Photo USA Electronic Graphic v Council (Judgment) [2014] EUECJ T-394/13 (18 November 2014)

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(Dumping — Imports of ceramic tableware and kitchenware originating in the People’s Republic of China — Definitive anti-dumping duty — Definition of the product concerned)

Photo USA Electronic Graphic, Inc., established in Beijing (China), represented by K. Adamantopoulos, lawyer,

Council of the European Union, represented by S. Boelaert, acting as Agent, and by B. O’Connor, Solicitor, and S. Gubel, lawyer,

European Commission, represented by J.-F. Brakeland and M. França, acting as Agents,

APPLICATION for annulment of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2013 L 131, p. 1) in so far as it imposes an anti‑dumping duty on the applicant,

composed of S. Papasavvas (Rapporteur), President, N. J. Forwood and E. Bieliūnas, Judges,

having regard to the written procedure and further to the hearing on 24 June 2014,

1 The applicant, Photo USA Electronic Graphic, Inc., is a Chinese company which produces and exports plain polyester coated ceramic mugs to the European Union. Such mugs can be used for sublimation printing, that is to say, an image can be printed on them by means of an ink that has been converted by heat from its solid state into a gas which penetrates the polyester coating of the mug to imprint the image on the ceramic surface.

2 Following a complaint lodged on behalf of European Union producers, the Commission opened an anti-dumping proceeding on 16 February 2012 concerning imports of ceramic tableware and kitchenware originating in the People’s Republic China, and published a notice relating to the initiation of that procedure (OJ 2012 C 44, p. 22).

3 The investigation covered the period from 1 January to 31 December 2011 (‘the investigation period’) and the examination of the trends relevant for the assessment of injury covered the period from 1 January 2008 to the end of the investigation period (‘the period considered’).

4 On 14 November 2012, the Commission adopted Regulation (EU) No 1072/2012 imposing a provisional anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2012 L 318, p. 28; ‘the provisional regulation’).

5 By the provisional regulation, the Commission restricted ‘the products concerned’ by the investigation to ceramic tableware and kitchenware, excluding ceramic knives, falling within CN codes ex 6911 10 00, ex 6912 00 10, ex 6912 00 30, ex 6912 00 50 and ex 6912 00 90 and originating in China.

6 At a hearing which took place on 23 January 2013, the applicant submitted observations to the Commission and, in particular, requested that plain polyester coated ceramic mugs be excluded from the products concerned by the investigation.

7 On 4 February 2013, the applicant submitted additional observations to the Commission.

8 On 1 March 2013, the applicant received the final disclosure document provided for in Article 20 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; corrigendum OJ 2010 L 7, p. 22, ‘the basic regulation’). In that document, the Commission states that the request for the exclusion of plain polyester coated ceramic mugs from the scope of the investigation had been rejected.

9 On 22 March 2013, the applicant submitted additional observations to the Commission.

10 On 15 May 2013, the Council of the European Union adopted Implementing Regulation (EU) No 412/2013 imposing a definitive anti‑dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2013 L 131, p. 1; ‘the contested regulation’).

11 In the contested regulation, the Council rejects the request for specially coated stoneware products of a kind used for sublimation printing to be excluded from the definition of the product concerned.

1. A definitive anti-dumping duty is hereby imposed on imports of ceramic tableware and kitchenware, excluding ceramic knives, ceramic condiment or spice mills and their ceramic grinding parts, ceramic peelers, ceramic knife sharpeners and cordierite ceramic pizza-stones of a kind used for baking pizza or bread, currently falling within CN codes ex 6911 10 00, ex 6912 00 10, ex 6912 00 30, ex 6912 00 50 and ex 6912 00 90 (TARIC codes 6911 10 00 90, 6912 00 10 11, 6912 00 10 91, 6912 00 30 10, 6912 00 50 10 and 6912 00 90 10) and originating in the [People’s Republic of China].’

13 Under Article 1(2) of the contested regulation, a definitive anti-dumping duty of 17.9% is imposed on the applicant.

14 By application lodged at the Court Registry on 2 August 2013, the applicant brought the present action.

15 By document lodged at the Court Registry on 1 October 2013, the Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the Council.

17 By document lodged at the Court Registry on 8 November 2013, Ancàp SpA, Cerame-Unie AISBL, Confindustria Ceramica and Verband der Keramischen Industrie eV applied for leave to intervene in the present proceedings in support of the form of order sought by the Council.

