JUDGMENT OF THE COURT (Tenth Chamber)

29 July 2019 ( *1 )

(Appeal — Dumping — Imposition of a definitive anti-dumping duty on certain products originating in China — Implementing Regulation (EU) 2015/1429 — Regulation (EC) No 1225/2009 — Article 2(7)(a) — Normal value — Determination on the basis of the price in a market economy third country — Selection of the appropriate third country — Market economy third country which is subject to the same investigation — Adjustments)

In Case C‑436/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 July 2018,

Shanxi Taigang Stainless Steel Co. Ltd , established in Taiyuan (China), represented by E. Vermulst and J. Cornelis, advocaten,

appellant,

the other parties to the proceedings being:

European Commission , represented by J.-F. Brakeland and A. Demeneix, acting as Agents,

defendant at first instance,

Eurofer, Association européenne de l’acier, ASBL , established in Luxembourg (Luxembourg), represented by J. Killick, Barrister, and G. Forwood and C. Van Haute, avocates,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of C. Lycourgos (Rapporteur), President of the Chamber, E. Juhász and M. Ilešič, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1By its appeal, Shanxi Taigang Stainless Steel Co. Ltd asks the Court to set aside the judgment of the General Court of the European Union of 23 April 2018, Shanxi Taigang Stainless Steel v Commission (T‑675/15, not published, ‘the judgment under appeal’, EU:T:2018:209 ), by which the General Court dismissed its action for annulment in part of Commission Implementing Regulation (EU) 2015/1429 of 26 August 2015 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan ( OJ 2015 L 224, p. 10 ) (‘the regulation at issue’).

Legal context

2Article 2, entitled ‘Determination of dumping’, of 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 ; ‘the basic regulation’) provided, in paragraphs 7 and 10 thereof:

‘7.

(a)

In the case of imports from non-market economy countries, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Community, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin.

An appropriate market economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits; where appropriate, a market economy third country which is subject to the same investigation shall be used.

…

(b)

In anti-dumping investigations concerning imports from … any non-market-economy country which is a member of the [World Trade Organisation (WTO)] at the date of the initiation of the investigation, normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c), that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.

…

10. A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. …’

Background to the dispute

3The appellant is a company established in China, which primarily manufactures and sells steel products, including stainless steel cold-rolled flat products.

4Following a complaint lodged on 13 May 2014 by Eurofer, Association européenne de l’acier, ASBL (‘Eurofer’), the European Commission published, on 26 June 2014, a notice of initiation of an anti-dumping proceeding concerning imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan ( OJ 2014 C 196, p. 9 ).

5The investigation of dumping and injury to the European Union industry covered the period from 1 January to 31 December 2013. The examination of trends relevant for the assessment of that injury covered the period from 1 January 2010 to 31 December 2013.

6For the purposes of determining dumping and injury, the notice of initiation provided for sampling of exporting producers from China and Taiwan and Union producers. The appellant was selected as part of the sample which included four exporting producers from China, composed in the context of the investigation.

7In the notice of initiation, the Commission informed the interested parties that it envisaged the United States as an appropriate market economy third country within the meaning of Article 2(7)(a) of the basic regulation (‘the analogue country’). It invited the interested parties to comment on the appropriateness of that choice, while informing them that, according to the information available to it, the other market economy countries that could be considered for the selection of the analogue country were the Republic of India, the Republic of South Africa, the Republic of Korea and Taiwan.

8The appellant did not submit a claim for market economy treatment (‘MET’) under Article 2(7)(b) of the basic regulation. On 6 July 2014, it submitted its comments on the choice of the analogue country, contending that the United States represented an inappropriate choice, and suggesting that Taiwan be chosen. On 13 February 2015, a hearing took place with the Commission services following a request by the appellant.

9On 24 March 2015, the Commission adopted Implementing Regulation (EU) 2015/501, imposing a provisional anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan ( OJ 2015 L 79, p. 23 ). That regulation imposed a provisional anti-dumping duty of 24.3% on the appellant’s exports of those products to the European Union as from 26 March 2015 for a period of 6 months.

