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

JUDGMENT OF THE GENERAL COURT (First Chamber)

20 October 2021 (*)

(Measures that the European Union may take in relation to the combined effect of anti-dumping or anti-subsidy measures with safeguard measures – Importation of cold-rolled flat steel products and hot-rolled flat products of iron, non-alloy or other alloy steel – Modification of regulations imposing anti-dumping or anti-subsidy measures on products subject to safeguard measures – Principle of non-discrimination – Manifest error of assessment)

In Case T‑790/19,

Novolipetsk Steel PAO, established in Lipetsk (Russia), represented by E. Gergondet and P. Vander Schueren, lawyers,

applicant,

v

European Commission, represented by G. Luengo and P. Němečková, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking annulment of Commission Implementing Regulation (EU) 2019/1382 of 2 September 2019 amending certain Regulations imposing anti-dumping or anti-subsidy measures on certain steel products subject to safeguard measures (OJ 2019 L 227, p. 1), in so far as it concerns the applicant,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, M. Jaeger (Rapporteur) and O. Porchia, Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        The applicant, Novolipetsk Steel PAO, is a Russian producer of steel products, including hot-rolled flat products of iron, non-alloy or other alloy steel (‘HRF’) and cold-rolled flat steel products (‘CRF’).

2        On 14 May 2015, the European Commission initiated an anti-dumping investigation concerning imports of certain CRF originating in China and Russia, in accordance with the notice published in the Official Journal of the European Union (OJ 2015 C 161, p. 9).

3        On 10 February 2016, the Commission adopted Implementing Regulation (EU) 2016/181 imposing a provisional anti-dumping duty on imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2016 L 37, p. 1).

4        On 7 July 2016, the Commission initiated an anti-dumping investigation concerning imports of certain HRF originating in, inter alia, Russia, in accordance with the notice published in the Official Journal (OJ 2016 C 246, p. 7).

5        On 29 July 2016, the Commission adopted Implementing Regulation (EU) 2016/1328 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation (OJ 2016 L 210, p. 1) (‘the CRF regulation’). That regulation was published in the Official Journal on 4 August 2016. The definitive anti-dumping duty imposed on imports of CRF produced by the applicant was set at 36.1%.

6        On 5 October 2017 the Commission adopted Implementing Regulation (EU) 2017/1795 imposing a definitive anti-dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Brazil, Iran, Russia and Ukraine and terminating the investigation on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Serbia (OJ 2017 L 258, p. 24) (‘the HRF regulation’). That regulation was published in the Official Journal on 6 October 2017. The definitive anti-dumping duty imposed on imports of HRF produced by the applicant was set at EUR 53.30 per tonne, net, based on an ad valorem anti-dumping duty of 15%, established by reference to the applicant’s dumping margin during the investigation period.

7        On 26 March 2018, the Commission published a notice of initiation of a safeguard investigation concerning imports of steel products (OJ 2018 C 111, p. 29), initially defined by reference to 26 product categories, and then extended to two other categories of steel products by the notice amending the notice of initiation of a safeguard investigation concerning the imports of steel products (OJ 2018 C 225, p. 54), published on 28 June 2018.

8        On 17 July 2018, the Commission adopted Implementing Regulation (EU) 2018/1013 imposing provisional safeguard measures with regard to imports of certain steel products (OJ 2018 L 181, p. 39), which concerned 23 of the 28 categories of steel products which were the subject of that investigation.

9        After extending the duration of the investigation by two months, in accordance with the Notice extending the duration of the safeguard investigation concerning imports of certain steel products (OJ 2018 C 457, p. 14), the Commission adopted Implementing Regulation (EU) 2019/159 of 31 January 2019 imposing definitive safeguard measures against imports of certain steel products (OJ 2019 L 31, p. 27) (‘the regulation on safeguard measures in respect of certain steel products’).

10      By the regulation on safeguard measures in respect of certain steel products, the Commission introduced definitive safeguard measures in the form of tariff quotas for 26 categories of steel products. The applicable duty above the fixed volume was set at 25%.

