristics. Thus, the Commission’s reference to the basic characteristics of steel wire ropes is not apt for the purposes of refuting the applicants’ argument that general purpose ropes and special purpose ropes are perceived by the market as different products.
68 First of all, special purpose ropes are composed, not only of the basic three elements of general purpose ropes, but also of additional elements (such as plastic inserts and/or plastic layers, extra filler strands, special lubricants and compacted strands) which enable them to be used for high duty and high security applications.
69 Next, the strands used in special purpose ropes have been specially treated to give them, inter alia, greater flexibility, a higher breaking load and increased resistance to abrasion and corrosion, as compared with general purpose ropes.
70 In addition, special purpose ropes have exceptional low-rotation qualities, which are far superior to those of general purpose ropes, and can therefore be used for special end uses.
71 Last, special purpose ropes are sold at significantly higher prices than general purpose ropes of the same type.
72 The applicants maintain that they demonstrated in their request for review that a clear dividing line exists between general purpose ropes and special purpose ropes and that to do so they used a matrix showing the differences between such ropes in terms of their physical and technical characteristics and their end uses, which could be used as a guideline for the redefinition of the scope of the measures at issue.
73 In the light of that matrix, the Commission’s refusal to differentiate between general purpose ropes and special purpose ropes is incomprehensible. It can only be explained by the Commission’s fear of the ‘unforeseeable consequences’, to which its representatives referred at the meeting on 8 April 2008, that might arise if general purpose ropes were excluded from the scope of the anti-dumping measures, which would require a re-investigation of all anti-dumping measures in force in relation to steel wire ropes. That fear, however, cannot justify the maintenance of an outdated product definition which is no longer consistent with the technical and economic circumstances of the market.
74 The applicants also submit that, in Council Regulation (EC) No 2537/1999 of 29 November 1999 amending Regulations (EEC) No 2861/93, (EC) No 2199/94, (EC) No 663/96 and (EC) No 1821/98 concerning the imposition of definitive anti-dumping duties on imports of certain magnetic disks (3.5 inch microdisks) originating in Japan, Taiwan, the People’s Republic of China, Hong Kong, the Republic of Korea, Malaysia, Mexico, the United States of America and Indonesia and Regulation (EC) No 1335/1999 re-imposing a definitive anti-dumping duty on imports of certain magnetic disks (3.5 inch microdisks) originating in Indonesia and produced and sold for export to the Community by PT Betadiskindo Binatama (OJ 1999 L 307, p. 1), it was acknowledged that a request for review with a view to the exclusion of a product from the scope of the anti-dumping measures was justified where the product at issue and the product concerned were manifestly different in terms of their physical and technical characteristics, their end uses and their prices. In their request for review, the applicants provided sufficient evidence, they claim, that the abovementioned criteria were met, and the Commission was therefore required to initiate an interim review with a view to an adjustment of the scope of the anti-dumping measures relating to steel wire ropes. The failure to meet that obligation constitutes a manifest error of assessment and a breach of Article 11(3) of the basic regulation.
75 The Commission disputes the applicants’ arguments.
Findings of the Court
76 The applicants claim that the Commission committed a manifest error of assessment and acted in breach of Article 11(3) of the basic regulation by refusing to initiate an interim review with a view to amending the definition of the product concerned.
77 It should first be recalled in that connection that in the sphere of measures to protect trade the institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (Case C-351/04 Ikea Wholesale [2007] ECR I'7723, paragraph 40, and judgment of 8 July 2008 in Case T-221/05 Huvis v Council, not published in the ECR, paragraph 38). The same applies as regards the complex technical assessments made by EU institutions (see, to that effect, Case C-269/90 Technische Universität München [1991] ECR I'5469, paragraph 13; see also, to that effect, Microsoft v Commission, paragraph 49 above, paragraphs 88 and 89).
78 It should also be noted that, according to case-law, in that sphere review by the Courts of the Union of assessments made by the institutions is limited to verifying that the relevant procedural rules have been complied with, that the facts on which the contested choice is based have been accurately stated and that there has been no manifest error of assessment of the facts or misuse of power (see Case T-35/01 Shanghai Teraoka Electronic v Council [2004] ECR II'3663, paragraphs 48 and 49 and the case-law cited, and Case T-300/03 Moser Baer India v Council [2006] ECR II'3911, paragraph 28 and the case-law cited).