10Following several exchanges with the appellant, in which the appellant reiterated its objections to the choice of the United States, rather than Taiwan, as analogue country, the Commission, on 26 August 2015, adopted the regulation at issue, which amended Implementing Regulation 2015/501 and imposed an anti-dumping duty of 24.4% on imports into the European Union of those products manufactured by the appellant.

The procedure before the General Court and the judgment under appeal

11By application lodged at the Registry of the General Court on 20 November 2015, the appellant brought an action for partial annulment of the regulation at issue.

12By order of 19 July 2016, the President of the First Chamber of the General Court granted Eurofer leave to intervene in support of the form of order sought by the Commission.

13In support of its action, the appellant put forward three pleas in law. By its first plea, divided into two parts, alleging infringement of Article 2(7)(a) of the basic regulation, the appellant submitted, primarily, that the Commission had infringed that provision by selecting the United States as analogue country rather than choosing Taiwan and, in the alternative, that the Commission had failed, in the context of constructing normal value pursuant to that provision, to make the required adjustments on account of differences in the production process and regarding access to raw materials. By its second plea, the appellant submitted that the Commission had infringed Article 2(10) of the basic regulation by refusing to make required adjustments for internal transport costs of one of the United States exporting producers. By its third plea, divided into two parts, the appellant argued that the Commission had infringed Article 3(2), (6) and (7) of the basic regulation, first, in respect of the assessment of the causal link between the imports from China and Taiwan and their impact on the Union industry and, secondly, in attributing the injury caused to the Union industry to those imports.

14By the judgment under appeal, the General Court rejected each of those pleas in law and, accordingly, dismissed the action in its entirety.

Forms of order sought by the parties before the Court of Justice

15The appellant claims that the Court should, primarily:

–

set aside the judgment under appeal;

–

annul the regulation at issue in so far as it concerns the appellant; and

–

order the Commission to pay the costs of the proceedings both on appeal and at first instance.

16In the alternative, the appellant claims that the Court should refer the case back to the General Court and reserve the costs.

17The Commission and Eurofer contend that the Court should dismiss the appeal and order the appellant to pay the costs.

The appeal

18In support of its appeal, the appellant relies on two grounds, alleging misinterpretation of Article 2(7)(a) of the basic regulation.

The first ground of appeal

Arguments of the parties

19By its first ground of appeal, the appellant submits that, in paragraphs 34 to 37 of the judgment under appeal, the General Court misinterpreted the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation with regard to the choice of the analogue country.

20In support of that ground of appeal, the appellant submits that it is clear from the wording of that provision, which provides that ‘where appropriate, a market economy third country which is subject to the same investigation shall be used’, that the Commission is under an obligation to choose, as analogue country, a country that is subject to the same anti-dumping investigation when there is such a country, the only exception, introduced by the expression ‘where appropriate’, being the case in which that country is not appropriate. In that case, the Commission should find that that country is not appropriate and explain the reasons why that is the case. On the other hand, it does not follow from that provision that, in order to be selected as analogue country, a country that is subject to the same investigation should necessarily be the ‘most’ appropriate country where other solutions are possible.

21The General Court nevertheless adopted such an interpretation in concluding, in paragraph 37 of the judgment under appeal, that the Commission correctly carried out a comparative analysis between the United States and Taiwan in order to determine the more appropriate analogue country of the two, even though Taiwan was subject to the same investigation as the People’s Republic of China, unlike the United States.

22In considering, in essence, that, when alternative solutions are possible, a market economy third country which is subject to the same investigation is to be used if it is the most appropriate country, the General Court has, first, introduced into the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation an additional condition that is not contained in the wording of that provision, which is not legally permissible, as is clear from the report of the Appellate Body of the World Trade Organisation (WTO) of 6 October 2016 in the case ‘European Union — Anti-Dumping Measures on Biodiesel from Argentina’ (WT/DS 473/AB/R, point 6.30). Secondly, the interpretation adopted by the General Court makes that provision meaningless by rendering nugatory the legal obligation laid down therein, consisting in selecting, where appropriate, a country that is subject to the same investigation. The obligation to select the most appropriate analogue country already follows from the first sentence of the second subparagraph of Article 2(7)(a) of the basic regulation, with the result that it cannot be considered that the second sentence of that subparagraph merely reiterates the same obligation.