11      Those definitive safeguard measures apply, inter alia, to:

–        Category No 1 products (non alloy and other alloy hot rolled sheets and strips), which covers all products that are subject to the HRF regulation; and

–        Category No 2 products (non alloy and other alloy cold rolled sheets), which covers all products that are subject to the CRF regulation.

12      Tariff quotas were opened for those two product categories.

13      As regards Product Category No 1, the definitive safeguard measures set a global (or residual) quota. In addition, by Commission Implementing Regulation (EU) 2019/1590 of 26 September 2019 amending Implementing Regulation 2019/159 (OJ 2019 L 248, p. 28), a limit on the global quota use rate which any exporting country may reach individually during a given quarter was introduced, in the form of a cap of 30%.

14      Within that framework, the quantity exempted from the tariff quota applicable to HRF is calculated for all countries for the period from 1 July 2019 to 30 June 2020 and is 8 476 618.01 net tonnes (increasing the following year to 8 730 916.55 net tonnes). Imports from all countries which are subject to the safeguard measures are therefore not subject to any above-quota tariff below the quantitative thresholds, the above-quota tariff applying only when those thresholds are exceeded.

15      As regards Product Category No 2, specific quotas were allocated per country, unlike Product Category No 1. However, no specific quota was allocated to Russia for Product Category No 2. Thus, the imports of CRF from Russia come under the residual or ‘other countries’ quota, which is 1 085 079.91 net tonnes for the period between 1 July 2019 and 30 June 2020 (increasing to 1 117 632.31 net tonnes for the following year.

16      During the safeguard investigation, the applicant made observations on the issue of ‘double remedies’ to which imports of its products could be subject on account of the combined application of anti-dumping duties resulting from the CRF and HRF regulations, on the one hand, and from safeguard measures, on the other.

17      In accordance with the statement in recital 186 of the regulation on safeguard measures in respect of certain steel products, according to which a cumulation of anti-dumping and anti-subsidy measures with safeguard measures may lead to a greater effect than desirable, on 26 April 2019, the Commission published the Notice concerning the potential combined effects of anti-dumping or anti-subsidy measures with the safeguard measures on certain steel products (OJ 2019 C 146, p. 5).

18      On 10 May 2019, the applicant submitted observations on the combined effects of the anti-dumping measures for HRF and CRF with the safeguard measures in respect of certain steel products.

19      On 2 September 2019, on the basis of Regulation (EU) 2015/477 of the European Parliament and of the Council of 11 March 2015 on measures that the Union may take in relation to the combined effect of anti-dumping or anti-subsidy measures with safeguard measures (OJ 2015 L 83, p. 11) (‘the regulation relating to the combined effect’), the Commission adopted Implementing Regulation (EU) 2019/1382 amending certain Regulations imposing anti-dumping or anti-subsidy measures on certain steel products subject to safeguard measures (OJ 2019 L 227, p. 1) (‘the contested regulation’) which concerns, inter alia, HRF and CRF.

20      In that regard, once the residual quotas established in the context of the regulation on safeguard measures in respect of certain steel products for Product Categories No 1 and No 2 have been exhausted and the above-quota duty of 25% applies, the contested regulation amends the rate of the definitive anti-dumping duty levied on imports of the applicant’s products by applying, first, a fixed duty of EUR 0 per tonne for HRF and, second, an ad valorem duty of 11.1% for CRF.

 Procedure and forms of order sought

21      By application lodged at the Registry of the General Court on 13 November 2019, the applicant brought the present action.

22      By a separate document lodged on the same day, the applicant requested that the case be adjudicated under an expedited procedure. On 29 November 2019, the Commission lodged its observations on that request. By decision of 20 December 2019, the First Chamber of the General Court decided not to grant the applicant’s request.

23      On 20 December 2019, the Commission lodged its defence, followed by a supplement on 30 January 2020, in accordance with Article 154(2) of the Rules of Procedure of the General Court.

24      The applicant lodged a reply on 24 March 2020. The Commission lodged a rejoinder on 9 June 2020.

25      The applicant claims, in essence, that the Court should:

–        declare the action admissible;

–        annul Article 1 of the contested regulation, as far as it applies to the applicant;

–        maintain the effects of the contested regulation until the Commission takes the measures to give effect to the judgment to be handed down, in accordance with the second paragraph of Article 264 TFEU;

–        order the Commission to pay the costs.