79 In that regard, it must be held, in the light of the case-law cited in paragraph 77 above, that the Commission has a broad measure of discretion for the purposes of deciding whether it is necessary to continue to impose anti-dumping measures, under Article 11(3) of the basic regulation, and whether a request for an interim review contains sufficient evidence to establish the need for such a review.
80 It is in the light of those considerations that it is appropriate to consider whether, in the light of the evidence contained in the request for review, the Commission committed a manifest error of assessment in refusing to initiate a partial interim review of the anti-dumping measures at issue.
81 As regards the argument alleging changed circumstances with regard to the definition of the product concerned, the basic anti-dumping regulation does not specify how the product or range of products which may be subject to an anti-dumping investigation is to be defined; nor does it require an intricate classification to be made (see, to that effect, Shanghai Bicycle v Council, paragraph 58 above, paragraph 61).
82 For the purposes of defining the product concerned, the institutions may take account of a number of factors, such as the physical, technical and chemical characteristics of the products; their use; their interchangeability; consumer perception of the products; distribution channels; the manufacturing process; costs of production; and quality (see, to that effect, Case T-401/06 Brosmann Footwear (HK) and Others v Council [2010] ECR II-0000, paragraph 131).
83 Thus, with regard to a change of circumstances justifying exclusion of a particular product from the definition of the product concerned, a claim that the Commission committed a manifest error of assessment by refusing to initiate an interim review must be based on arguments which show that, in its assessment of whether a review should be initiated, the Commission erred with regard to the factors it held to be relevant, or should have taken into account other more relevant factors which, in the context of the review, would have necessitated the exclusion of that product from the definition of the product concerned (see, to that effect, Brosmann Footwear (HK) and Others v Council, paragraph 82 above, paragraph 132).
84 In the contested measure, the Commission concluded that an interim review could not be initiated with a view to excluding general purpose ropes from the definition of the products concerned, primarily because the request for review did not contain sufficient evidence that the two types of rope did not share the same basic physical, technical and chemical characteristics.
85 As the applicants stated at the hearing, they do not dispute the relevance of the criterion of basic physical, technical and chemical characteristics for the definition of the product concerned, but they do consider that other more relevant factors should also be taken into account, in particular those relating to the establishment of common standards, end uses and product prices.
86 In the first place, the applicants rely on the distinction made by the European Committee for Standardisation, in standards EN 12385 and EN 10264, between general purpose ropes and special purpose ropes, complaining that the Commission, contrary to its previous practice, had ignored the criterion of standardisation, which is highly relevant for the definition of the scope of the products concerned.
87 With regard to those standards, it should be noted that Standard EN 12385 sets out the safety requirements for the manufacture and testing of steel wire ropes, whilst Standard EN 10264 sets out the dimensional tolerances, mechanical characteristics, requirements relating to the chemical composition of the steel wire and the conditions to be satisfied by any coating of wire for ropes. Although it is true that these standards lay down specific requirements for certain categories of special purpose ropes, the existence of such requirements is not per se proof that general purpose ropes and special purpose ropes do not constitute a single ‘product concerned’ for the purposes of anti-dumping measures. First, each standard contains, in addition to the definition of specific requirements for certain categories of special purpose ropes, a common introduction which applies to all steel wire ropes, whether general purpose or special purpose. Second, the different categories of steel wire ropes listed in those standards are not mutually exclusive, which means that ropes which meet the requirements of one category may also meet the requirements of the other categories. In any event, even though the Commission stated at the hearing that in certain cases the definition of a product concerned may correspond to a classification as given in a common standard, the definition of the product concerned by anti-dumping measures is not dependent on such a classification.
88 Contrary to the assertions made by the applicants, even if the different types of steel wire ropes can be classified in groups on the basis of additional elements and end uses, it cannot be held that there is a clear dividing line between those different groups. As the Commission rightly submitted at the hearing, there is no objective criterion for determining the uses for the different types of ropes or their end uses when they are imported into or sold in the Community. Even products in the same group may have different applications. Moreover, although steel wire ropes in product groups at the bottom and at the top end of the range are not interchangeable, it is not disputed by the applicants that in some adjoining groups steel general purpose ropes and steel special purpose ropes can be used for the same purposes and are therefore interchangeable. To that extent, a certain degree of overlapping and competition exists between steel wire ropes in the different groups (see, to that effect, Case C-171/87 Canon v Council [1992] ECR I'1237, paragraphs 48 to 52; Case C-174/87 Ricoh v Council [1992] ECR I-1335, paragraphs 35 to 40; and Case C-179/87 Sharp Corporation v Council [1992] ECR I'1635, paragraphs 25 to 30).