18 On 12 November 2013, the General Court (Third Chamber) decided that a second exchange of pleadings was unnecessary.

19 By order of the same date, the President of the Third Chamber of the Court gave the Commission leave to intervene.

20 On 19 November 2013, the Commission waived its right to lodge a statement in intervention.

21 By order of 11 February 2014, the President of the Third Chamber of the Court gave Ancàp, Cerame-Unie, Confindustria Ceramica and Verband der Keramischen Industrie (‘the interveners’) leave to intervene. They lodged their statement in intervention within the prescribed period.

22 Upon hearing the Report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and to adopt a measure of organisation of procedure.

23 The parties presented oral argument and answered the questions put by the Court at the hearing on 24 June 2014.

– annul the contested regulation in so far as it imposes an anti‑dumping duty on it;

26 In support of its action, the applicant relies on four pleas in law, alleging respectively: (i) manifest error of assessment; (ii) infringement of Article 2(10) of the basic regulation; (iii) infringement of Article 3(7) of that regulation; and (iv) infringement of Article 3(2) of that regulation.

27 The applicant submits that the Council and the Commission (collectively, ‘the institutions’) made a manifest error of assessment by including plain polyester coated ceramic mugs in the definition of the product concerned by the investigation (‘the product concerned’). First, the institutions made a manifest error in their assessment of the factors to be taken into account in deciding that those products should be covered by that definition: the appearance, the end-use and the existence within the European Union of producers of plain polyester coated ceramic mugs. Secondly, if other factors had been taken into account — in these circumstances, physical, technical and chemical characteristics, distribution channels, consumer perception and interchangeability — it would have been clear that such mugs should be excluded from the products concerned.

28 In that regard, the Court notes that, although Article 1(4) of the basic regulation defines ‘like product’ as ‘a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration’, the basic regulation does not specify exactly how the product or range of products which may be subject to an anti-dumping investigation is to be defined, or require an intricate classification (see, to that effect, Case T‑170/94 Shanghai Bicycle v Council [1997] ECR II‑1383, paragraph 61).

29 According to settled case-law, the purpose of the definition of the product concerned in an anti-dumping investigation is to aid in drawing up the list of the products which will, if necessary, be subject to the imposition of anti-dumping duties. For the purposes of that process, the institutions may take account of a number of factors, such as, inter alia, the physical, technical and chemical characteristics of the products, their use, interchangeability, consumer perception, distribution channels, manufacturing process, costs of production and quality (Case T‑314/06 Whirlpool Europe v Council [2010] ECR II‑5005, paragraph 138, and Case T‑369/08 EWRIA and Others v Commission [2010] ECR II‑6283, paragraph 82).

30 In those circumstances, the examination of whether a specific product has been validly included in the list of products which will, if necessary, be subject to the imposition of anti-dumping duties must be carried out in the light of the characteristics of the product concerned as defined by the institutions, not in the light of the characteristics of the products comprising the product concerned or its sub-categories.

31 Indeed, products which are not identical in all respects may, because they correspond to the factors which the institutions took into account in defining the product concerned, come within the definition of that product and, in that context, be the subject of an anti-dumping investigation.

32 Therefore, in the present case, in order to determine whether plain polyester coated ceramic mugs had to be included within the definition of the product concerned, the characteristics of those mugs must be examined in the light of the characteristics of ceramic tableware and kitchenware, not solely those of ceramic mugs with no such coating.

33 Indeed, in reply to a question from the Court at the hearing, the applicant stated that its argument was intended to show that plain polyester coated ceramic mugs did not form part of the same product market as ceramic tableware and kitchenware.

34 Lastly, it is apparent from paragraph 29 above that the institutions have some latitude when establishing the relevant criteria to be taken into account in defining the products which may be subject to the imposition of anti-dumping duties. In that context, more than one method of weighting and assessing the various parameters will probably be objectively valid, so that the institutions are required to assess whether a specific product must come within the product concerned or must on the other hand be excluded from it. The reasons for that assessment must be set out in such a way that the EU judicature may review its legality. In that regard, in its review the Court verifies whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (Case C‑16/90 Nölle [1991] ECR I‑5163, paragraph 12, and Case C‑26/96 Rotexchemie [1997] ECR I‑2817, paragraph 11; Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243, paragraph 62).