26      The Commission contends that the Court should:

–        dismiss the action as inadmissible and order the applicant to pay the costs;

–        in the alternative, dismiss the action as unfounded and order the applicant to pay the costs.

27      Since the parties did not request a hearing, the Court (First Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

 Law

 Admissibility of the action

28      Without raising an objection of inadmissibility by way of a separate document, the Commission nevertheless disputes the admissibility of the present action, arguing that the applicant has neither an interest in bringing proceedings nor standing to bring proceedings. The applicant submits that it has an interest in bringing proceedings and standing to bring proceedings against the contested regulation.

29      In view of the arguments of the parties, consideration of both the admissibility and the merits of the action requires a ruling on the effects of the contested regulation, in particular the consequences of the fact that the measures in that regulation suspending the anti-dumping duties are conditional upon the tariff quota thresholds being exceeded.

30      In that context, it should be recalled that the EU judicature is entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of an action on the merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52, and of 22 May 2007, Mebrom v Commission, T‑216/05, EU:T:2007:148, paragraph 60 and the case-law cited).

31      Thus, in the circumstances of the present case, the Court considers that, in the interests of procedural economy, it is necessary to examine at the outset the applicant’s claim for annulment and the merits of the pleas on which it relies in support of that claim, without first ruling on the admissibility of the action, since the action is, in any event and for the reasons set out below, unfounded.

 Substance

32      The applicant raises two pleas in support of its action.

33      By its first plea, the applicant submits that, by adopting the contested regulation, the Commission imposed different anti-dumping duties depending on whether or not the quotas set by the safeguard measures have been exhausted. Not only does the Commission have no power to act in that way, but, in addition, such conduct constitutes an infringement of Article 9(5) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic anti-dumping regulation’).

34      By its second plea in law, the applicant submits that, by altering the anti-dumping duties only once those quotas are exhausted, the Commission failed to take into account the very effect of the imposition of those duties combined with the effect of the existing anti-dumping duties, thereby making a manifest error of assessment amounting to an infringement of Article 1(1) of the regulation relating to the combined effect and, consequently, imposing, by the contested regulation, a double remedy in breach of Article 9(5) of the basic anti-dumping regulation.

 The first plea in law, alleging that the Commission did not have power to adopt the contested regulation and alleging infringement of Article 1(1) of the regulation relating to the combined effect and of Article 9(5) of the basic anti-dumping regulation

35      By its first plea in law, the applicant submits that the Commission should not, by the contested regulation, have made suspension of the anti-dumping duties conditional on the exhaustion of the quotas provided for in the definitive safeguard measures.

36      The applicant submits, in essence, that, by the contested regulation, the Commission amended the applicable anti-dumping duties and that that amendment is incompatible with the amendments authorised by the basic anti-dumping regulation. The amendment at issue results in provision being made for the levying of anti-dumping duties, in whole or in part, on the basis of quantitative thresholds, thus creating a difference in treatment concerning imports of its products into the European Union.

37      According to the applicant, Article 9(5) of the basic anti-dumping regulation does not permit such a difference in treatment, since the levying of anti-dumping duties must be carried out ‘consistently’ on all imports of the product concerned and cannot therefore depend on certain thresholds, otherwise they would be discriminatory.

38      Since the regulation relating to the combined effect should be interpreted consistently with the basic anti-dumping regulation, the amendments permitted by the former regulation cannot be interpreted in such a way as to render them incompatible with the amendments authorised by the latter regulation.

39      Thus, the applicant submits that, in order to act in accordance with Article 1(1) of the regulation relating to the combined effect and with Article 9(5) of the basic anti-dumping regulation, the Commission should have suspended or reduced the level of the anti-dumping duties on HRF and CRF throughout the entire period during which the relevant safeguard measures apply, on a non-discriminatory basis and without differentiating based on whether or not the tariff quotas for Product Categories No 1 and No 2 are exhausted.

