Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Second Chamber)

7 April 2016 (*)

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

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

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 14 April 2014 (C‑186/14 P) and 15 April 2014 (C‑193/14 P),

ArcelorMittal Tubular Products Ostrava a.s., established in Ostrava-Kunčice (Czech Republic),

ArcelorMittal Tubular Products Roman SA, established in Roman (Romania),

Benteler Deutschland GmbH, formerly Benteler Stahl/Rohr GmbH, established in Paderborn (Germany),

Ovako Tube & Ring AB, established in Hofors (Sweden),

Rohrwerk Maxhütte GmbH, established in Sulzbach-Rosenberg (Germany),

Dalmine SpA, established in Dalmine (Italy),

Silcotub SA, established in Zalău (Romania),

TMK-Artrom SA, established in Slatina (Romania),

Tubos Reunidos SA, established in Amurrio (Spain),

Vallourec Oil and Gas France SAS, formerly Vallourec Mannesmann Oil & Gas France SAS, established in Aulnoye-Aymeries (France),

Vallourec Tubes France SAS, formerly V & M France SAS, established in Boulogne-Billancourt (France),

Vallourec Deutschland GmbH, formerly V & M Deutschland GmbH, established in Düsseldorf (Germany),

Voestalpine Tubulars GmbH & Co. KG, established in Kindberg (Austria),

Železiarne Podbrezová a.s., established in Podbrezová (Slovakia),

represented by G. Berrisch, Rechtsanwalt, and B. Byrne, Solicitor,

appellants,

the other parties to the proceedings being:

Hubei Xinyegang Steel Co. Ltd, established in Huang Shi (China), represented by N. Niejahr, Rechtsanwältin, Q. Azau and H. Wiame, avocats, and by F. Carlin, Barrister,

applicant at first instance,

Council of the European Union, represented by J.-P. Hix, acting as Agent, and by B. O’Connor, Solicitor, and S. Gubel, avocat,

defendant at first instance,

European Commission, represented by J.-F. Brakeland and M. França, acting as Agents, with an address for service in Luxembourg,

intervener at first instance (C‑186/14 P),

and

Council of the European Union, represented by J.-P. Hix, acting as Agent, and by B. O’Connor, Solicitor, and S. Gubel, avocat,

appellant,

supported by

Italian Republic, represented by G. Palmieri, acting as Agent, and by A. Collabolletta, avvocato dello Stato,

the other parties to the proceedings being:

Hubei Xinyegang Steel Co. Ltd, established in Huang Shi (China), represented by F. Carlin, Barrister, M. Healy, Solicitor, N. Niejahr, Rechtsanwältin, and Q. Azau and H. Wiame, avocats,

applicant at first instance,

European Commission, represented by J.-F. Brakeland and M. França, acting as Agents, with an address for service in Luxembourg,

ArcelorMittal Tubular Products Ostrava a.s., established in Ostrava-Kunčice,

ArcelorMittal Tubular Products Roman SA, established in Roman,

Benteler Deutschland GmbH, formerly Benteler Stahl/Rohr GmbH, established in Paderborn,

Ovako Tube & Ring AB, established in Hofors,

Rohrwerk Maxhütte GmbH, established in Sulzbach-Rosenberg,

Dalmine SpA, established in Dalmine,

Silcotub SA, established in Zalău,

TMK-Artrom SA, established in Slatina,

Tubos Reunidos SA, established in Amurrio,

Vallourec Oil and Gas France SAS, formerly Vallourec Mannesmann Oil & Gas France SAS, established in Aulnoye-Aymeries,

Vallourec Tubes France SAS, formerly V & M France SAS, established in Boulogne-Billancourt,

Vallourec Deutschland GmbH, formerly V & M Deutschland GmbH, established in Düsseldorf,

