JUDGMENT OF THE GENERAL COURT (Second Chamber)

8 May 2019 ( *1 )

(Dumping — Imports of certain cold-rolled flat steel products originating in China and Russia — Definitive anti-dumping duty — Registration of imports — Retroactive application of the definitive anti-dumping duty — Implementing Regulation (EU) 2016/1329 — Importer’s awareness of the dumping and injury — Further substantial rise in imports likely to seriously undermine the remedial effect of the definitive anti-dumping duty — Article 10(4)(c) and (d) of Regulation (EU) 2016/1036)

In Case T‑749/16,

Stemcor London Ltd , established in London (United Kingdom),

Samac Steel Supplies Ltd , established in London,

represented by F. Di Gianni and C. Van Hemelrijck, lawyers,

applicants,

v

European Commission , represented by J.-F. Brakeland, N. Kuplewatzky, T. Maxian Rusche and E. Schmidt, acting as Agents,

defendant,

supported by

Eurofer, Association européenne de l’acier, ASBL , established in Luxembourg (Luxembourg) represented by O. Prost, A. Coelho Dias and S. Seeuws, lawyers,

intervener,

APPLICATION pursuant to Article 263 TFEU seeking the annulment in part of Commission Implementing Regulation (EU) 2016/1329 of 29 July 2016 levying the definitive anti-dumping duty on the registered 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. 27 ),

THE GENERAL COURT (Second Chamber),

composed of M. Prek, President, E. Buttigieg (Rapporteur) and B. Berke, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 23 October 2018,

gives the following

Judgment

Background to the dispute

1The applicants, Stemcor London Ltd and Samac Steel Supplies Ltd, are two companies governed by English law which, within the European Union, import and trade in, inter alia, cold-rolled flat steel products, such as those referred to in Article 1(1) of Commission Implementing Regulation (EU) 2016/1329 of 29 July 2016 levying the definitive anti-dumping duty on the registered 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. 27 ) (‘the contested regulation’).

2Following a complaint lodged on 1 April 2015 by Eurofer, Association européenne de l’acier, ASBL (‘Eurofer’), the European Commission published, on 14 May 2015, a notice of initiation of an anti-dumping proceeding concerning imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation ( OJ 2015 C 161, p. 9 ) (‘the notice of initiation of investigation’), pursuant to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (( OJ 2009 L 343, p. 51 , corrigendum OJ 2010 L 7, p. 22 ), replaced by 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 regulation’)).

3The investigation of dumping and injury covered the period from 1 April 2014 to 31 March 2015 (‘the investigation period’), while the examination of trends relevant for the assessment of injury covered the period from 1 January 2011 to the end of the investigation period.

4Following a request made by Eurofer, the Commission adopted, pursuant to Article 14(5) of Regulation No 1225/2009, Implementing Regulation (EU) 2015/2325 of 11 December 2015 making imports of certain cold-rolled flat steel products originating in the People’s Republic of China and the Russian Federation subject to registration ( OJ 2015 L 328, p. 104 ), which entered into force on 13 December 2015.

5On 11 January 2016, the applicants submitted to the Commission their written observations concerning Implementing Regulation 2015/2325. They argued that the conditions for the retroactive imposition of anti-dumping duties on the products concerned had not been met and that the registration of the imports and the retroactive imposition of those duties would have significant adverse consequences for importers and users of the products concerned in the European Union. On 14 January 2016, the applicants set out their views during a hearing organised at their request by the Commission.

6By its Implementing Regulation (EU) 2016/181 of 10 February 2016 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 ), the Commission imposed a provisional anti-dumping duty on the products concerned with effect from 13 February 2016 and directed the customs authorities to discontinue the registration of imports of the products concerned.

7On 17 February 2016, the Commission sent the applicants and other importers a request for information regarding imports of the products concerned between 1 April 2015 and 31 January 2016. By letters of 9 and 17 March 2016, the applicants submitted their responses to the Commission’s request for information.

8On 26 February 2016, the applicants again set out their views during a hearing organised at their request by the Commission and repeated that the conditions for the retroactive imposition of anti-dumping duties had not been met.

9On 8 June 2016, the Commission sent the applicants its definitive conclusions, in which it stated its intention to levy retroactively the definitive anti-dumping duty on the registered imports.

10On 15 June 2016, the applicants set out their views during a hearing held before the Hearing Officer and contested the findings contained in the Commission’s definitive disclosure.

11By its Implementing Regulation (EU) 2016/1328 of 29 July 2016 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 Commission imposed a definitive anti-dumping duty on the products concerned and decided to collect definitively the provisional duty imposed on those products. On the same day, pursuant to Article 10(4) of the basic regulation, the Commission adopted the contested regulation, which provides for the retroactive levying of the definitive anti-dumping duty on the imports which were registered in accordance with Implementing Regulation 2015/2325.

Procedure and forms of order sought

12By application lodged at the Court Registry on 28 October 2016, the applicants brought the present action.

13By document lodged at the Court Registry on 1 March 2017, Eurofer applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

14By document lodged at the Court Registry on 30 March 2017, the applicants applied for certain information contained in the application and the annexes thereto to be treated as confidential with regard to Eurofer if the latter were to be granted leave to intervene. The applicants included non-confidential versions of those documents as annexes to that application for confidential treatment.

15By document lodged at the Court Registry on 21 April 2017, the applicants applied for certain information contained in the defence and the annexes thereto to be treated as confidential with regard to Eurofer if the latter were to be granted leave to intervene.

16By order of 3 May 2017, the President of the Second Chamber of the General Court granted Eurofer leave to intervene in support of the form of order sought by the Commission and ordered that the non-confidential versions of the documents in question be sent to Eurofer.

17By document lodged at the Court Registry on 15 May 2017, the applicants applied for certain information contained in the reply and the annexes thereto to be treated as confidential with regard to Eurofer. They included non-confidential versions of those documents as annexes to that application for confidential treatment.