40      Consequently, according to the applicant, the Commission did not have competence to act in the way that it did in the contested regulation, since there was no legal basis empowering it to set anti-dumping duties on HRF and CRF at different levels according to whether or not the quota for Product Categories No 1 or No 2, in the context of safeguard measures in respect of certain steel products, is exhausted.

41      The Commission disputes the applicant’s arguments.

42      It should be noted that the contested regulation was adopted on the basis of the regulation relating to the combined effect.

43      It is apparent from recital 8 of the regulation relating to the combined effect that it seeks to ensure that the objectives of the safeguard tariff measures and anti-dumping or anti-subsidy measures can be met without denying the relevant exporting producers access to the EU market and, therefore, to lay down specific provisions to enable the Commission, where it considers it appropriate, to take action with a view to ensuring that a combination of anti-dumping or anti-subsidy measures with safeguard tariff measures on the same product does not have such an effect.

44      It is also apparent from Article 1(1)(a) to (c) of the regulation relating to the combined effect that, where it considers that a combination of anti-dumping or anti-subsidy measures with safeguard tariff measures on the same imports could lead to effects greater than is desirable in terms of the European Union’s trade defence policy, the Commission may adopt one or more measures consisting in, inter alia, amending, suspending or repealing anti-dumping measures, providing for total or partial exemption from anti-dumping duties or taking any other special measure.

45      In its first plea in law, the applicant submits that the Commission, when it adopted the contested regulation, should have interpreted the regulation relating to the combined effect in accordance with the basic anti-dumping regulation. Article 9(5) of the basic anti-dumping regulation prohibits the Commission from introducing a difference in treatment of imports of its products in terms of the levying of anti-dumping duties.

46      In that regard, it is apparent from the case-law that the principle of equal treatment is given particular application in the context of Article 9(5) of the basic anti-dumping regulation, which requires that the anti-dumping duty, in the appropriate amounts in each case, be imposed on a non-discriminatory basis on imports of a product from all sources (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 157).

47      It should also be noted that the principles of equality and non-discrimination, set out in Article 21 of the Charter of Fundamental Rights of the European Union, require that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such treatment is objectively justified (see judgment of 30 April 2015, VTZ and Others v Council, T‑432/12, not published, EU:T:2015:248, paragraph 62 and the case-law cited).

48      In the present case, the regulation on safeguard measures in respect of certain steel products lays down thresholds which, when exceeded, result in an above-quota duty of 25% being applied to imports of the products concerned.

49      In accordance with the HRF regulation, for Product Category No 1, all imports into the European Union of the applicant’s products are subject to an anti-dumping duty of EUR 53.30 per tonne, a figure which is based on an ad valorem duty rate of 15% and is equivalent to that rate (see paragraph 6 above). When the trigger event provided for in the regulation on safeguard measures in respect of certain steel products is activated, that is to say, when the thresholds are reached, an additional duty of 25% is applied to imports into the European Union of, inter alia, the applicant’s products. The latter regulation thus creates a difference in treatment between imports included in the quota and those exceeding it, the legality of which goes beyond the scope of the present action brought against the contested regulation.

50      As a result of the application of the regulation on safeguard measures in respect of certain steel products, imports of HRF produced by the applicant are thus divided into two separate categories: those below the threshold (imports where the tariff quotas are not exhausted; ‘situation No 1’) and imports above the threshold (imports where the tariff quotas are exhausted; ‘situation No 2’).

51      In accordance with the principle of non-discrimination, imports of HRF produced by the applicant within each of those two categories (all imports falling within situation No 1 or all imports falling within situation No 2) must be treated in the same way. By contrast, the two categories of imports may be treated differently, since that principle does not apply as between the two situations (situation No 1 compared with situation No 2), because they are not the same.

52      The framework established by the contested regulation leads to the same treatment of, on the one hand, all imports of HRF produced by the applicant which are in situation No 1 (application of the existing anti-dumping duty) and, on the other hand, all imports of HRF produced by the applicant which are in situation No 2 (application of the 25% safeguard duty and suspension of the existing anti-dumping duty of 15%).