Voestalpine Tubulars GmbH & Co. KG, established in Kindberg,

Železiarne Podbrezová a.s., established in Podbrezová,

represented by G. Berrisch, Rechtsanwalt, and B. Byrne, Solicitor,

interveners at first instance (C‑193/14 P),

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the First Chamber, acting as President of the Second Chamber, J.L. da Cruz Vilaça (Rapporteur), A. Arabadjiev, C. Lycourgos and J.-C. Bonichot, Judges,

Advocate General: P. Mengozzi,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 10 June 2015,

after hearing the Opinion of the Advocate General at the sitting on 19 November 2015,

gives the following

Judgment

1        By their appeals, ArcelorMittal Tubular Products Ostrava a.s., ArcelorMittal Tubular Products Roman SA, Benteler Deutschland GmbH, formerly Benteler Stahl/Rohr GmbH, Ovako Tube & Ring AB, Rohrwerk Maxhütte GmbH, Dalmine SpA, Silcotub SA, TMK-Artrom SA, Tubos Reunidos SA, Vallourec Oil and Gas France SAS, formerly Vallourec Mannesmann Oil & Gas France SAS, Vallourec Tubes France SAS, formerly V & M France SAS, Vallourec Deutschland GmbH, formerly V & M Deutschland GmbH, Voestalpine Tubulars GmbH & Co. KG, Železiarne Podbrezová a.s. (together, ‘ArcelorMittal and Others’) and the Council of the European Union ask the Court to set aside the judgment of the General Court of 29 January 2014 in Hubei Xinyegang Steel v Council (T‑528/09, EU:T:2014:35, ‘the judgment under appeal’), whereby the General Court upheld the application of Hubei Xinyegang Steel Co. Ltd (‘Hubei’) for annulment of Council Regulation (EC) No 926/2009 of 24 September 2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain seamless pipes and tubes of iron or steel originating in the People’s Republic of China (OJ 2009 L 262, p. 19, ‘the regulation at issue’).

 Legal context

2        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) was replaced and codified 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, and corrigendum OJ 2010 L 7, p. 22). However, in view of the date on which the regulation at issue was adopted, the appeals must be examined on the basis of Regulation No 384/96, as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17; ‘the basic regulation’).

3        The basic regulation provides, in Article 3(1),(5), (7) and (9) thereof:

‘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.

…

5.      The examination of the impact of the dumped imports on the Community industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity; factors affecting Community prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

…

7.      Known factors other than the dumped imports which at the same time are injuring the Community industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and Community producers, developments in technology and the export performance and productivity of the Community industry.

…

9.      A determination of a threat of material injury shall be based on facts and not merely on an allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent.

In making a determination regarding the existence of a threat of material injury, consideration should be given to, inter alia, such factors as:

(a)      a significant rate of increase of dumped imports into the Community market indicating the likelihood of substantially increased imports;

(b)      sufficient freely disposable capacity of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Community, account being taken of the availability of other export markets to absorb any additional exports;

(c)      whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports;

and

(d)      inventories of the product being investigated.

No one of the factors listed above by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury would occur.’

4        Article 6(1) of the basic regulation provides:

‘Following the initiation of the proceedings, the Commission, acting in cooperation with the Member States, shall commence an investigation at Community level. Such investigation shall cover both dumping and injury and these shall be investigated simultaneously. For the purpose of a representative finding, an investigation period shall be selected which, in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of the proceeding. Information relating to a period subsequent to the investigation period shall not, normally, be taken into account.’

 Background to the dispute

5        On 9 July 2008, following a complaint lodged by the Defence Committee of the Seamless Steel Tube Industry of the European Union, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of seamless pipes and tubes, of iron or steel, originating in the People’s Republic of China (OJ 2008 C 174, p. 7).

6        In accordance with Article 17 of the basic regulation, the Commission decided to limit its investigation to one sample. In that context, it selected four Chinese exporting producers representing 70% of the total volume of exports of the product concerned to the European Union. Those exporting producers included Hubei.

7        On 7 April 2009 the Commission adopted Regulation (EC) No 289/2009 imposing a provisional anti-dumping duty on imports of certain seamless pipes and tubes of iron or steel originating in China (OJ 2009 L 94, p. 48; ‘the provisional regulation’).