89 In any event, Regulation No 1742/2000, relied upon by the applicants, does not support their argument that the introduction of common standards by the European Committee for Standardisation constitutes for the Commission a highly relevant criterion for the definition of the scope of the product concerned. In that regard, suffice it to say that in that regulation the Commission touches only marginally on the existence of common technical standards in the definition of the product concerned. Thus, the criterion for differentiating between the two kinds of polyethylene terephthalate was the ‘intrinsic viscosity’ of those products, and the standard in question had been used in that regulation only as a measurement for a viscosity test. Accordingly, without there being any need to rule on the relevance of the findings reflected in Regulation No 1742/2000 for the outcome of the present dispute, it must be held that the applicants’ argument is based on a misreading of that regulation and must therefore be rejected.
90 In the second place, as regards a change in market perception, the applicants put forward in essence the following two arguments.
91 First, the applicants claim that Community producers differentiate between the two types of wire ropes in their catalogues, on their internet sites and in their advertisements. However, those examples do not show that a clear dividing line can be drawn between general purpose ropes and special purpose ropes, but rather that Community producers offer a full range of different types of steel wire ropes. In any event, a few extracts from the catalogues, internet sites and advertisements of a number of Community producers do not affect the conclusion that the different types of wire ropes have the same basic physical, technical and chemical characteristics and that, to a certain degree, they overlap and compete.
92 Second, the applicants put forward arguments alleging a differentiation between wire ropes on the basis of additional elements (such as filler strands, plastic inserts, and lubricants), special processing (strands compacted into a pentagonal or elliptical shape), exceptional low'rotation qualities, the higher price of special purpose ropes or the special applications of special purpose ropes. Those examples do not, however, support the applicants’ conclusion that a clear dividing line can be drawn between general purpose ropes and special purpose ropes. On the one hand, as stated in paragraph 88 above, although there is a broad range of types of steel wire ropes based on their additional characteristics and special applications, the evidence adduced by the applicants does not affect the Commission’s conclusion that steel wire ropes in adjoining groups are interchangeable and that a certain degree of overlapping and competition exists between them. On the other hand, it should be noted that none of the provisions of the basic regulation requires the institutions to treat the same product differently according to its various applications (see, to that effect, Case T-97/95 Sinochem v Council [1998] ECR II-85, paragraph 53).
93 In that regard, the applicants’ argument based on the institutions’ past practice cannot be accepted either. As was noted in paragraphs 77 to 79 above, it is for the institutions, in the exercise of their discretion in the context of an interim review under Article 11(3) of the basic regulation, to determine whether they need to continue to impose anti-dumping measures. That discretion must be exercised on a case-by-case basis, by reference to all the relevant facts (see, to that effect, Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, paragraph 43). In any event, the findings reflected in Regulation No 2537/1999 do not support the applicants’ position that a review with a view to excluding general purpose steel ropes from the anti-dumping measures at issue was justified, since the investigation which led that regulation to exclude high capacity microdisks clearly demonstrated that there was a clear dividing line between the two products concerned in terms of physical and technical characteristics. Contrary to the assertions made by the applicants, it is not apparent from Regulation No 2537/1999 that the institutions had regarded the end uses and prices of those products as decisive factors. Thus, the only reference to end uses made in the findings of the investigation is in recital 27 in the preamble to Regulation No 2537/1999, in which the Council states that ‘the issue of end uses … is not sufficient on its own to conclude that conventional “microdisks” [and high capacity microdisks] are a single product’, whilst no assessment is made in those findings with regard to the price differences between those two products.
94 It follows from those considerations that the applicants’ arguments relating to the change in the European Committee on Standardisation’s technical standards or the alleged change in market perception do not show that, in the light of the evidence supplied by the applicants concerning changed circumstances with regard to definition of the product concerned, the Commission committed a manifest error of assessment in refusing to initiate a partial interim review of the anti-dumping measures at issue.
95 The first part of the first plea must therefore be rejected.
b) Second part: change in circumstances with regard to the production of general purpose ropes in the Community
– Arguments of the parties
96 The applicants, referring to Council Regulation (EC) No 495/2002 of 18 March 2002 repealing Regulation (EC) No 904/98 with respect to the imposition of a definitive anti-dumping duty on imports into the Community of personal fax machines originating in the People’s Republic of China, Japan, the Republic of Korea, Malaysia, Singapore, Taiwan and Thailand (OJ 2002 L 78, p. 1), submit that the Council repealed Regulation No 904/98 following a request for an interim review, on the ground that production of personal fax machines by the Community industry had considerably decreased and was expected to cease in the near future (see recital 9 in the preamble to Regulation No 495/2002).