53      The same reasoning applies to imports of CRF produced by the applicant.

54      Consequently, even if the applicant’s approach were followed, namely that the regulation relating to the combined effect must be interpreted in the light of the basic anti-dumping regulation, and in particular Article 9(5) of that regulation, it would not be possible to identify discriminatory treatment of imports of the applicant’s relevant products as a result of the application of the contested regulation.

55      Moreover, in the absence of discrimination, the applicant’s arguments relating, first, to the classification of the measures put in place by the contested regulation and, second, to the Commission’s competence to adopt those measures are irrelevant.

56      In the light of the foregoing, the first plea in law must be rejected.

 The second plea in law, alleging that the Commission made a manifest error of assessment by adopting the contested regulation, and alleging infringement of Article 1(1) of the regulation relating to the combined effect and of Article 9(5) of the basic anti-dumping regulation

57      The second plea in law is divided into three parts. By the first part, the applicant submits that the Commission should have put in place ‘mitigating measures’ not only from when the above-quota duty applies, but also before the tariff quotas are exhausted, since the mere existence of the regulation on safeguard measures in respect of certain steel products is sufficient to give rise to effects greater than is desirable in terms of the European Union’s trade defence policy within the meaning of Article 1(1) of the regulation relating to the combined effect. By the second part, the applicant submits that the establishment of quantitative caps by the regulation on safeguard measures in respect of certain steel products has effects in itself, with the result that the Commission’s view that only the application of the above-quota duty has an effect greater than is desirable is based on a manifest error of assessment. By the third part, the applicant submits that full maintenance of the anti-dumping duties is not justified, given that the anti-dumping duties and the regulation on safeguard measures in respect of certain steel products are intended to remedy the same injury caused to the EU industry, in breach of Article 1(1) of the regulation relating to the combined effect and of Article 9(5) of the basic anti-dumping regulation.

–       Preliminary observations on the examination of the second plea in law

58      By its second plea in law, the applicant disputes the appropriateness of the measures laid down in the contested regulation.

59      The applicant criticises the fact that the anti-dumping duties apply to HRF and CRF products until the tariff quotas set by the safeguard measures are exhausted, since, according to the applicant, the very establishment of those quotas already produces effects which, combined with the existing anti-dumping measures, are greater than intended or desirable in terms of the European Union’s trade defence policy, in that they deny the applicant access to the EU market. There is no reason justifying the maintenance of those anti-dumping duties, since the injury which they are supposed to remedy is already covered by the safeguard measures, with the result that the contested regulation puts in place a double remedy, in breach of Article 9(5) of the basic anti-dumping regulation. The fact that the Commission failed to take into account, first, the nature of the effects already resulting from the establishment of tariff caps and, second, the fact that the existing safeguard measures and anti-dumping measures are intended to remedy the same injury constitutes a manifest error of assessment and an infringement of Article 1(1) of the regulation relating to the combined effect.

60      Thus, the applicant submits, in essence, that the Commission made a manifest error of assessment, resulting in an infringement of Article 1(1) of the regulation relating to the combined effect and of Article 9(5) of the basic anti-dumping regulation, by failing to take into account the effects which the safeguard measures for certain steel products have by virtue of their mere existence, and therefore even before the thresholds triggering the application of the above-quota duty of 25% are reached.

61      Accordingly, the second plea in law is based on a demonstration that, before the imposition of the additional duty of 25%, those safeguard measures actually give rise to effects that satisfy the level of intensity required by the applicable provisions, effects which the Commission should have taken into account in its analysis of the combined effects, failing which it would make a manifest error of assessment. That is, in essence, the subject matter of the second part of the second plea in law.

62      In that regard, it should be noted that the first part of the second plea in law seeks only to demonstrate the potential effects of the safeguard measures before the actual application of the above-quota duty, not their actual existence, nor, a fortiori, the fact that such effects entail the requisite degree of intensity.

63      Consequently, the second part of the second plea in law must be examined first.

–       The second part of the second plea in law, alleging infringement of Article 1(1) of the regulation relating to the combined effect as a result of a manifest error of assessment by the Commission

64      The applicant submits that the Commission made a manifest error of assessment in concluding that only the application of the above-quota duty has an effect that is greater than is desirable, whereas the tariff quotas, by virtue of their mere existence, and, therefore in themselves, already have significant restrictive effects on the imports in question.