23In addition, the appellant submits that the judgments of 22 October 1991, Nölle ( C‑16/90 , EU:C:1991:402 ), of 22 March 2012, GLS ( C‑338/10 , EU:C:2012:158 , paragraph 29 ), and of 10 September 2015, Fliesen-Zentrum Deutschland ( C‑687/13 , EU:C:2015:573 ), which are cited in paragraphs 30 to 33 of the judgment under appeal, concerned situations in which there was no market economy country that was subject to the same investigation. Thus, those judgments are relevant only for the purpose of interpreting the first sentence of the second subparagraph of Article 2(7)(a) of the basic regulation, which governs the choice of an analogue country where there is no market economy country that is subject to the same investigation, and not for the purpose of interpreting the second sentence of that subparagraph.

24Lastly, the appellant submits, in essence, that, contrary to what the General Court held in paragraph 37 of the judgment under appeal, compliance with the obligation to select as analogue country a country that is subject to the same investigation is not liable to result in non-compliance with the EU institutions’ obligation to try to find an analogue country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export. In accordance with the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation and, more specifically, the use of the expression ‘where appropriate’, a third country which is subject to the same investigation could not be selected as analogue country if it is not appropriate, as would be the case if prices were not formed there in circumstances which are as similar as possible to those in the country of export.

25As regards the consequences of the error of law allegedly committed by the General Court, the appellant submits, in essence, that the facts are sufficiently clear to enable the Court of Justice itself to give final judgment in the matter. It is not in dispute that there was, in the present case, a market economy country that was subject to the same investigation, namely Taiwan. At no time did the Commission contend that that country was not appropriate. It argued only that the United States was a more appropriate choice. Accordingly, the Commission was under a legal obligation to select Taiwan as analogue country and failure to comply with that obligation must lead to the annulment of the regulation at issue.

26The Commission contends that the first ground of appeal must be rejected as unfounded and, in any event, as ineffective. Eurofer, which questions whether that ground of appeal is admissible, to the extent that it corresponds to a head of claim that did not appear in the application at first instance and was added only at the stage of the reply before the General Court, also contends that that ground of appeal must, in any event, be rejected as ineffective and unfounded.

Findings of the Court

27Without its being necessary to rule on whether the first ground of appeal is admissible, that ground must, in any event, be rejected as unfounded.

28To that end, it should be borne in mind that, in accordance with the first subparagraph of Article 2(7)(a) of the basic regulation, in the case of imports from non-market economy countries, in derogation from the rules set out in Article 2(1) to (6) of that regulation, normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country, that is to say, according to the analogue country method (judgments of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13 , EU:C:2015:573 , paragraph 48 , and of 28 February 2018, Commission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P , EU:C:2018:132 , paragraph 64 ). The second subparagraph of Article 2(7)(a) of the basic regulation provides, in the first sentence thereof, that the analogue country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection and, in the second sentence thereof, that, where appropriate, a market economy third country which is subject to the same investigation is to be used.

29The arguments put forward by the appellant in support of its first ground of appeal are based on an isolated reading of the second sentence of the second subparagraph of that Article 2(7)(a). As the Commission in essence contends, that second sentence must be read in the light of the first sentence of that subparagraph, as interpreted by the case-law of the Court, that first sentence being, contrary to what the appellant appears to argue, relevant even if a market economy country is subject to the same investigation.

30In that regard, it is apparent from that case-law, first, that the choice of analogue country falls within the broad discretion enjoyed by the EU institutions in the sphere of the common commercial policy, by reason of the complexity of the economic and political situations which they have to examine (see, to that effect, judgments of 22 October 1991, Nölle, C‑16/90 , EU:C:1991:402 , paragraph 11 ; of 29 May 1997, Rotexchemie, C‑26/96 , EU:C:1997:261 , paragraph 10 ; and of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13 , EU:C:2015:573 , paragraph 44 ).