8        In recital 13 of the provisional regulation, the Commission pointed out that the investigation of dumping and injury had covered the period from 1 July 2007 to 30 June 2008 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2005 to the end of the investigation period.

9        In recitals 89 and 126 of the provisional regulation, the Commission concluded, respectively, that there was no injury to the EU industry but that there was a threat of injury to that industry.

10      On 24 September 2009, the Council adopted the regulation at issue.

11      In recitals 35 to 81 of that regulation, the Council confirmed the Commission’s findings set out in the provisional regulation relating to the absence of injury and the existence of a threat of injury to the EU industry. In that regard, the Council took into account data relating to a period after the investigation period, namely the period from July 2008 to March 2009.

 The procedure before the General Court and the judgment under appeal

12      By application lodged at the Registry of the General Court on 30 December 2009, Hubei sought the annulment of the regulation at issue. The Commission and ArcelorMittal and Others intervened in support of the form of order sought by the Council.

13      In support of its action, Hubei raised three pleas in law. Among those pleas, the third alleged infringement of Articles 3(9), 9(4) and 10(2) of the basic regulation, on the ground that the regulation at issue was based on manifest errors of assessment as to the existence of a threat of material injury.

14      The General Court examined only the third plea raised by Hubei, and upheld it, considering, in essence, that the Council had made a manifest error of assessment (i) in confirming the Commission’s finding that the EU industry was in a vulnerable state at the end of the investigation period and (ii) in holding that in this case there was a threat of injury.

15      The General Court therefore annulled the regulation at issue.

 Procedure before the Court and forms of order sought

16      ArcelorMittal and Others and the Council claim that the Court should:

–        set aside the judgment under appeal,

–        remit the case to the General Court and

–        order Hubei to pay the costs relating to the appeals and to the proceedings at first instance.

17      Hubei contends that the Court should:

–        dismiss the appeals, and

–        order the appellants to pay the costs.

18      Under Article 172 of the Rules of Procedure of the Court of Justice, the Commission lodged a response in which it asked the Court to:

–        set aside the judgment under appeal,

–        remit the case to the General Court and

–        order Hubei to pay the costs.

19      By order of the President of the Court of 28 July 2014, Cases C‑186/14 P and C‑193/14 P were joined for the purposes of the oral part of the procedure and the judgment.

20      By decision of the President of the Court of 21 August 2014, the Italian Republic was given leave to intervene in support of the form of order sought by the Council in Case C‑193/14 P.

 The appeals

 The first part of the third ground of appeal in Case C‑186/14 P, and the first and fourth grounds of appeal in Case C‑193/14 P

 Arguments of the parties

21      ArcelorMittal and Others submit that, in paragraphs 61 and 63 of the judgment under appeal, the General Court erred in law by ascribing to the concept of ‘vulnerability’ an independent meaning and importance that it does not have. The basic regulation does not mention the terms ‘vulnerable’ or ‘vulnerability’, let alone require that the EU industry must be in a ‘vulnerable’ state at the end of the investigation period as a condition for finding a threat of injury.

22      ArcelorMittal and Others add that the grounds set out in paragraphs 64 and 65 of the judgment under appeal, concerning, first, the EU industry’s inclination to invest in and expand production capacity and, secondly, its failure to recover following dumping practices prior to those addressed by the regulation at issue are incorrect.

23      The Council, supported by the Italian Republic, submits that, although Article 3 of the basic regulation does not mention the concept of ‘vulnerability’, that concept may none the less, as in the present case, be used in order to establish the existence of a threat of injury. Thus, the examination of the situation of the EU industry in view of the factors set out in Article 3(5) of the basic regulation began by the assessment of that industry’s vulnerability.

24      The Council also maintains that the General Court, in the judgment under appeal, made an incomplete and selective assessment of the relevant economic factors and indices, such as the level of stocks, sales volume, the market share of the EU industry, employment levels, sales prices, returns on investments and the profitability of that industry. According to the Council, the General Court’s failure to take account of all those factors means that it distorted the evidence submitted to it and did not examine the issue of vulnerability in its entirety.