65      In that regard, first, the applicant submits that the introduction of tariff quotas itself gives rise to considerable uncertainty on the market. In support of its assertion, it produces the statement made by an importer of steel products into the European Union in the context of the procedure for the review of safeguard measures carried out in 2019.

66      Second, the applicant argues that the tariff quotas themselves led to a decrease in imports to the European Union of HRF and CRF products from Russia. In support of its assertion, it produces a number of statistical data compiled by the Statistical Office of the European Union (Eurostat).

67      The applicant concludes that the combined imposition of tariff quotas and anti-dumping measures on HRF and CRF has the effect of denyingexporters access to the EU market, even before the application of the above-quota tariffs.

68      In that regard, it must be observed that it necessarily follows from Article 1(1) of the regulation relating to the combined effect that the recognition, first, that the combination of trade defence measures may produce effects before the tariff quotas are exhausted and, second, that those effects exist in the present case cannot lead to the classification of a manifest error of assessment if those effects do not satisfy the requisite degree of intensity, that is to say that they are greater than intended in terms of the European Union’s trade defence policy.

69      It is therefore necessary to examine whether the applicant fulfilled its obligation to produce evidence demonstrating the existence of effects which satisfy the required degree of intensity before the exhaustion of the tariff quotas.

70      In support of its argument, the applicant relies on two types of evidence, namely, first, Eurostat statistics and, second, the statement made by an importer of steel products into the European Union in the context of the procedure for the review of safeguard measures carried out in 2019.

71      As regards the Eurostat statistics, the applicant proposes a comparative assessment of the last six-month period preceding the application of the safeguard measures for certain steel products, namely the period covering January to June 2018, when only anti-dumping duties applied to HRF and CRF, and the same six-month period a year later, namely the period from January to June 2019, when the two types of trade defence measures applied.

72      It is apparent from that comparison that, in 2019, imports into the European Union from Russia were below 19% for Product Category No 1 and 67% for Product Category No 2, whereas the total imports were rather stable (+ 1.77% for Product Category No 1 and ‑ 2% for Product Category No 2).

73      The Commission disputes the relevance of the applicant’s choice as regards the period from January to June 2019, in so far as the provisional safeguard measures for imports of certain steel products were applied from 17 July 2018, and proposes a comparison of the trend in imports of Product Categories No 1 and No 2 over a longer period, that is to say from 2013 to 2019.

74      It is apparent from that comparison that imports of products originating in Russia which were subject to injurious dumping significantly decreased after the imposition of anti-dumping duties on CRF and HRF in 2016 and 2017 respectively, that is, well before the imposition of safeguard measures in 2018, and increased again after the initiation of the safeguard investigation in respect of imports of steel products in March 2018.

75      In the light of those statistical comparisons, it should be noted that the analysis proposed by the Commission makes it possible to understand the trend in those imports of HRF and CRF more easily than the trend proposed by the applicant, which reaches its limits because of the excessively narrow time frame covered by a same six-month period over two consecutive years.

76      Thus, for the Product Category No 1, although the applicant’s analysis shows a small decrease in imports from Russia, whereas a small increase in the total volume of imports is noted, the Commission’s broader approach shows the following:

–        first, a significant increase in volumes from Russia for 2018, when the two types of trade defence measures were in place, that is to say since 7 October 2017 for the anti-dumping measures and since 19 July 2018 for the provisional safeguard measures;

–        second, a relative stagnation of the share of imports from Russia in relation to the total volume of imports between 2018 and 2019, that share being 19% in 2019 whereas it was 20% in the previous year. As the Commission submits in the rejoinder, the decrease in imports of the applicant’s products in 2019 as compared with 2018 must be placed in the context of a more general reduction in imports over the same period;

–        third, almost twice the volume of imports of the applicant’s products in 2019, although it was subject to the safeguard measures and anti-dumping measures, compared with 2017, when it was subject only to anti-dumping measures, as was still the case in the first six months of 2018.