32It may, therefore, be inferred from the second subparagraph of Article 2(7)(a) of the basic regulation that where the choice of several countries is conceivable in the light of the reliable information made available, the competent institution is to carry out a comparative analysis of those various countries and select the one in which the price of the product similar to the product concerned is formed in circumstances which are as similar as possible to those in the country of export. From that perspective, contrary to what is argued, in essence, by the appellant, the second sentence of that subparagraph does not preclude that institution from carrying out such a comparative analysis, including where a market economy country is subject to the same investigation, and selecting, on that basis, the most appropriate country in the exercise of the discretion enjoyed by it in accordance with the case-law referred to in paragraph 31 of the present judgment.

33Thus, it is apparent from the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation that when a market economy country is subject to the same investigation, the competent institution must have due regard thereto among the possible choices and examine, with all the care required, whether that country is an appropriate choice. In the present case, while the appellant submits that the Commission did not argue that Taiwan was not an appropriate choice, it does not dispute the finding, made, in essence, by the General Court in paragraphs 34 and 35 of the judgment under appeal, that the Commission, in that instance, examined the situation of that country among the possible alternatives.

34It follows from the foregoing that, as the General Court correctly stated in paragraph 37 of the judgment under appeal and contrary to the appellant’s claims, the Commission was not required to select Taiwan as being the appropriate analogue country solely because it was a market economy third country that was subject to the same investigation as China, which would have had the effect of preventing that institution from taking into account the other conceivable options and carrying out a comparative analysis between Taiwan and those other options, which included, in the present case, the United States, in order to determine which was the more appropriate country of the two. Any interpretation to the contrary would not only disregard the discretion enjoyed by that institution in the selection of the analogue country, but also, as the General Court rightly pointed out in paragraph 37 of the judgment under appeal, infringe the obligation incumbent upon that institution, referred to in paragraph 32 of the present judgment, to try to find, whilst taking account of the possible alternatives, a market economy third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export.

35That conclusion is borne out by the analysis of the origin of Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community ( OJ 1994 L 349, p. 1 ), which introduced into the basic EU rules on anti-dumping the requirement set out in the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation. The explanatory memorandum of the proposal submitted by the Commission with a view to the adoption of Regulation No 3283/94 (COM(1994) 414 final) stated, with regard to that provision, of which the final wording used by the EU legislature is identical to that proposed by the Commission, that, in the selection of the analogue country, preference ‘may’ be given to a country that is subject to the same investigation, provided that it fulfils the criteria of a reasonable basis, which implies that there is no obligation to select that country.

36Contrary to the appellant’s claims, the interpretation, set out in paragraphs 32 to 34 of the present judgment, of the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation does not result in the addition to that second sentence of a condition which does not appear in that second sentence or in that sentence being deprived of its practical effect, but is based on an overall reading of the second subparagraph of Article 2(7)(a) of that regulation.

37It follows that, in so far as no conditions have been added by the General Court to the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation, the appellant’s argument that it is clear from the report of the Appellate Body of the WTO of 6 October 2016 — in the case ‘European Union — Anti-dumping Measures on Biodiesel from Argentina’ (WT/DS 473/AB/R) and relating to the interpretation of Article 2.2.1.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) ( OJ 1994 L 336, p. 103 ), included in Annex 1A to the Agreement establishing the WTO ( OJ 1994 L 336, p. 3 ) — that it is not legally permissible to add a condition not contained in the wording of the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation, must also be rejected.

38It follows from the foregoing that the first ground of appeal must be rejected as unfounded.

The second ground of appeal

Arguments of the parties

39By its second ground of appeal, the appellant submits that the General Court misinterpreted Article 2(7)(a) of the basic regulation in finding, in paragraphs 60 to 65 of the judgment under appeal, that it was not possible to make adjustments on account of differences in the production process and access to raw materials observed in China, in the context of constructing the normal value pursuant to that provision.

40The appellant submits that the solution adopted by the General Court in that judgment results in the exclusion, in principle, of the possibility for exporting producers of non-market economy countries that do not qualify for MET of requesting adjustments of the normal value on account of such differences under Article 2(7)(a) of the basic regulation, even though — pursuant to the judgments of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council ( T‑170/09 , not published, EU:T:2012:531 , paragraph 123 ), and of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council ( T‑558/12 and T‑559/12 , not published, EU:T:2015:237 , paragraph 110 ) — those exporting producers are already denied the possibility of requesting adjustments on account of those differences on the basis of Article 2(10) of the basic regulation.