35 The applicant’s arguments intended to show that plain polyester coated ceramic mugs had to be excluded from the definition of the product concerned must be examined in the light of those considerations.

36 In the present case, as regards, in the first place, the factors that the institutions found relevant, it must be noted that, as is apparent from recital 29 of the contested regulation, the Council gave three reasons for dismissing the claim that specially coated stoneware products of a kind for sublimation printing should be excluded. First, it stated that those products were visually identical to other non‑sublimated tableware and, therefore, it was difficult to distinguish between them, if at all. Secondly, it found that those products normally had the same end‑use as other types of ceramic tableware. Thirdly, it stated that several Union producers manufactured those products and that Union-made and imported products were in direct competition.

37 In that respect, first, the applicant’s argument that no plain polyester coated ceramic mugs are produced within the European Union must be rejected at the outset. Without it being necessary to rule on the merits of that assertion, it is sufficient to note that the fact that those mugs may not be produced within the European Union is not determinative. The decisive question is whether that type of mug is, on account of its characteristics and, therefore, the perception which consumers have of it, in competition with products of European Union production. That consideration is not called in question by the applicant’s argument that, in numerous anti-dumping investigations, the absence of Union production served as the basis or an additional reason for the exclusion of a product from the scope of the investigation. The applicant relies on just one regulation in support of its argument, namely Council Regulation (EC) No 2155/97 of 29 October 1997 imposing a definitive anti-dumping duty on imports of certain footwear with textile uppers originating in the People’s Republic of China and Indonesia and collecting definitively the provisional duty imposed (OJ 1997 L 298, p. 1). It is apparent from that regulation that the product at issue was still being produced in the European Union, even though production was of marginal importance, and that the main ground for excluding that product from the investigation was linked to the fact that such products could be distinguished from all the other types of footwear subject to the investigation. In addition, the Court must also reject the contention that the identities of the Union producers have not been disclosed nor whether any of the complainants or sampled producers produced plain polyester coated ceramic mugs. There is nothing to indicate that, during the investigation, the applicant sought such information — the Council states that the applicant did not do so — even though it is clear from the file that was available to the applicant that the complaining Union industry in the present investigation has made a submission referring to the existence of several producers of the mugs in question in the Union. In any event, it is apparent from the file that plain polyester coated ceramic mugs are produced in the European Union, with the Council and the interveners having adduced evidence showing that there are Union producers of such mugs. The Council’s assessment concerning the Union producers, in recital 29 of the contested regulation, cannot therefore be considered vitiated by an error. Lastly, having regard to the foregoing, there is no reason to order the measure of organisation of procedure by which the applicant seeks an order that the Commission produce the relevant documents and information in that context.

38 As regards, secondly, end-use, the applicant submits that plain polyester coated ceramic mugs are a semi-finished product, which is further processed in the European Union, in this case by means of printing, so that they are primarily utilised in the Union industry, in contrast to the other products included within the definition of the product concerned, which are primarily aimed at being in contact with food. However, it must be found that, even though the mugs in question may be processed further in the European Union and even if they may be intended as gifts or souvenirs, as the applicant claims, the fact remains that this has no bearing on their potential end-use after processing. Those mugs may, ultimately, be aimed at being in contact with food, the criterion of use considered relevant by the Council for the definition of the product concerned, as is apparent from recital 54 of the provisional regulation, which was confirmed by the contested regulation, as is clear from recital 37 thereof. Nothing in the documents before the Court gives grounds for considering that the end-use of plain polyester coated ceramic mugs differs substantially from that of the other ceramic products concerned. In particular, there is no proof that a consumer would use those mugs solely for purposes other than being in contact with food or beverages, as in the case of the ceramic ware covered by the product concerned.