18By document lodged at the Court Registry on 16 August 2017, the applicants submitted a reasoned application under Article 106 of the Rules of Procedure of the General Court to be heard during the oral part of the procedure.

19The applicants claim that the Court should:

–

annul the contested regulation in so far as it concerns them;

–

order the Commission to pay the costs.

20The Commission contends that the Court should:

–

dismiss the action as unfounded;

–

order the applicants to pay the costs.

21The intervener contends that the Court should:

–

dismiss the action as unfounded;

–

order the applicants to pay the costs.

Law

22In support of the action, the applicants rely on three pleas in law. The first plea in law alleges incorrect interpretation and application of the condition laid down in Article 10(4)(c) of the basic regulation relating to the importer’s being ‘aware’ of the extent of the dumping. The second plea in law alleges that the assessment of the condition laid down in Article 10(4)(d) of the basic regulation relating to a ‘further substantial rise in imports’ was incorrectly based on a period starting in the first full month after publication of the initiation of the investigation in the Official Journal of the European Union and ending in the last full month preceding the imposition of provisional measures. Finally, the third plea in law alleges misinterpretation of the condition requiring that the further rise in imports be ‘likely to seriously undermine the remedial effect’ within the meaning of Article 10(4)(d) of the basic regulation.

The first plea in law, alleging incorrect interpretation and application of the condition laid down in Article 10(4)(c) of the basic regulation relating to the importer’s being ‘aware’ of the dumping and the extent thereof

The first limb of the first plea in law

23By the first limb of the first plea in law, the applicants submit that the Commission incorrectly applied Article 10(4)(c) of the basic regulation in concluding that the importers were aware of, or ‘should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found’, within the meaning of that provision, by virtue of the communication of the non-confidential version of Eurofer’s complaint and the publication of the notice of initiation of investigation.

24The applicants argue, first, relying on a comparative analysis of the various language versions of the provision cited above, that the word ‘alleged’ refers only to the word ‘injury’ and not also to the word ‘dumping’. Accordingly, the Commission should have demonstrated, in respect of the dumping at issue, that the importer was aware of the ‘actual’ existence and the extent of the dumping, which it failed to do.

25Secondly, finding that the importer was aware of the dumping and its extent by virtue of the publication of the notice of initiation of investigation and the access to the non-confidential version of the complaint amounts to establishing, in every case, an ‘irrebuttable’ presumption of such awareness by the importer, where it has registered as an interested party to the investigation, simply on account of the initiation of that investigation, and therefore deprives Article 10(4)(c) of the basic regulation of all practical effect. In addition, the retroactive application of the definitive anti-dumping duties manifestly constitutes an exceptional measure, as is apparent inter alia from Article 10(1) of the basic regulation, and, according to settled case-law, exceptions and provisions involving negative consequences for individuals should be interpreted strictly.

26Thirdly, mere ex parte allegations contained in a complaint and prima facie evidence of the existence of dumping contained in a notice of initiation of investigation cannot be equated to information capable of making the importer aware of the extent of the dumping, which necessarily entails complex economic assessments, and, therefore, the expected level of the anti-dumping duty that might be collected at a later stage. Evidence contained in a complaint or in a notice of initiation of investigation is not representative and reliable evidence but simply constitutes a very vague fumus of alleged dumping, and thus cannot provide an objective basis for establishing awareness of the extent of the dumping, even assuming that it is sufficient for that dumping to be merely alleged. Such representative and reliable evidence could take the form of non-confidential summaries of the questionnaire replies from exporting producers, allowing the importer to understand that dumping has taken place and to assess the extent thereof.

27The applicants add, with regard to Eurofer’s complaint, that the hints contained therein were inadequate given their unrepresentative, vague and largely confidential nature. According to the applicants, the calculation of the dumping margin for Russian imports was based on incomplete evidence in view of determining the normal value and the export price. Nor does that complaint contain any information regarding the extent of the dumping alleged for the specific Russian exporting producer from which they purchased the products concerned during the registration period. In order to satisfy the condition laid down in Article 10(4)(c) of the basic regulation relating to being aware of the dumping and the extent thereof, reliable information about the extent of the dumping of each cooperating exporting producer should be available to the importers. While the calculations in a complaint, which are never based on detailed information, could be sufficient to trigger the initiation of an investigation, they are not sufficient to establish awareness of the extent of the dumping for the purpose of resorting to the exceptional mechanism of retroactive application of definitive anti-dumping duties. Furthermore, the non-confidential versions of the questionnaire replies submitted on behalf of the exporting producers did not contain any meaningful information that could be used to determine their dumping margins, nor did the file contain such information. On the contrary, the exporting producers consistently fiercely challenged the initiation of the investigation.

28The Commission, supported by the intervener, contests the applicants’ arguments.

29Article 10(4)(c) of the basic regulation states that a definitive anti-dumping duty may be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation, provided, inter alia, that there is, for the product in question, a history of dumping over an extended period, or ‘the importer was aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found’.

30It should be noted that in the German version of the basic regulation that condition is worded as follows: ‘der Einführer nach dem Ausmaß des Dumpings und der angeblichen oder festgestellten Schädigung von dem Dumping Kenntnis hatte oder hätte haben müssen’. In the Portuguese version, it is indicated that ‘o importador tivesse ou devesse ter tido conhecimento dessas práticas no que respeita à importância do dumping e do prejuízo alegados ou verificados’ and, in the English version, it is stated that ‘the importer was aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found’.

31It is apparent from the examination of these various language versions of the provision cited above that there is divergence between them. Thus, inter alia, the German and French versions use the words ‘alleged’ and ‘found’ in the singular, which suggests that those words refer only to the injury and not also to the dumping or its extent. The Portuguese version, however, uses the words ‘alleged’ and ‘found’ in the plural, which suggests that those words refer to the extent of the injury and the dumping. Finally, the English version permits both an interpretation according to which the words ‘alleged’ and ‘found’ refer only to the injury and an interpretation according to which those words refer to the injury and the dumping or even their extent.