25      In addition, the Council, supported by the Commission, submits that the examination of the situation of the EU industry and the subsequent analysis relating to the existence of a threat of injury are complex operations of an economic nature. It follows, according to settled case-law of the Court, that the EU institutions have a broad margin of discretion in that respect, the judicial review of which has to be limited to the verification whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. In the judgment under appeal, the General Court did not limit itself to carrying out such a review; it substituted its own assessment of complex economic factors for that of the Council and the Commission.

26      The Commission adds that the General Court committed an error of law by making the concept of ‘vulnerability’ a new legal criterion under the basic regulation.

27      Hubei disputes the arguments put forward by ArcelorMittal and Others and the Council.

 Assessment of the Court

28      The General Court held, in paragraph 66 of the judgment under appeal, that the Council had made a manifest error of assessment in confirming the Commission’s conclusion in the provisional regulation that the EU industry was in a vulnerable situation at the end of the investigation period.

29      In reaching that conclusion, the General Court found, in paragraph 61 of the judgment under appeal, that the economic data on which the Council and the Commission had relied did not support their conclusion, but, on the contrary, as a whole, painted a picture of an industry in a situation of strength, not of fragility or vulnerability.

30      It must be pointed out, at the outset, that the General Court did not regard the vulnerability of the EU industry as a condition enabling a threat of injury to be found.

31      In that respect, it must be noted that, as the Advocate General indicated in paragraph 48 of his Opinion, in order for the EU institutions to be able to determine whether there is a threat of material injury to the EU industry, it is necessary to know the present situation of that industry. It is only in view of that situation that the institutions can determine whether the imminent increase in future dumped imports will cause material injury to the EU industry if no trade defence measure is taken.

32      Moreover, in recital 126 of the provisional regulation, the Commission found that, in the absence of trade defence measures, the Chinese dumped imports would imminently cause material injury to an already vulnerable EU industry. That provisional conclusion was confirmed by the Council in recital 81 of the regulation at issue. It is therefore apparent that the EU institutions took into consideration the alleged situation of vulnerability of the EU industry in their assessment of the threat of harm.

33      In addition, in its appeal, the Council stated that the assessment of vulnerability concerned the situation of the EU industry and constituted the first step of the assessment enabling a finding of a threat of harm.

34      It should be observed, in that respect, that, according to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, inter alia, judgments in Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 29, and Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 44).

35      The Court has also held that the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of the institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions (see, to that effect, judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 68).

36      It follows that, in paragraph 53 of the judgment under appeal, the General Court could consider, without committing an error of law, that it had not only to establish whether the evidence relied on was factually accurate, reliable and consistent, but also to ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusion in recital 89 of the provisional regulation and recital 49 of the regulation at issue, according to which the EU industry was in a vulnerable situation at the end of the investigation period.

37      However, it must be assessed whether, in carrying out that review, the General Court distorted that evidence.

38      It should be noted in that regard that a distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment in Europäisch-Iranische Handelsbank v Council, C‑585/13 P, EU:C:2015:145, paragraph 49 and the case-law cited). Such an assessment falls outwith the scope of the Court’s powers of review in an appeal.

39      The Council maintains that the General Court carried out a selective examination of the evidence that the Council was required to evaluate under Article 3(5) of the basic regulation in order to determine whether the EU industry was in a vulnerable situation. It submits that the General Court committed an error of law by failing to take into account all the factors that had to be considered in order to establish the existence, not only of an injury, but also of a situation of vulnerability.

40      In that regard, it must be recalled that the General Court is not required to provide reasons for each of its choices where it relies on one item of evidence as opposed to another in support of its decision (see, to that effect, judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 161).

41      In the present case, in order to show the development of the EU industry during the investigation period, the General Court noted, in paragraph 59 of the judgment under appeal, the relevant economic factors identified, pursuant to Article 3(5) of the basic regulation, by the Commission in the provisional regulation and confirmed by the Council in the regulation at issue.