41Such a solution, which, in essence, denies those exporting producers the right to request adjustments, is contrary to Article 2.4 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, which corresponds to Article 2(10) of the basic regulation and lays down the obligation to make a fair comparison between the export price and the normal value and to make adjustments on account of differences that affect price comparability. In its report of 18 January 2016 in the case ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (WT/DS 397/AB/RW, paragraphs 5.207 and 5.215), the Appellate Body of the WTO clearly indicated that that obligation applies in all anti-dumping investigations, including when the normal value is determined on the basis of an analogue country.

42Furthermore, contrary to the General Court’s finding, the fact that the appellant did not submit a claim for MET is irrelevant for the purpose of determining whether a request for adjustment under Article 2(7)(a) of the basic regulation is justified.

43In addition, while in the judgment of 10 September 2015, Fliesen-Zentrum Deutschland ( C‑687/13 , EU:C:2015:573 , paragraph 48 ), cited by the General Court in paragraph 60 of the judgment under appeal, the Court of Justice held that the aim of Article 2(7)(a) of the basic regulation is to prevent account being taken of prices and costs in non-market economy countries which are not the result of normal market forces, it did not, however, rule on whether adjustments can be made on account of factors which are the result of such forces, such as differences due to a natural comparative advantage. Nor was that possibility excluded in the judgment of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council ( T‑558/12 and T‑559/12 , not published, EU:T:2015:237 , paragraph 110 ), cited in paragraph 61 of the judgment under appeal.

44While the appellant does not argue that adjustments need be made to reverse distortions found in a non-market economy country, it nevertheless maintains that that does not exclude the possibility of making adjustments, under Article 2(7)(a) or Article 2(10) of the basic regulation, for differences that affect price comparability and are the result of market forces, in other words, differences that are not caused by distortions.

45In that regard, in its report of 18 January 2016 in the case ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (WT/DS 397/AB/RW, paragraphs 5.207 and 5.236), the Appellate Body of the WTO stated that, although the investigating authority is not required to make adjustments for differences between the costs of producers in the non-market economy exporting country and those of the producer in the analogue country where that would lead that authority to reintroduce into the normal value the distorted costs of producers in that first country, that authority must, however, determine whether or not the adjustment requested would have such an effect.

46By excluding, in principle, the possibility of making adjustments for differences in access to raw materials and in the production process, whereas it should have examined whether the acceptance of such an adjustment would have resulted in reintroducing distorted costs and/or whether the other conditions for accepting that adjustment were satisfied, the General Court infringed Article 2(7)(a) of the basic regulation.

47The Commission and Eurofer contend that the second ground of appeal must be rejected as unfounded and, according to Eurofer, as, in any event, ineffective.

Findings of the Court

48By its second ground of appeal, the appellant submits that the General Court erred in law by excluding, in principle, the possibility of making adjustments for differences in the production process and access to raw materials observed in China, in the context of constructing the normal value pursuant to Article 2(7)(a) of the basic regulation.

50It must, however, be noted in that regard that, in order to conclude, in paragraph 64 of the judgment under appeal, that, in the present case, adjustments could not be made for differences in the production process and in access to raw materials observed in China, in the context of constructing the normal value pursuant to Article 2(7)(a) of the basic regulation, the General Court found, in paragraph 63 of that judgment, that, since China was not, at the material time, considered a market economy and the appellant had not submitted a claim for MET, there was nothing to indicate that the sourcing of nickel or the production process of an undertaking operating in non-market economy conditions were not influenced by parameters which are not the result of market forces.

53The appeal must, therefore, be dismissed in its entirety.

Costs

54Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

55Article 138(1) of those rules, applicable to appeal proceedings pursuant to Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

56Since Shanxi Taigang Stainless Steel has been unsuccessful and the Commission and Eurofer have applied for costs, that company must be ordered to pay the costs relating to the present appeal.

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

1.Dismisses the appeal;

2.Orders Shanxi Taigang Stainless Steel Co. Ltd to pay the costs.

Lycourgos

Juhász

Ilešič

Delivered in open court in Luxembourg on 29 July 2019.

A. Calot Escobar

Registrar

C. Lycourgos

President of the Tenth Chamber

( *1 ) Language of the case: English.