32According to settled case-law, where there is divergence between the various language versions of an EU legal text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 18 September 2014, Vueling Airlines, C‑487/12 , EU:C:2014:2232 , paragraph 31 and the case-law cited).

34Indeed, as the Commission rightly observed, the existence of ‘actual’ dumping is determined only at the end of the investigation, namely when the definitive measures are adopted. Therefore, the interpretation suggested by the applicants would, in general, establish the importers’ awareness only as from the adoption of the definitive measures.

35It should be noted that the relevant time for assessing the importers’ being ‘aware’ within the meaning of Article 10(4)(c) of the basic regulation is before the adoption of definitive measures, that awareness being necessary for determining the starting point from which it may be assessed whether there is a further substantial rise in imports likely to seriously undermine the remedial effect of the definitive measures that will be applied subsequently.

36It is also apparent that taking a further substantial rise in imports into account only from the imposition of definitive duties would preclude any possibility of having recourse to the retroactive application of definitive duties and that such an interpretation would therefore be devoid of any meaning.

37In the light of the foregoing, it must be concluded that the argument put forward by the applicants in support of a restrictive interpretation of the provision at issue, in that it would result in taking into account solely the situation in which the importer was aware of, or should have been aware of, ‘actual’ dumping cannot be accepted and that the words ‘alleged’ or ‘found’ must be regarded as relating both to the extent of the dumping and the extent of the injury in order to ensure the practical effect of that provision.

38That interpretation is also borne out by the origins of the provision at issue, introduced in 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 ), as set out in Commission document COM(94) 414 final of 5 October 1994, entitled ‘Uruguay Round Implementing Legislation’. Thus, on page 170 of that document, the Commission notes that ‘it is proposed (Article 10.4 of proposal) that … “awareness” [of the dumping] would be established where the margins “alleged or found” are high’.

39In response to the applicants’ claim that finding that the importer was aware of the extent of the dumping on the basis of the non-confidential version of the complaint and the notice of initiation of investigation amounts to establishing a systematic and ‘irrebuttable’ presumption of such awareness, whereas Article 10(4) of the basic regulation should be interpreted strictly as an exception to the principle of non-retroactivity of anti-dumping duties, it must be recalled at the outset that it is incumbent upon the investigating authority to establish, to the requisite legal standard, the objective evidence needed to substantiate the conclusion that the importer was aware of, or should have been aware of, the extent of the dumping and the injury alleged or found and that it is for the Courts of the European Union consequently to determine whether the investigating authority has established the existence of such objective evidence (see, to that effect and by analogy, order of 16 May 2013, Hardimpex, C‑444/12 , not published, EU:C:2013:318 , paragraphs 28 and 29 ).

40In the present case, it is apparent that the notice of initiation of investigation, published in the Official Journal on 14 May 2015, and the non-confidential version of the complaint, sent to the applicants on 18 May 2015, as confirmed by the Commission in response to a question put by the Court at the hearing, contain a number of statements and items of evidence supporting and stating the extent of the dumping and the injury alleged.

41First of all, as regards the imports from China, it is apparent, in particular, from paragraphs 58 and 59 of the non-confidential version of the complaint that the result of the calculation made by the complainant was a weighted average dumping margin of 28% and that, consequently, the level of dumping is substantial and well above the de minimis threshold laid down in the basic regulation.

42As regards the imports from Russia, it is apparent from paragraphs 89 and 90 of the non-confidential version of the complaint that the result of the calculation made by the complainant was a dumping margin of between 10-15% and 20-25% and that, consequently, the level of dumping is substantial and well above the de minimis threshold laid down in the basic regulation.

43Next, as regards the injury, which is covered in point 5 of the complaint, it is apparent, inter alia, from paragraphs 82, 83, 128, 133, 134 and 147 of the non-confidential version of the complaint that there is prima facie evidence of the existence of dumping practices on the part of Chinese and Russian exporting producers of certain cold-rolled flat steel products having caused injury to the Union industry, which therefore justifies the initiation of an anti-dumping investigation by the Commission and the imposition of anti-dumping duties as soon as possible.

44It also follows from paragraphs 3 and 4 of the notice of initiation of investigation that ‘the dumping margins calculated are significant for the countries concerned’ and that ‘the prima facie evidence provided by the complainant shows that the volume and prices of imports of the imported product under investigation have had, among other consequences, a negative impact on the quantities sold, the level of prices charged and the market share held by the Union industry, resulting in substantial adverse effects on the overall performance, the financial situation and the employment situation of the Union industry’.

45Consequently, the Commission was entitled to infer that the applicants, who are experienced professionals, were aware of, or should have been aware of, the extent of the dumping and the injury alleged from the moment they became aware of the complaint and the notice of initiation of investigation, without, moreover, that presumption being ‘irrebuttable’, given that the applicants’ awareness had been inferred on the basis of objective evidence, as is also apparent from paragraphs 53 to 55 below, and that it could not have been established, inter alia, if the alleged dumping margins had been low, if the file had been based only on a threat of injury or if the complaint had not satisfied the conditions laid down in the basic regulation, which could have allowed the importer to challenge the initiation of the investigation and claim that the condition of awareness was not satisfied, as the Commission rightly pointed out.

46Furthermore, it must be recalled that Article 10(4) of the basic regulation makes the retroactive levying of definitive duties, which is conceived as an exception to the principle of non-retroactivity of anti-dumping duties, subject to the satisfaction of several cumulative conditions. First, the imports must have been previously subject to registration, which requires already at that stage that the application for registration be duly substantiated; secondly, the Commission must have given the importers an opportunity to comment; thirdly, there must be, for the product in question, a history of dumping over an extended period, or the importer must have been aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found and, fourthly, in addition to the level of imports which caused injury during the investigation period, there must have been a further substantial rise in imports which, in the light of its timing and volume and other circumstances, was likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied.