42      In paragraph 61 of the judgment under appeal, the General Court considered that, besides the decrease of the EU industry’s market share, the 12 other economic factors identified were all positive and, on the whole, painted a picture of an industry in a situation of strength, not of fragility or vulnerability.

43      Since the General Court merely referred to those factors as identified by the Commission in the provisional regulation, it cannot be claimed that it committed a manifest error in assessing the evidence.

44      It follows that the General Court did not substitute its own assessment for that of the EU institutions and that the Council’s claim alleging distortion of the evidence is unfounded.

45      Furthermore, as regards the argument of the EU institutions that the increase in imports originating in China had limited the EU industry’s inclination to invest and develop its production capacities in order to follow the expansion of the market, repeated by ArcelorMittal and Others, the General Court held, in paragraph 64 of the judgment under appeal, that that argument was not supported by the relevant evidence in the present case.

46      As to the assertions of those institutions that the EU industry had not fully recovered from the dumping carried out before 2006, the General Court considered, in paragraph 65 of the judgment under appeal, that those assertions were not based on any concrete evidence.

47      As the Advocate General pointed out in paragraph 112 of his Opinion, the claims of those institutions, concerning paragraphs 64 and 65 of the judgment under appeal, seek — without identifying any distortion of the evidence — to obtain from the Court of Justice a reassessment of the facts, which falls outside the jurisdiction of the Court in an appeal.

48      Accordingly, those claims must be rejected.

49      Having regard to the foregoing, the first part of the third ground of appeal in Case C‑186/14 P, and the first and fourth grounds of appeal in Case C‑193/14 P must be rejected.

 The first ground of appeal in Case C‑186/14 P and the second ground of appeal in Case C‑193/14 P

 Arguments of the parties

50      ArcelorMittal and Others and the Council take issue with the General Court for having held, at paragraph 63 of the judgment under appeal, that the consideration, in order to determine whether there was a threat of injury, of the deterioration of the economic context was based on an error of law, in so far as, according to Article 3(7) of the basic regulation, factors such as the contraction in demand must not be attributed to the dumped imports

51      In that regard, the appellants maintain that the General Court misinterpreted that provision and that it was wrong to rely on the judgment in Commission v NTN and Koyo Seiko (C‑245/95 P, EU:C:1998:46). Although, in the case that gave rise to that judgment, the EU institutions regarded the existence of an economic recession as a relevant factor for the purposes of examining injury to the EU industry, in the present case they did not invoke such a situation in order to support the finding of a threat of injury. Nor did they attribute the effects of a recession to the dumped imports. On the contrary, the institutions found that exceptionally high demand had disguised the true injurious effect of the dumped imports and that those effects would be revealed if demand returned to normal levels.

52      The Commission submits that the General Court committed an error of law by wrongly merging the analysis of the ‘threat of injury’ with that of the ‘causal link’, even though those two concepts are clearly distinguished in the basic regulation.

53      Hubei disputes the arguments put forward by ArcelorMittal and Others and the Council.

 Assessment of the Court

54      In accordance with Article 3(7) of the basic regulation, known factors other than the dumped imports which at the same time are injuring the EU industry are to be examined to ensure that injury caused by these other factors is not attributed to the dumped imports. One of those factors mentioned in that provision is the contraction in demand.

55      The EU institutions are thus under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and must disregard any injury deriving from other factors, particularly from the contraction in demand (see judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, EU:C:2013:865, paragraph 23, and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 35).

56      Unless the effectiveness of Article 3(7) of the basic regulation is to be compromised, the application of the Court’s case-law resulting from the judgment in Commission v NTN and Koyo Seiko (C‑245/95 P, EU:C:1998:46, paragraph 43), cited in point 63 of the judgment under appeal cannot be excluded solely because, unlike in the present case, the case which gave rise to the judgment in Commission v NTN and Koyo Seiko (C‑245/95 P, EU:C:1998:46) arose in the context of a recession of the EU industry.