97 It follows from that regulation, therefore, that it would be contrary to the Community interest, hence to Article 21 of the basic regulation, to maintain anti-dumping measures in relation to a product the Community production of which is being phased out and is expected to cease in the near future.
98 The applicants submit that they demonstrated in the request for review that Community production of general purpose ropes is now insignificant, by contrast with the period 1999 to 2001, when substantial quantities of general purpose ropes were produced in the Community. They state that they provided proof of that change in circumstances.
99 In the first place, the confidential version of the request for review contained several statements by Community producers which show that general purpose ropes have been withdrawn from production programmes or that those producers are no longer able to manufacture those products. Although the applicants did not produce those statements in the present proceedings, in order to protect their confidential nature, they observe that the Commission was aware of those documents since it is in possession of the confidential version of the request for review.
100 In the second place, the fact that production of general purpose ropes is being phased out is apparent from the advertisements, internet sites and catalogues of Community producers, appended as Annex 4 to the request for review. Those documents show that at present the relevant Community producers of steel wire ropes focus on the production of special purpose ropes.
101 The Commission chose to ignore that evidence, since it made no reference to the phasing-out of the production of general purpose ropes in the letter in dispute. Accordingly, the negative effects of the anti-dumping duties are disproportionate, as the Commission failed to take account of the fact that maintenance of the anti-dumping measures will provide no benefit for the European production of general purpose ropes. The applicants conclude from this that the Commission made a manifest error of assessment and acted in breach of Article 21 of the basic regulation.
102 The Commission contends, first of all, that the present part of the first plea is inadmissible, for two reasons. First, the applicants did not raise the argument during the administrative procedure that maintaining the measures would be contrary to the Community interest and would constitute a breach of Article 21 of the basic regulation.
103 Second, the applicants base their argument that Community production of general purpose ropes is being phased out on alleged facts which are not set out in the non-confidential version of the request for review annexed to the application, as well as on statements by Community producers which are not appended to the request.
104 On the assumption that the present part of the plea is admissible, the Commission disputes the applicants’ allegation that production of general purpose ropes in the Community has become insignificant.
Findings of the Court
– Admissibility
105 As regards the Commission’s contention that the second part of the first plea is inadmissible on grounds of failure to raise during the administrative procedure the argument that maintaining the measures unchanged would be contrary to the Community interest, it should be observed in the present case that Part IV of the request for review is entitled ‘Phase out of Community production of GPR’. The applicants state in that part that Community production of general purpose steel ropes has decreased, which constitutes a change requiring redefinition of the scope of the anti-dumping measures at issue with a view to excluding such ropes from the definition of the product concerned. In order to support their argument, the applicants referred in the request for review to Regulation No 495/2002 (see paragraph 96 above). In that regulation the Council concluded, in the context of an interim review under Article 11(3) of the basic regulation, that it was in the Community interest to discontinue the anti-dumping measures on certain imports of personal fax machines in view of the fact that Community production of the products subject to the anti-dumping measures would soon cease.
106 The arguments concerning the gradual phasing-out of Community production of general purpose ropes are reiterated in full in the application. Citing recital 9 in the preamble to Regulation No 495/2002, the applicants stated in the application that, in view of the gradual phasing-out of the production of general purpose ropes, maintenance of the anti'dumping measures at issue was contrary to the Community interest and constituted a breach of Article 21 of the basic regulation.
107 It is clear from the second and third sentences of Article 21(1) of the basic regulation (now the second and third sentences of Article 21(1) of Regulation No 1225/2009) that the institutions have the right not to apply anti-dumping measures as determined, even if the other conditions for imposing an anti-dumping duty are met – namely dumping, injury and a causal link – if they conclude that it is not in the Community interest to apply such measures. In a case where Community production of products covered by anti-dumping measures is being gradually phased out, assessment of the Community interest is a matter relating to the determination of the need to maintain the anti-dumping measures concerned, in the context of an interim review under Article 11(3) of the basic regulation.