47Consequently, as stated in recital 41 of the contested regulation, it would be incorrect to claim that, on the assumption that awareness of the extent of the dumping and the injury alleged might stem from the publication of the notice of initiation of investigation and from access to the complaint, the retroactive imposition of anti-dumping duties would be possible in every anti-dumping investigation.

48Furthermore, adopting an interpretation as strict as that suggested by the applicants could render the retroactive application of definitive anti-dumping duties excessively difficult and, consequently, fail to ensure the effective application of the definitive measures. That would be the case in particular if the applicants’ argument, according to which the evidence contained in a complaint or a notice of initiation of investigation is in any event ‘neither representative nor reliable’ in view of establishing awareness of the extent of the dumping, were accepted.

49First of all, neither the basic regulation nor the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) ( OJ 1994 L 336, p. 103 , ‘the Anti-Dumping Agreement’) set out in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) ( OJ 1994 L 336, p. 3 ) requires ‘reliable and representative evidence’ to establish the importers’ awareness.

50Next, the quantity and quality of the evidence necessary to satisfy the condition laid down in Article 10(4)(c) of the basic regulation relating to awareness are necessarily less significant than those required for the purposes of a preliminary or final determination of dumping, injury or a causal link between the allegedly dumped imports and the alleged injury.

51Furthermore, under Article 5(2) of the basic regulation, any complaint made to the Commission must include evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury.

52Finally, Article 5(3) of the basic regulation provides that the Commission must, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint to determine whether there is sufficient evidence to justify the initiation of an investigation. If, on the other hand, it considers that there is insufficient evidence to justify proceeding therewith, the complaint is rejected, in accordance with Article 5(7) of that regulation.

53In the present case, first, it must be stated that the non-confidential version of the complaint contains the information required by Article 5(2) of the basic regulation, namely information on the existence of dumping of the products concerned, the injury resulting therefrom and the causal link between the allegedly dumped imports and the alleged injury. Furthermore, as noted in paragraphs 41 and 42 above, the non-confidential version of the complaint indicates high dumping margins, estimated at 28% for the imports from China and up to 20-25% for the imports from Russia.

54Secondly, it is apparent from the notice of initiation of investigation that the Commission examined the accuracy and adequacy of the evidence provided in the complaint, in accordance with Article 5(3) of the basic regulation, in order to determine whether there was sufficient evidence to justify the initiation of an investigation. Following that examination, it concluded that the evidence was sufficient.

55Thirdly, it is also stated in the notice of initiation of investigation that ‘the dumping margins calculated are significant for the countries concerned’ and that ‘the prima facie evidence provided by the complainant shows that the volume and prices of imports of the imported product under investigation have had, among other consequences, a negative impact on the quantities sold, the level of prices charged and the market share held by the Union industry, resulting in substantial adverse effects on the overall performance, the financial situation and the employment situation of the Union industry’.

57That conclusion is not called into question by the applicants’ general claim that it follows from taking into consideration the figures which they produced before the Court and which are derived from complaints that triggered the initiation of anti-dumping investigations in the recent past that the dumping margins alleged initially in complaints may differ significantly from the definitive margins established at the end of those investigations, so that the dumping margins alleged in a complaint cannot in any event constitute a reliable basis for establishing the importers’ awareness of the extent of the dumping.

58Without it being necessary to examine the Commission’s request that those figures be withdrawn from the file, failing any satisfactory explanation from the applicants as to the lawfulness of their production, suffice it to note, first, that, as the Commission rightly observed, it is normal for the calculations set out in a complaint not to correspond necessarily to those carried out by that institution after several months of in-depth investigation and, secondly, that, as stated in paragraphs 50 to 52 above, the quantity and quality of the evidence necessary to satisfy the condition laid down in Article 10(4)(c) of the basic regulation relating to awareness are necessarily less significant than those required for the purposes of a preliminary or final determination of dumping, injury or a causal link, while all complaints must, moreover, contain evidence of which the Commission must, as far as possible, examine the accuracy and adequacy in order to determine whether that evidence is sufficient to justify the initiation of an investigation.

59In the light of all the foregoing, the first limb of the first plea in law must be rejected.

The second limb of the first plea in law

60By the second limb of the first plea in law, the applicants submit that it is apparent from a literal and systematic interpretation of Article 10(4)(c) of the basic regulation and from an interpretation of that provision by reference to the general scheme and context of the basic regulation and in the light of the Anti-Dumping Agreement that the Commission should have shown that each importer had or should have had actual awareness of the dumping of the imports and the extent of the dumping, instead of confining itself to relying in that regard on an ‘irrebuttable’ presumption in respect of all the importers in question.

61The applicants further submit that awareness of mere conjectural allegations is clearly inadequate to establish that the requirement laid down in Article 10(4)(c) of the basic regulation is met, bearing in mind that the purpose of that requirement is to guarantee compliance with the principles of legal certainty and the protection of legitimate expectations. Those principles are not complied with if the importer was not aware of reliable information and data regarding the level of dumping, because that importer, when importing products subject to registration, cannot foresee what amount of definitive duty it may have to pay several months later and, consequently, take a well-reasoned decision. In addition, since the importer’s ‘maximum exposure’ to duties subsequently applied is not known before the provisional findings are made, this also runs counter to the principle of legal certainty.

62With regard to the applicants’ alleged relationship with the largest sampled Chinese exporting producer of the products concerned, which means, according to the Commission, that the question of awareness of the dumping and its extent does not even arise for the applicants, they maintain that that relationship is irrelevant in so far as, on the one hand, during the registration period, they did not import the products concerned from China and, on the other hand, the Commission has failed to substantiate its allegation that they had ‘inside knowledge’ on account of that relationship.

63The Commission, supported by the intervener, contests the applicants’ arguments.