57      Furthermore, the appellants’ argument that, contrary to what the General Court held, the foreseeable contraction in demand was examined by the EU institutions, not in the context of the analysis of the causal link between the dumped imports and the injury, but in the analysis of the threat of injury, is based on a misreading of the judgment under appeal.

58      In paragraph 63 of the judgment under appeal, the General Court considered that the finding, relied on by the EU institutions, that the EU industry would be exposed to the possible injurious effects deriving from the dumped imports if the economic trend were to reverse, would allow the determination, if necessary, of a situation of vulnerability in the future. The General Court added that that finding was irrelevant for the purposes of concluding that the EU industry was in a vulnerable situation at the end of the investigation period.

59      It follows that the grounds set out in paragraph 63 of the judgment under appeal are not vitiated by any error of law.

60      It follows from the foregoing that the first ground of appeal in Case C‑186/14 P and the second ground of appeal in Case C‑193/14 P must be rejected.

 The second ground of appeal and the second branch of the third ground of appeal in Case C‑186/14 P and the third ground of appeal in Case C‑193/14 P

 Arguments of the parties

61      ArcelorMittal and Others maintain that the General Court infringed both Article 3(9) of the basic regulation and Article 6(1) of that regulation in basing its reasoning on the inconsistencies between the post-investigation period data and the data gathered during the investigation period. They submit that the use of such post-investigation period data in the examination of the threat of injury is not reliable, since those data reflect the conduct of the producers concerned subsequent to the opening of the anti-dumping procedure. Those data should be used only if they show that the imposition of anti-dumping duties was manifestly inappropriate. However, that is not the case here.

62      In those circumstances, ArcelorMittal and Others submit that it is not necessary to determine whether the Council was entitled to analyse the post-investigation period data. It is immaterial whether those data confirm the forecasts made by the Commission in the provisional regulation on the basis of the investigation period data. Consequently, even if the Council had been wrong to conclude that the post-investigation period data confirmed the conclusions in the provisional regulation, that error could not entail the annulment of the regulation at issue.

63      The Council submits that, in paragraph 92 of the judgment under appeal, the General Court infringed Article 3(9) of the basic regulation by holding that the EU institutions had committed, in the present case, a manifest error of assessment in finding a threat of injury.

64      In that respect, the Council submits that, although the analysis of a threat of injury must be based on facts and on the imminence of a change in circumstances, that analysis is necessarily prospective. Accordingly, the projections of the EU institutions may not come about, without those institutions thereby having committed an error of law in the exercise of their competence to evaluate complex economic situations. It is essential, in the Council’s submission, that the competent authorities be allowed a wide discretion in the complex evaluation of future events in the context of the trade protection policy.

65      The Council observes that examination of the four factors set out in Article 3(9) of the basic regulation revealed ‘a mixed picture’ as regards the existence of a threat of injury. In view of the clear wording of that provision and of the wide discretion enjoyed by the EU institutions in trade defence matters, the EU institutions were entitled to use their discretion to conclude that there was a threat of injury on the basis of that ‘mixed picture’.

66      In that regard, the Council explains that it is because of the ‘mixed’ nature of the situation in question at the end of the investigation period that, unusually, but with the aim of ensuring sound administration, the institutions continued in the present case to monitor the situation in the EU market during a period following the end of the investigation period from July 2008 to March 2009, focusing their attention on the change in circumstances and the principal economic indicators. That monitoring allowed those institutions to avoid erring as regards the development of those markets.

67      Hubei disputes the arguments put forward by ArcelorMittal and Others and the Council.

 Assessment of the Court

68      It is appropriate, in the first place, to assess the claim that the General Court infringed Articles 3(9) and 6(1) of the basic regulation, in that it relied, in paragraph 91 of the judgment under appeal, on the inconsistencies between the estimates in the provisional regulation and the post-investigation period data.