77      Similarly, for Product Category No 2, whereas the narrow time frame adopted by the applicant in its analysis seems to confirm its comments, the more general time frame proposed by the Commission shows a constant fall in imports from Russia since 2016, bearing in mind that the CRF regulation entered into force in July 2016.

78      It is thus apparent from an examination of the statistical data provided and discussed by the parties that the effects alleged by the applicant have not been proved to the requisite legal standard. Accordingly, the applicant cannot reasonably argue that those data show that effects greater than intended in terms of the European Union’s trade defence policy and objectives arose from when the definitive safeguard measures entered into force, irrespective of the application of the above-quota duty, with the result that the measures suspending the anti-dumping duties adopted in the context of the contested regulation should not have been made conditional on the exhaustion of the quotas.

79      That assessment is not called into question by the observations of the applicant, who merely describes the comparison proposed by the Commission as being meaningless on the ground that, first, imports during the period between 2013 and 2017 reflect the effects of the imposition of only anti-dumping measures and, second, the safeguard measures apply on the basis of a year running from July to June.

80      Therefore, it cannot be concluded that there was a manifest error of assessment on the part of the Commission in the analysis which led to the adoption of the contested regulation.

81      Consequently, and subject to its admissibility, which is disputed by the Commission, it does not appear necessary to examine the statement of the importer of steel products into the European Union submitted by the applicant in support of its arguments. In view of the analysis of the statistical data carried out in paragraphs 74 to 77 above, the mere reliance on that document cannot rebut the finding that the trend in trade flows does not demonstrate that there were effects greater than intended in terms of the European Union’s trade defence policy and objectives once the definitive safeguard measures in respect of certain steel products entered into force, irrespective of the application of the above-quota duty, with the result that the measures suspending anti-dumping duties adopted in the context of the contested regulation should not have been subject to the exhaustion of the quotas.

82      In the light of the foregoing, since the applicant has not demonstrated the existence of effects which satisfy the requisite level of intensity, it must be concluded, in accordance with the approach adopted in paragraph 68 above, that the second part of the second plea in law is unfounded. That conclusion also leads to the rejection of the first part of the second plea in law, in accordance with the considerations set out in paragraph 62 above.

–       The third part of the second plea in law, alleging infringement of Article 1(1) of the regulation relating to the combined effect, and of Article 9(5) of the basic anti-dumping regulation as a result of the Commission’s application of a double remedy

83      The applicant disputes the finding, in recital 11 of the contested regulation, that, before the application of the above-quota duty, the full application of the anti-dumping measures is still necessary and justified, in order to remedy the effect of unfairly dumped imports.

84      In essence, the applicant claims, first, that making the mitigation measures applicable only after the application of the above-quota duty shows a manifest error of assessment, in so far as the Commission failed to take into account the combined effects of the two types of trade defence measures, thus imposing an unfair burden on the exporters concerned and denying them access to the EU market in breach of Article 1(1) of the regulation relating to the combined effect. Second, the applicant submits that the full maintenance of the existing anti-dumping duties before the exhaustion of the tariff quotas leads to the application of a double remedy because of the effect of the existing anti-dumping duties, on the one hand, and the effect of the introduction of safeguard measures, on the other hand, in breach of Article 9(5) of the basic anti-dumping regulation, which provides that an anti-dumping duty must be of an appropriate amount in each case.

85      In the light of the foregoing, it must be held that the applicant’s line of argument presupposes that the introduction of tariff quotas has effects even before the thresholds of those quotas are reached, effects which the Commission should have taken into account.

86      However, since it has been found, in the examination of the second part of the second plea in law, that the applicant has not demonstrated to the requisite legal standard that there are effects before the application of the above-quota duty that the Commission should have corrected, that argument is irrelevant.

87      In the light of the foregoing, the third part of the second plea in law is unfounded and, therefore, the second plea in law must be rejected in its entirety.

88      In the light of those considerations, the action must be dismissed in its entirety.

 The request that the effects of the contested regulation be maintained

89      Since it has been held that the action must be dismissed, the request to maintain the effects of the contested regulation has become devoid of purpose.

 Costs

90      Under Article 134(1) 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.

91      Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Novolipetsk Steel PAO to bear its own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 20 October 2021.

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.