64As regards the applicants’ argument that the Commission should have shown that each importer had or should have had ‘actual’ awareness of the existence of the dumping and its extent, suffice it to note that Article 10(4)(c) of the basic regulation expressly provides that it is sufficient that the importer ‘should have been aware’ of the extent of the dumping and the injury alleged, which does not therefore require ‘actual’ awareness to be proved. In the present case, as has been shown in paragraphs 40 to 58 above, the Commission was entitled to conclude that the applicants were aware of, or should have been aware of, the extent of the dumping and the injury alleged by virtue of the communication of the non-confidential version of the complaint and the publication of the notice of initiation of investigation, without it even being necessary to examine the Commission’s argument that, in the present case, the applicants had available, in any event, all the information necessary for their awareness of the alleged dumping practices to be established solely on the basis of the existence of a relationship between them and the largest Chinese exporting producer.

65In response to the applicants’ argument that the non-confidential version of the complaint and the notice of initiation of investigation, which contain only ‘mere ex parte allegations’ cannot be equated to information capable of making the importer aware of the extent of the dumping and, therefore, the expected level of the anti-dumping duty that might be collected at a later stage, which runs counter to the principles of legal certainty and the protection of legitimate expectations, reference must first be made to the assessment arising from paragraphs 40 to 58 above as regards the evidence contained in the non-confidential version of the complaint and the notice of initiation of investigation, from which it follows that that evidence was sufficient to establish that the applicants, as experienced professionals, were aware of, or should have been aware of, the extent of the alleged dumping within the meaning of Article 10(4)(c) of the basic regulation.

66As regards, more specifically, the claim alleging failure to comply with the principles of legal certainty and the protection of legitimate expectations, it must be recalled that importers are formally notified, by means of the registration regulation, of the possibility that definitive anti-dumping duties might be applied retroactively on registered imports and that it is impossible to determine, at a stage preceding the adoption of the provisional measures, the maximum amount of the anti-dumping duty that might be applied retroactively. The definitive anti-dumping duty, for its part, may not be higher than the provisional anti-dumping duty, as follows from Article 10(3) of the basic regulation. Moreover, as is apparent from recital 15 of Implementing Regulation 2015/2325, that regulation already sets out an estimated amount of possible future liability. In those circumstances, the applicants cannot claim any failure whatsoever to comply with the principles of legal certainty and the protection of legitimate expectations solely on the ground that they did not have sufficiently reliable information and data on the level of dumping when importing products during the registration period and, accordingly, could not assess the amount of the definitive duty that they might be requested to pay retroactively.

67In the light of the foregoing, the second limb of the first plea and, accordingly, the first plea in its entirety must be rejected, in so far as the Commission was entitled to conclude in recital 40 of the contested regulation, without committing any error, that the importers were aware of, or should have been aware of, the dumping and the injury alleged at the time of communication of the non-confidential version of the complaint and the publication of the notice of initiation of investigation in the Official Journal.

The second plea in law, alleging incorrect assessment of the condition laid down in Article 10(4)(d) of the basic regulation relating to a ‘further substantial rise in imports’

68By the second plea in law, the applicants submit that the Commission infringed Article 10(4)(d) of the basic regulation by comparing, for the purposes of applying that provision, the imports made during the investigation period, namely between April 2014 and March 2015, with those which took place between the first full month following publication of the notice of initiation of investigation in the Official Journal and the last full month preceding the imposition of provisional measures, namely between June 2015 and January 2016, whereas the Commission should have compared the imports made during the investigation period with those which took place during the registration period only, namely between December 2015 and February 2016, in accordance with the two-tiered system which provides first for registration and then for the retroactive collection of duties only where the registration has failed to reduce imports significantly and to preserve the remedial effect of the definitive duties.

69According to the applicants, Article 10(4)(d) of the basic regulation, read in the light of its purpose, requires a strict causal link between the imports registered and the imports which are deemed to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied. Determining whether retroactive collection of duties should occur on the basis of the development of imports which took place prior to the registration period would break that causal link. Therefore, the relevant comparison is that between the level of imports made during the investigation period and the level of imports made during the registration period, which has, moreover, been confirmed by the Commission’s previous practice. Where there is no substantial rise in imports during the registration period, the retroactive imposition of definitive duties is incapable of achieving the objective of preventing the remedial effect of the definitive duties from being seriously undermined. Moreover, in the present case, such a comparison would have revealed that there was no substantial rise in imports and, accordingly, that the condition laid down in Article 10(4)(d) of the basic regulation was not satisfied.

70The applicants likewise refute the intervener’s assertion that the importers in question dramatically increased imports over the nine months following the initiation of the investigation, during which consumption in the European Union rose. The applicants add that the intervener does not take account of the period between the ordering of the products and the actual clearance of those products with a view to their release for free circulation in the European Union, which explains the arrival of the products concerned on the European Union market in the first few months following the publication of the notice of initiation of investigation even though they were ordered well before that publication.

71The Commission, supported by the intervener, contests the applicants’ arguments.

72Article 10(4)(d) of the basic regulation requires, for the purposes of retroactively applying a definitive anti-dumping duty, that, ‘in addition to the level of imports which caused injury during the investigation period, there is a further substantial rise in imports’ which, ‘in the light of its timing’ and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied.

73First, it should be noted that the provision cited above does not specify a specific period in which to determine the existence of a ‘further substantial rise in imports’, but merely refers to its ‘timing’. However, the legislature’s use of the adverbial phrase ‘in addition to’ in relation to the imports which caused injury during the investigation period and the adjective ‘further’ in respect of the substantial rise in imports shows that the level of imports which took place during the investigation period must be compared with the level of imports made during the period following that investigation period, without that provision in any way limiting the period to be taken into consideration to that of the registration of imports.

75Moreover, the effects of imports made during the registration period cannot be distinguished with certainty from the effects of those made before that period, since the low-priced imports that entered the European Union during the registration period might be added to an increased stockpile of products established beforehand, at a time when importers were already aware of the possibility that anti-dumping duties might be applied retroactively on registered imports, thereby contributing to seriously undermining the remedial effect of the definitive anti-dumping duty to be applied.