69      It must be recalled that Article 6(1) of the basic regulation provides: ‘following the initiation of the proceeding, the Commission, acting in cooperation with the Member States, shall commence an investigation at [EU] level. Such investigation shall cover both dumping and injury and these shall be investigated simultaneously. For the purpose of a representative finding, an investigation period shall be selected which, in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of the proceeding. Information relating to a period subsequent to the investigation period shall not, normally, be taken into account.’

70      Although it follows from that provision that, as a rule, post-investigation period data are not to be taken into account for the purpose of the investigation of the dumping and the injury, nevertheless, by using the adverb ‘normally’, the EU legislature did not intend to exclude entirely the consideration of such data.

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

72      In those circumstances, the post-investigation period data may be used to confirm or invalidate the forecasts in the provisional regulation and allows, in the former case, the imposition of a definitive anti-dumping measure.

73      However, the EU institutions’ use of those post-investigation period data cannot escape review by the EU judicature.

74      In that respect, it must be recalled that although, in accordance with the case-law cited in paragraphs 34 and 35 of the present judgment, that review must not encroach on the broad discretion of the institutions in the realm of trade defence measures, the General Court does not go beyond the limits of that review by examining whether the evidence on which those institutions based their findings support the conclusions that they reached.

75      It follows that, in the present case, the General Court was entitled to verify whether the post-investigation period data, since they were invoked by the EU institutions, confirmed the forecasts in the provisional regulation and, consequently, justified the imposition of a definitive anti-dumping measure.

76      It is necessary, in the second place, to examine whether the General Court committed an error of law in reviewing the assessment by the EU institutions of the four factors set out in Article 3(9) of the basic regulation to be taken into consideration in determining whether there is a threat of injury.

77      In that respect, it must be noted that, in the context of that review, the General Court merely examined the post-investigation period data relied on by those institutions in the provisional regulation and subsequently in the regulation at issue, without distorting those data.

78      On that basis, the General Court found that the post-investigation period evidence relied on by the EU institutions were not capable of supporting the conclusion that there was a threat of injury and that, consequently, the Council had committed a manifest error of assessment in that regard.

79      Accordingly, the General Court did not ignore the limits of the judicial review which apply in relation to trade defence measures in holding, in paragraph 92 of the judgment under appeal, that the Council had infringed Article 3(9) of the basic regulation in finding that there was a risk of injury.

80      It follows that the second ground of appeal and the second part of the third ground of appeal in Case C‑186/14 P and the third ground of appeal in Case C‑193/14 P must be rejected.

81      In the light of all the foregoing considerations, the appeals brought by the appellants in Cases C‑186/14 P and C‑193/14 P must be dismissed in their entirety.

 Costs

82      In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.

83      Under Article 138(1) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

84      Since ArcelorMittal and Others and the Council have been unsuccessful and Hubei has applied for costs to be awarded against them, ArcelorMittal and Others and the Council must be ordered to pay the costs.

85      Since the Commission has also been unsuccessful, it must be ordered to bear its own costs.

86      Pursuant to Article 140(1) of the Rules of Procedure, also applicable to appeal proceedings by virtue of Article 184(1) of those rules, the Member States and institutions which intervene in the proceedings are to bear their own costs. Consequently, the Italian Republic is to bear its own costs.

On those grounds, the Court (Second Chamber) hereby:

1.      Dismisses the appeals brought in Cases C‑186/14 P and C‑193/14 P;

2.      Orders ArcelorMittal Tubular Products Ostrava a.s., ArcelorMittal Tubular Products Roman SA, Benteler Deutschland GmbH, Ovako Tube & Ring AB, Rohrwerk Maxhütte GmbH, Dalmine SpA, Silcotub SA, TMK-Artrom SA, Tubos Reunidos SA, Vallourec Oil and Gas France SAS, Vallourec Tubes France SAS, Vallourec Deutschland GmbH, Voestalpine Tubulars GmbH & Co. KG, Železiarne Podbrezová a.s. and the Council of the European Union to pay the costs;

3.      Orders the European Commission and the Italian Republic to bear their own costs.

[Signatures]

* Language of the case: English.

© European Union
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