108 It should be noted that the Commission’s complaint that the applicants are putting forward an argument that was not put forward during the administrative procedure is based on a false premiss, as the request for review made at least implicit reference to the disappearance of the Community interest, since it referred to the gradual phasing-out of production of general purpose ropes in the Community and stated, with reference to recital 9 in the preamble to Regulation No 495/2002, that the anti-dumping measures concerned ‘[would] not provide any benefit in terms of protecting [Community] production against possible unfair trade practices’.
109 It follows that the absence of any express reference to Article 21 of the basic regulation in the request for review does not affect the admissibility of this part of the first plea.
110 As regards, next, the question of the failure to produce the allegedly confidential statements of Community producers concerning the phasing-out of Community production of general purpose steel ropes, it must be held that that question falls to be assessed as evidence when the applicants’ claims are assessed, and so it will be analysed as part of the examination of the merits of this part of the first plea.
111 It follows from those considerations that the Commission’s claim that the second part of the first plea is inadmissible must be rejected.
– Substance
112 The applicants claim that the Commission committed a manifest error of assessment by failing to state that production of general purpose ropes was being phased out in the Community and by accordingly refusing to grant the request for review.
113 In that regard, it must be observed that the applicants merely stated that the production of general purpose ropes in the Community was by then insignificant, without providing the slightest actual evidence in support of that statement.
114 First of all, with regard to the statements of Community producers on which the applicants rely in order to demonstrate the decrease in Community production of general purpose steel ropes, it should be noted that, in addition to the fact that they were not produced in the context of the present action, such isolated statements by Community producers asserting, in some cases, that they have withdrawn general purpose ropes from their production programme, cannot in themselves be regarded as sufficient for the purposes of providing evidence of the gradual phasing-out of the Community production of general purpose ropes, unless they are supported by objective evidence such as production statistics.
115 Moreover, the advertisements of Community producers, appended to the request for review annexed to the application, do not demonstrate that general purpose ropes are being gradually phased out in the Community, but rather that Community producers offer a full range of different types of steel wire ropes, and without establishing whether the ropes featured in them are produced in the Community or imported. In any event, a number of extracts from the advertisements, internet sites or catalogues of Community producers which show that the latter are focusing on the production of special purpose ropes is not sufficient to demonstrate the gradual phasing-out of the Community production of general purpose ropes as a whole.
116 Accordingly, the applicants’ arguments alleging a change in circumstances with regard to the gradual phasing-out of the production of general purpose ropes in the Community do not demonstrate that, in the light of the evidence they supplied, the Commission committed a manifest error of assessment by refusing to initiate a partial interim review of the anti-dumping measures at issue.
117 The second part of the first plea must therefore be rejected.
c) Third part: a change in circumstances with regard to the existence of injury
Arguments of the parties
118 The applicants submit that the finding, made when Community manufacturers were still producing general purpose ropes, that imports of those ropes caused them material injury for the purposes of Article 3 of the basic regulation is no longer valid today.
119 In the first place, the applicants claim to have demonstrated in their request for review that general purpose ropes and special purpose ropes were evolving on different markets, which are distinguished by the new European standards EN 12385 and EN 10264. Furthermore, the market for general purpose ropes and the market for special purpose ropes are distinguished by the fact that general purpose ropes are generally marketed in industrial lengths, whereas special purpose ropes, which are manufactured in the Community, are generally subject to further processing.
120 In the second place, in the confidential version of the request for review, the applicants provided statements by Community producers who import large quantities of general purpose ropes, including from countries subject to anti-dumping measures in relation to steel wire ropes. According to the applicants, those imports therefore no longer cause injury to Community producers, who would never deliberately cause injury to themselves. Although the applicants did not produce those statements in the present proceedings, in order to preserve their confidentiality, they observe that the Commission was aware of those documents, since it is in possession of the confidential version of the request for review.
121 Accordingly, given the present absence of injury with respect to imports of general purpose ropes, the applicants claim that injury would be unlikely to continue or to recur if those imports were excluded from the scope of the anti'dumping measures at issue.
122 By refusing to find that injury for the purposes of Article 3 of the basic regulation was in the process of disappearing and by refusing the applicants’ request to initiate a review, the Commission made a manifest error of assessment and acted in breach of Article 11(3) of the basic regulation.
123 The Commission disputes the applicants’ arguments.
Findings of the Court
124 As was noted in paragraph 37 above, Article 11(3) of the basic regulation states that an interim review is to be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
125 With regard, in the first place, to the applicants’ argument that general purpose ropes and special purpose ropes are evolving on different markets, which are distinguished by the European Committee for Standardisation’s new standards, and the argument that they are marketed differently, it should be noted that those arguments have already been considered and rejected during the consideration of the first part of this plea in paragraphs 86 to 95 above.