76Furthermore, nor does Article 10.6 of the Anti-Dumping Agreement set out a specific period for assessing the existence of ‘massive … imports in a relatively short time’. In paragraph 7.167 of its report of 28 February 2001 in the case ‘United States — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan’ (WT/DS 184/R), the WTO Panel found, in relation to Article 10.7 of that agreement, which authorises certain measures to be taken at any moment after the initiation of the investigation, that ‘massive imports that [had not been] made in tempore non suspectu but at a moment in time where it had become public knowledge that an investigation was imminent [could] be taken into consideration in assessing whether Article 10.7 measures [could] be imposed’, while emphasising that the Panel was ‘not addressing the question whether this would be adequate for [the] purposes of the final determination to apply duties retroactively under Article 10.6’. As the Commission rightly pointed out, that report supports the view that, for the purposes of applying Article 10(4)(c) of the basic regulation, the importer’s awareness of the initiation of the investigation is decisive, which means that imports made before the registration period are relevant for assessing whether there is a ‘further substantial rise in imports’ within the meaning of that provision.

77In addition, as regards the applicants’ claim that the Commission should be authorised to take into consideration, for the purposes of assessing whether there is a further substantial rise in imports, only the imports on which it has the power subsequently to impose retroactive duties, it must be noted that the limitation of retroactive effect to imports that have been registered in accordance with Article 14(5) of the basic regulation aims to protect the due process rights of importers by authorising the Commission to impose anti-dumping duties retroactively on imported products only after importers have been warned that such a possibility could arise in respect of registered products and after they have been given the opportunity to comment in accordance with Article 10(4)(b) of the basic regulation, but in no way implies that the imports made before the registration period, which cannot be made subject to anti-dumping duties, would have no detrimental effects or that, in general, they would be irrelevant for assessing whether there is a further substantial rise in imports.

78Lastly, as regards the applicants’ argument that the period between the ordering of the products concerned and the actual clearance of those products with a view to their release for free circulation explains, in any event, the arrival of the products concerned on the European Union market in the first few months following publication of the notice of initiation of investigation, suffice it to note that the applicants have not substantiated that assertion with concrete and precise evidence, even though, as is apparent from recitals 33, 50 and 51 of the contested regulation, it is undisputed that over a million tonnes of the products concerned were released into free circulation between the notice of initiation of investigation and the beginning of the registration period, during which these imports amounted to approximately 165000 tonnes. Consequently, that argument must also be rejected.

79In the light of the foregoing, the second plea in law must be rejected.

The third plea in law, alleging misinterpretation of the condition that the further rise in imports must be likely to ‘seriously undermine the remedial effect’ of the definitive anti-dumping duty to be applied, within the meaning of Article 10(4)(d) of the basic regulation

The first limb of the third plea in law

80In support of the first limb of the third plea in law, the applicants claim that the Commission was wrong to carry out a global assessment of the data relating to several importers with a view to ascertaining whether the imports were likely to ‘seriously undermine the remedial effect’ of the definitive anti-dumping duty to be applied, within the meaning of Article 10(4)(d) of the basic regulation, whereas it should have carried out an individual analysis of the conduct of each importer, whether cooperating or non-cooperating, to establish whether it had engaged in stockpiling and, consequently, whether the imports could have contributed to the alleged ‘serious undermining’ of the remedial effects of the definitive anti-dumping duties. In view of the dissuasive nature of the retroactive collection of anti-dumping duties, it is necessary to establish the personal liability of each importer, and that objective could be achieved only if the importers in question were still in possession of the stocks. In addition, according to the applicants, if the Commission had carried out an individual assessment of the situation of each importer, it would have concluded that the applicants had not engaged in stockpiling before or during the registration period, and would even have found that their stocks had considerably decreased. The applicants resold virtually all the products subject to registration prior to the adoption of the definitive anti-dumping duties.

81The Commission, supported by the intervener, contests the applicants’ arguments.

82Article 10(4)(d) of the basic regulation makes the retroactive application of a definitive anti-dumping duty subject to the requirement that there is ‘a further substantial rise in imports which, in the light of its timing and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied’.

85The Court has also held that the effects of imports from different non-member countries must be assessed cumulatively and that there was good reason to allow the EU authorities to consider the effect of all such imports on the Union industry and, therefore, to take appropriate action against all the exporters, even if the volume of each individual importer’s imports is relatively small (see, to that effect, judgment of 5 October 1988, Technointorg v Commission, 294/86 and 77/87 , EU:C:1988:470 , paragraphs 40 and 41 ).

87Finally, contrary to what the applicants claim, the contested regulation does not pursue a ‘punitive’ objective. Whilst, as the applicants claim, Article 10(1) of the basic regulation affirms the principle of non-retroactivity of anti-dumping measures, several provisions of the basic regulation derogate from that principle by permitting, under certain conditions, the application of anti-dumping measures to products released into free circulation before the entry into force of the regulation establishing those measures, those products having been registered in accordance with Article 14(5) of the basic regulation, and does so with the sole purpose of preventing the remedial effect of the definitive measures from being seriously undermined and those measures thereby being rendered meaningless (see, to that effect, judgments of 6 June 2013, Paltrade, C‑667/11 , EU:C:2013:368 , paragraphs 28 and 29 , and of 17 December 2015, APEX, C‑371/14 , EU:C:2015:828 , paragraph 50 ). Such retroactive measures are ancillary to Implementing Regulation 2016/1328, which was adopted following the anti-dumping investigation and, in the same vein as those measures, is not ‘punitive’ or criminal in nature (see, in that regard, judgment of 12 October 1999, Acme v Council, T‑48/96 , EU:T:1999:251 , paragraph 30 ).

88In the light of the foregoing considerations, the first limb of the third plea in law must be rejected.

The second limb of the third plea in law

89In support of the second limb of the third plea in law, in the first place, the applicants claim that, in order to determine whether the remedial effect of the definitive anti-dumping duties to be applied would be seriously undermined if those anti-dumping duties were not collected retroactively, the Commission should have compared the imports which took place during the investigation period with those made during the registration period and not with those which occurred between the publication of the notice of initiation of investigation and the imposition of provisional measures, given that, as the applicants stated in the context of the second plea in law, it is the imports which took place during the registration period which would ultimately be subject to the retroactive collection of duties. The applicants submit in that regard that if the Commission had made such a comparison, it would have concluded that it was impossible for the imports during the registration period to be likely to ‘seriously’ undermine the remedial effect of the definitive duties to be applied since, inter alia, those imports had decreased as compared with the imports made during the investigation period, there was no evidence that stockpiling of the products concerned had taken place during the registration period and the applicants had shown that they had not in fact engaged in stockpiling, that the imports accounted for less than 0.5% of the European Union’s consumption of the products concerned (which was on the rise during the investigation period), and that their volume of 165000 tonnes was negligible in a market of more than 37000000 tonnes.

90In the second place and in any event, the applicants note, first, that, during the period between the publication of the notice of initiation of investigation and the imposition of provisional measures, the average monthly import volume was only 31761 tonnes more than that observed during the investigation period, and, second, that over the eleven months which followed the investigation period the decrease in the average monthly import prices from the countries concerned was justified by the fall in the prices of the raw materials. In addition, they explain that the products concerned do not lend themselves to stockpiling, meaning that the products imported after the publication of the notice of initiation of investigation and during the registration period were essentially resold even before the definitive anti-dumping duties were imposed. Lastly, according to the applicants, in order to be able to conclude that the remedial effect of the definitive anti-dumping duties was seriously undermined, it was necessary to establish that imposing such duties over the planned period of five years was insufficient to achieve the objective pursued by those definitive anti-dumping duties, namely to restore a level playing field.

91In the third and last place, the applicants criticise the Commission, first, for having replaced the condition that the further substantial rise in imports had to be likely to ‘seriously undermine the remedial effect’ of the anti-dumping duty to be applied with a test focused on the ‘delaying’ of that effect, which had a much lower threshold in so far as it consisted solely of whether, if the duties were not collected retroactively, the remedial effect of the anti-dumping duty would merely be delayed and, second, for having failed to elaborate upon the extent, length and implications of the alleged delay of the remedial effect.

92The Commission, supported by the intervener, contests the applicants’ arguments.

93In the first place, in response to the applicants’ argument that the Commission should have taken into account only the imports which took place during the registration period in order to determine whether they were likely to seriously undermine the remedial effect of the definitive duties to be applied, it must first of all be recalled that, as stated in paragraph 77 above, the fact that the retroactive collection of duties applies only to registered imports in order to respect due process rights does not mean that the investigating authorities must ignore the imports made before the registration period with a view to determining whether the remedial effect of the definitive duties could be undermined.

94Indeed, as has been noted in paragraphs 72 to 78 above, the ‘further substantial rise in imports’ within the meaning of Article 10(4)(d) of the basic regulation must be assessed from the moment that importers were aware of the possibility that a duty might subsequently be applied on registered imports and that they might thus have been tempted to import massive amounts of the products concerned in anticipation of the future imposition of that duty, which means that the imports that took place as of the publication of the notice of initiation of investigation must be included in order to determine whether those imports, together with the imports which took place during the registration period, were likely to undermine the remedial effect of the definitive duties to be applied. Therefore, that argument must be rejected.

95In the second place, as regards the applicants’ argument that, during the period between the publication of the notice of initiation of investigation and the imposition of provisional measures, the average monthly import volume was only 31761 tonnes more than that observed during the investigation period, it must be stated, as recalled in recital 27 of the contested regulation, that the ‘substantial’ nature of the rise is to be determined on a case-by-case basis, not only by comparing monthly weighted averages of the imports that took place during the investigation period and those which occurred during the period between the notice of initiation of investigation and the imposition of provisional measures, but also by taking all other relevant considerations into account. Those are in particular: the development of the overall consumption of the products concerned in the Union, the evolution of stocks and the evolution of market shares. A comparison between the two above monthly averages is thus an important element, but not necessarily the decisive element, in determining whether the further rise in imports is ‘substantial’. Consequently, the applicants are wrong to claim that the rise in imports could not in any event be classified as a substantial rise on the ground that it represented only 31761 tonnes more than the imports that took place during the investigation period, without taking into account the other relevant and necessary factors for that assessment.

96In the third place, as regards the applicants’ claims that, first, during the period between the notice of initiation of investigation and the end of the registration period for imports, the decrease in the average monthly import prices from the countries concerned was justified by the fall in the prices of the raw materials and, secondly, the products concerned do not lend themselves to stockpiling, it should be recalled at the outset that, in the realm of measures to protect trade, the Council and the Commission enjoy broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine, and the powers of review enjoyed by the Courts of the European Union are restricted accordingly (see judgment of 17 March 2015, RFA International v Commission, T‑466/12 , EU:T:2015:151 , paragraphs 37 and 43 and the case-law cited).

97As regards, first, the fall in the prices of the raw materials, it was found in recital 80 of the contested regulation that the drop in raw material prices could not justify more than a 4% drop in sales prices. An overall comparison of the average import price from the countries concerned with the average sales price from the Union industry during the investigation period and post investigation period results in 7% undercutting during the investigation period, while, after that period, the undercutting increased to 14%. Accordingly, the applicants cannot claim that the decrease in the average monthly import prices from the countries concerned was due exclusively to the fall in the prices of the raw materials and that the imports in question could not therefore seriously undermine the remedial effect of the anti-dumping duty to be applied.

98As regards, secondly, the claim that the products concerned do not lend themselves to stockpiling, it must first of all be noted that that assertion alone is not capable of contradicting the finding that stockpiling indeed did occur following the initiation of the proceeding. As stated in recital 68 of the contested regulation, stockpiling is often not a usual practice that occurs when there are special circumstances and/or expectations in the market, for example in the light of the future prices of the products concerned. The fact that a product is not usually stocked does not mean that no stockpiling can take place when such circumstances and expectations come into play. In addition, based on the figures submitted by the importers and/or users of the products concerned, it was found in recital 52 of the contested regulation that, overall for those importers and/or users, the stocks at the end of 2015 were 22% higher than at the end of 2014. Therefore, having failed to furnish evidence to rebut the finding that the further substantial rise in imports could be an indication of substantial stockpiling of the imported products, which is also suggested by the abovementioned increase in stocks itself, the applicants have failed to show that the Commission’s assessment was vitiated by a manifest error.