126 As regards, in the second place, the applicants’ assertion that Community producers import large quantities of general purpose ropes, inter alia from countries subject to anti-dumping measures, it should be noted, first, that – besides the fact that they were not produced in the present proceedings – the individual statements by Community producers that they import large quantities of general purpose ropes, on which the applicants rely, cannot be regarded as sufficient of themselves to prove such imports without the support of objective evidence, such as statistics on Community imports of such ropes. Second, the mere assertion by the applicants that injury would be ‘unlikely’ to continue or to recur does not demonstrate that the injury suffered by the Community industry is disappearing.
127 The applicants’ arguments concerning a change in circumstances with regard to the existence of injury do not therefore demonstrate that, in the light of the evidence provided by the applicants, the Commission committed a manifest error of assessment by refusing to initiate a partial interim review of the anti-dumping measures at issue.
128 The third part of the present plea must therefore be rejected.
129 The first plea must therefore be rejected in its entirety.
2. Second plea: breach of the principle of the protection of legitimate expectations
a) Arguments of the parties
130 The applicants maintain that the Commission breached their legitimate expectations by refusing to initiate an interim review of the anti-dumping measures. It follows from established case-law that the right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU administration has, by giving him precise assurances, led him to entertain justified expectations (Case T-333/03 Masdar (UK) v Commission [2006] ECR II-4377, paragraph 119).
131 In the present case, the Commission is alleged to have led the applicants to entertain legitimate expectations by proposing that they should reintroduce, in the context of an interim review, the argument that general purpose ropes differ substantially from special purpose ropes. Such assurances were given with sufficient certainty and emanated from authorised and reliable sources.
132 First, the Commission encouraged the applicants, upon termination of the expiry review, under Article 11(2) of the basic regulation, of the anti-dumping measures imposed by Regulation No 1796/1999 on imports of steel ropes and cables originating in China, India, South Africa and Ukraine to file a request for an interim review to adjust the scope of the measures at issue. In particular, a Commission representative contacted EWRIA to inform it that the applicants’ request for an adjustment of the scope of the anti-dumping measures could not be made in the framework of an expiry review but should be made in the framework of an interim review under Article 11(3) of the basic regulation. According to the applicants, the Commission representative had no reason to contact EWRIA unless the Commission was interested in an adjustment of the scope of the anti'dumping measures at issue. It is therefore clear that that representative thus encouraged the applicants to file a request for an interim review.
133 Secondly, that suggestion was supplemented by the fact that, on a visit to the seat of Heko Industrieerzeugnisse, one of the applicants, in the context of the expiry review, under Article 11(2) of the basic regulation, of the anti-dumping measures imposed by Regulation No 1601/2001 on imports of certain steel ropes and cables originating in Russia, Thailand and Turkey, the Commission delegation was clearly interested in a redefinition of the scope of the measures concerning steel wire ropes.
134 Thirdly, at the informal meeting concerning the request for review, the Commission representatives gave the applicants the impression that the Commission would be ready to review their arguments, in the framework of a partial interim review, with regard to the scope of the products concerned. Those representatives read over the first draft of the applicants’ request for review and made several recommendations for amendments to it. On the basis of those recommendations, the applicants revised their draft and included the arguments suggested by the Commission representatives. One of the representatives contacted the applicants with regard to the revised draft and informed them that she considered no further amendments were necessary and, in view of the ‘promising’ arguments contained in the request, the latter should be officially filed with the Commission without delay.
135 In order to demonstrate the reality of those contacts, the applicants propose that Mr [H.], the President of EWRIA, should be heard as a witness, in accordance with Article 65(c) of the Rules of Procedure.
136 According to the applicants, the Commission’s conduct implied that it intended to change its position with regard to the definition of the product concerned and of the like product in the anti-dumping measures on steel wire ropes. Consequently, the applicants had every reason to expect that if they submitted a timely request for initiation of an interim review to adjust the scope of the anti-dumping measures at issue and exclude general purpose ropes from those measures, the Commission would initiate the corresponding interim review without delay.
137 The applicants relied on that expectation, invested the necessary time and resources, and filed the request for review on 12 June 2007. By failing to initiate the requested interim review, the EU institutions thus breached the applicants’ legitimate expectations.
138 The Commission replies that it gave the applicants no specific assurances that a review would take place.
b) Findings of the Court
139 According to case-law, the principle of the protection of legitimate expectations extends to any individual in a situation where it is clear that the EU administration has, by giving him precise, unconditional and concordant assurances, emanating from authorised and reliable sources, led him to entertain justified hopes (see Case T-203/97 Forvass v Commission [1999] ECR-SC I'A-129 and II'705, paragraph 70 and the case-law cited; Case T-319/00 Borremans and Others v Commission [2002] ECR-SC I-A-171 and II'905, paragraph 63; and Case T-304/06 Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart) [2008] ECR II-1927, paragraph 64). However, such assurances must comply with the applicable provisions and rules, since promises which do not take account of those provisions cannot give rise to a legitimate expectation on the part of the person concerned (see Case T-205/01 Ronsse v Commission [2002] ECR-SC I-A-211 and II'1065, paragraph 54; Case T-329/03 Ricci v Commission [2005] ECR-SC I'A'69 and II'315, paragraph 79 and the case-law cited; and Mozart; see also, to that effect, Case 162/84 Vlachou v Court of Auditors [1986] ECR 481, paragraph 6).
140 In the present case, it must be noted, first of all, that there is no evidence in the documents before the Court establishing the content of the verbal assurances allegedly given. The Commission does acknowledge that it had contacts with the applicants between August 2004 and November 2005 during the expiry review of the anti-dumping measures imposed by Regulation No 1796/1999 and in October 2006, as a preliminary, concerning the request for review. However, it denies that it gave them specific and unconditional assurances that might lead the applicants to entertain legitimate expectations that a review procedure would be initiated.
141 With regard, first, to the contacts between the Commission and the applicants in the context of the expiry review with regard to Regulation No 1796/1999, the applicants claim that the Commission ‘encouraged’ them to file a request for review and that the Commission representative contacted them to clarify certain procedural aspects of a request for interim review. However, even if the Commission did contemplate the possibility of such a review during those contacts, the fact remains that the information given did not amount to precise, unconditional and concordant assurances that a review would take place.
142 Secondly, regarding the contact between the Commission representatives and the applicants during their visit to the seat of Heko Industrieerzeugnisse in the context of the expiry review of the anti-dumping measures imposed by Regulation No 1601/2001, the applicants merely state that the Commission representatives showed that they were ‘interested’ in a redefinition of the scope of the anti'dumping measures at issue, which does not constitute a precise and unconditional assurance that an interim review would be initiated.
143 Thirdly, as regards the informal meeting between the Commission and the applicants in the context of the request for review which is the subject of the present action, the applicants submit merely that they had the ‘impression’ that the Commission would be ready to review their arguments in the framework of a review and that the Commission described their arguments as ‘promising’. This does not amount to precise, unconditional and concordant assurances that an interim review would take place. Moreover, as the Commission pointed out, its preliminary response to requests for technical advice does not constitute a formal or informal decision on its part, as the analysis of the file can take place only on the basis of the arguments and actual evidence included in a request formally lodged and it cannot therefore, in any event, have generated any legitimate expectations that an interim review would take place.
144 In the light of the fact that the reality of those contacts is not disputed and that the alleged contacts cannot in any case have led the applicants to entertain any legitimate expectations that an interim review would be initiated, there is no reason to grant the applicants’ request for a measure of inquiry.
145 The second plea must therefore be rejected.
3. Third plea: manifest error of assessment and breach of Article 1(4) of the basic regulation
a) Arguments of the parties
146 The applicants maintain that, with respect to the anti-dumping measures imposed on steel wire ropes, the EU institutions based their findings on too broad a definition of the product concerned. This led the institutions to compare unlike products and to arrive at invalid findings.
147 The applicants observe that they set out that argument in their request for review and requested the Commission to adjust the scope of the measures to exclude imports of general purpose ropes. However, the Commission did not take the applicants’ argument into account. The Commission’s assertions in the letter in dispute that the various types of steel wire rope ‘have the same basic physical … and … technical characteristics …’ and that ‘[w]hile products in the bottom end and in the top end of the range are not interchangeable, products in adjoining groups are’ are incorrect, for the following reasons, which were already set out in the request for review.
148 First, the physical and technical characteristics of special purpose ropes are different from those of general purpose ropes, in that they incorporate additional elements and require the use of wire for high duty applications, in accordance with standard EN 10264.