99In the fourth place, the applicants’ argument that the Commission should have established that imposing definitive anti-dumping duties over the planned period of five years was insufficient to restore a level playing field, must also be rejected. It should be recalled that the period of five years during which the definitive measures are, in principle, imposed is not final, since the definitive duties may, in accordance with Article 11(2) of the basic regulation, be made subject to an interim review, at the earliest, one year after imposition of the definitive measures, which may therefore result in the revocation of those duties in so far as they remain in force only as long as and to the extent necessary to counteract the dumping which is causing injury. Consequently, the retroactive application of definitive anti-dumping duties cannot be made subject to such a requirement.

100In the fifth place, neither the ‘delaying’ test used by the Commission to illustrate the cumulative effect of the imports made between the initiation of the investigation and the beginning of the registration period and the imports made during the registration period, nor the claim that the contested regulation does not elaborate upon the extent, length and implications of the alleged delay of the remedial effect that would result from the failure to apply retroactive anti-dumping duties to imports subject to registration cannot affect the lawfulness of the contested regulation. Article 10(4)(d) of the basic regulation provides only that the Commission is to determine that the further substantial rise in imports, in the light of its timing and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied. This means that it is the circumstances referred to above, in which that further substantial rise in imports occurs, which are deemed to seriously undermine that remedial effect.

101As is apparent, inter alia, from recitals 31, 50 to 53, 75, 76, 79 to 81 and 84 of the contested regulation, the Commission sought to analyse, in addition to the factors referred to in Article 10(4)(d) of the basic regulation, in particular the prices of the imported products and stocks of the products imported prior to registration.

102First, it is apparent from recital 50 of the contested regulation that, during the period from the first full month following the publication of the notice of initiation of investigation until the last full month preceding the imposition of provisional measures, the average monthly import volume from the countries concerned rose by 37% compared to the volume during the investigation period. In addition, it is apparent from recital 51 of the contested regulation that, in the period from the first full month following the initiation of the investigation and including the month in which provisional measures were imposed, the average monthly import volume from the countries concerned rose by 27% compared with the monthly average in the investigation period. The Commission inferred therefrom, in recital 53 of the contested regulation, that there was a substantial rise in import volumes after the initiation of the investigation.

103Secondly, those imports took place after the importers became aware of the possibility that anti-dumping duties might subsequently be applied retroactively, which occurred when the notice of initiation of investigation was published and the non-confidential version of the complaint was sent, and those imports continued until the imposition of provisional measures. It is therefore a period during which imports were made even though the importers were fully aware of the fact that an anti-dumping investigation was under way and of the possibility that anti-dumping duties might soon be applied.

104Thirdly, it is apparent from recital 79 of the contested regulation that during the 11 months following the investigation period, the average monthly import prices from China and Russia decreased by 13% and 12% respectively when comparing these prices with the average monthly import prices during the investigation period. As is clear from paragraph 97 above and as recalled in recital 80 of the contested regulation, although the prices of raw materials also decreased during that period, that fact cannot, however, account for more than a 4% drop in sales prices, with the result that that comparison leads to a 7% undercutting during the investigation period while, after that period, the undercutting increased to 14%. Furthermore, it is apparent, inter alia, from recital 81 of the contested regulation that during the registration period, the average import prices from China and Russia decreased by 19% and 24% respectively when compared with the average import prices during the investigation period. The Commission inferred therefrom, in the same recital, that, for the two countries combined, undercutting in the registration period further increased to almost 20% on average. Consequently, there was a further fall in the average prices of imports from the countries concerned.

105Fourthly, it is apparent from recital 52 of the contested regulation that the imports of the 22 importers and/or users which provided information on the imports during the period after the initiation of the investigation represented 46% of all imports from the countries concerned. The information thus obtained showed, overall for those importers which cooperated in the investigation and/or for users, a 22% increase in stocks of the products concerned at the end of 2015 as compared with the end of 2014. Recital 84 of the contested regulation in turn notes that stockpiling necessarily took place not only in view of the finding in recital 52 of that regulation, but also on account of the substantial rise in imports that followed the investigation period when compared to the level of imports made prior to the publication of the notice of initiation of investigation.

106It is apparent from recitals 75 and 76 of the contested regulation that that further substantial rise in imports at prices even lower than during the investigation period is consistent with an increase in Union consumption on the free market of 14% during the period from April 2015 to January 2016, while sales volumes achieved by the Union producers remained stable and presented only a slight increase of 3%. This resulted in a further decrease in the Union industry’s market share of 7%, falling from 71 to 64%.

107Accordingly, the Commission was fully entitled to conclude, inter alia in recitals 86 and 94 of the contested regulation, that the further substantial rise in imports, in the light of its volume, timing and other circumstances, namely the substantial decrease in prices and increase in stocks, had a further negative bearing on the prices and Union market share of the Union industry and was therefore likely to seriously undermine the remedial effect of the definitive anti-dumping duty.

108In the light of all the foregoing considerations, the second limb of the third plea in law must be rejected and, accordingly, the action must be dismissed in its entirety.

Costs

109Under 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. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay the costs incurred by the Commission and by the intervener, in accordance with the forms of order sought by them.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.Dismisses the action;

2.Orders Stemcor London Ltd and Samac Steel Supplies Ltd to bear their own costs and to pay those incurred by the European Commission and by Eurofer, Association européenne de l’acier, ASBL.

Prek

Buttigieg

Berke

Delivered in open court in Luxembourg on 8 May 2019.

E. Coulon

Registrar

M. Prek

President

( *1 ) Language of the case: English.