149 Second, the production process for special purpose ropes is markedly different from that for general purpose ropes, since it requires a computerised production line and additional machinery.
150 Third, the end use of the two types of ropes is also different. Special purpose ropes are used for special applications which require the rope to have exceptional physical and technical properties, unlike general purpose ropes.
151 Fourth, special purpose ropes and general purpose ropes are not interchangeable. There are several special applications for which general purpose ropes cannot be used.
152 Fifth, nowadays there is no longer any significant production of general purpose ropes in the Community.
153 The applicants emphasise that those elements all show that there is a clear dividing line between general purpose ropes and special purpose ropes. However, the Commission, by relying on the broad definition of the product, with its reference to ‘basic characteristics’, continues to compare special purpose ropes produced within the Community with imported general purpose ropes, that is to say, with products which are not similar. By refusing to initiate an interim review of the anti'dumping measures, the Commission made a manifest error of assessment and acted in breach of Article 1(4) of the basic regulation.
154 The Commission disputes the applicants’ arguments.
b) Findings of the Court
155 By their third plea, the applicants claim that the anti-dumping measures at issue are based on too broad a definition of the product concerned, so that the institutions continue to compare special purpose ropes with general purpose ropes, products which, according to the applicants, are not similar. In those circumstances, the Commission’s refusal to initiate an interim review constitutes both a manifest error of assessment and a breach of Article 1(4) of the basic regulation.
156 The argument that refusal to initiate an interim review constitutes a breach of Article 1(4) of the basic regulation, in so far as the Commission, by relying on the broad definition of the product concerned, with its reference to basic characteristics, continues to compare special purpose ropes produced within the Community with imported general purpose ropes, ultimately calls in question the legality of the anti-dumping measures at issue and, in particular, the definition they contain of the product concerned, whereas the legality of those measures is not the subject of the present action, which seeks annulment of the decision by which the Commission refused to initiate a partial interim review.
157 Also, the argument that the Commission committed a manifest error of assessment by refusing to initiate an interim review procedure in the light of an alleged change in circumstances concerning the definition of the product concerned, Community production or even the injury sustained clearly overlaps with the arguments put forward in the context of the first plea, which was rejected in paragraphs 55 to 129 above.
158 The third plea must therefore be rejected, as must the action in its entirety.
Costs
159 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
hereby:
1. Dismisses the action.
2. Orders the European Wire Rope Importers Association (EWRIA), Câbleries namuroises SA, Ropenhagen A/S, ESH Eisen- und Stahlhandelsgesellschaft mbH, Heko Industrieerzeugnisse GmbH, Interkabel Internationale Seil- und Kabel-Handels GmbH, Jose Casañ Colomar SA and Denwire Ltd to pay the costs.
|
Martins Ribeiro |
Papasavvas |
Dittrich |
Delivered in open court in Luxembourg on 17 December 2010.
[Signatures]
Legal context
A – Basic anti-dumping regulation
B – Anti-dumping measures applicable to imports of iron or steel ropes and cables
1. Anti-dumping measures imposed on imports of steel ropes and cables originating in China, India, South Africa and Ukraine
2. Anti-dumping measures imposed on imports of iron or steel ropes and cables originating in Russia
Background to the dispute
Procedure and forms of order sought by the parties
Law
A – Admissibility
1. Admissibility of the claim that the decision of the Commission of 4 July 2008 not to initiate a partial interim review of the anti-dumping measures relating to steel wire ropes should be annulled
a) Arguments of the parties
b) Findings of the Court
2. Admissibility of the claim that the Commission should be ordered to initiate a partial interim review
a) Arguments of the parties
b) Findings of the Court
3. Admissibility of the pleas in law put forward by the applicants
a) Arguments of the parties
b) Findings of the Court
B – Substance
1. First plea: breach of Article 11(3) and Article 21 of the basic regulation
a) First part: change in circumstances with regard to the definition of the product concerned
Arguments of the parties
Findings of the Court
b) Second part: change in circumstances with regard to the production of general purpose ropes in the Community
– Arguments of the parties
Findings of the Court
– Admissibility
– Substance
c) Third part: a change in circumstances with regard to the existence of injury
Arguments of the parties
Findings of the Court
2. Second plea: breach of the principle of the protection of legitimate expectations
a) Arguments of the parties
b) Findings of the Court
3. Third plea: manifest error of assessment and breach of Article 1(4) of the basic regulation
a) Arguments of the parties
b) Findings of the Court
Costs
* Language of the case: English.