39 As regards, thirdly, appearance, the applicant submits essentially that plain polyester coated ceramic mugs are visually distinct from other ceramic mugs, but that, in any event, that criterion is irrelevant in the present case. In that regard, it must be borne in mind that, as is apparent from paragraph 30 above, the examination of whether a specific product has been validly included in the list of products which will, if necessary, be subject to the imposition of anti-dumping duties must be assessed in the light of the general definition of the product concerned, not a specific sub-category thereof. Even though, as the Court found at the hearing, plain polyester coated ceramic mugs are visually identical, or at least similar, to ceramic mugs without such a coating, the fact remains that, in any event — as the applicant submits — physical appearance is not a relevant criterion in the present case, since the various categories of products included in the definition of the product concerned by the investigation are not visually similar. Accordingly, for example, a ceramic mug is not physically similar to a ceramic plate, a ceramic jar, a ceramic saucer or a ceramic serviette ring, whereas all those products are included within the definition of the product concerned. In those circumstances, in the present case, the fact that products belonging to the same category are visually similar is not relevant to determining whether or not they come within the products concerned. It follows that the Council’s arguments that, in essence, plain polyester coated ceramic mugs have no different requirements in terms of size and dimension than other ceramic mugs are irrelevant. It follows from the foregoing that the Council erred in finding, in recital 29 of the contested regulation, that the mugs in question were ‘visibly identical to other non-sublimated tableware and, therefore, it [wa]s difficult to distinguish between them, if at all’ in order to determine whether those mugs had to be excluded from the products concerned.

40 As regards, in the second place, the application of other factors which might have given grounds for excluding the mugs in question from the definition of the product concerned, the applicant refers to physical, technical and chemical characteristics, distribution channels, consumer perception and interchangeability.

41 As regards, first, physical, technical and chemical characteristics, the applicant submits, in essence, that those characteristics of plain polyester coated ceramic mugs are different from those of the other tableware and kitchenware because of the presence of the polyester coating. In that regard, it must be recalled, first of all, that the EU institutions may take account of a number of factors when defining the product concerned, among which the physical, technical and chemical characteristics of the products are naturally important, but without necessarily having priority. In any event, it cannot be considered that the differences in the physical or technical characteristics are relevant only when they are reflected in consumer perception (Whirlpool Europe v Council, cited above, paragraph 141). The applicant’s line of argument must thus be rejected at the outset in so far as it is focussed on the consumer’s perception of those characteristics. Next, there is nothing to establish that the physical, technical and chemical differences between plain polyester coated ceramic mugs and other ceramic tableware and kitchenware are so significant that plain polyester coated ceramic mugs should be excluded from the products concerned by the investigation. In particular, there is nothing to indicate that the differences linked to the mere presence of a special coating for sublimation printing are determinative, in relation, in particular, to ceramic mugs or other ceramic items which might have a different coating or be decorated by other means. The applicant has also failed to show that those differences — as it claims — drive consumer perception and, thus, competitive relationships with other products. Moreover, there is nothing to permit the inference that the other products included in the definition of the product concerned could not be coated with the coating in question and, therefore, undergo sublimation printing. In addition, there is no evidence that, having regard to their diverse nature, all the products included in the definition of the product concerned are physically, technically and chemically similar.

42 In those circumstances, the applicant’s arguments concerning physical, technical and chemical characteristics must be rejected.

43 As regards, secondly, distribution channels, the applicant submits that plain polyester coated ceramic mugs are aimed at undertakings active in the printing industry or in the sale of products intended for printing whereas other tableware and kitchenware is distributed via independent retailers, non-specialised supermarkets or department stores, as was found in the provisional regulation. However, the applicant adduces no evidence in support of that assertion, simply referring to a list of customers. In addition, although the applicant states that its clients are principally in the printing sector, the fact remains that retailers selling ceramic tableware and kitchenware may also sell plain polyester coated ceramic mugs. Indeed, the Council has adduced evidence that one retailer in fact sells ordinary ceramic mugs as well as plain polyester coated ceramic mugs which may be personalised through sublimation printing. Similarly, it has adduced evidence that some of the applicant’s customers do not solely market mugs for sublimation printing, such as those mugs referred to by the applicant, but also other ceramic mugs which might have a different coating or be decorated by other means. As regards the applicant’s argument that plain polyester coated ceramic mugs are almost always promoted as individualised pieces, while other items of uncoated ceramic tableware and kitchenware are often included in sets, this is not substantiated by any evidence, there being nothing to indicate moreover that ordinary ceramic mugs are not promoted as individualised pieces.

44 In those circumstances, the applicant’s argument that there are readily perceivable and accepted separate channels of distribution must be rejected.

45 As regards, thirdly, consumer perception, the applicant submits that consumers do not perceive plain polyester coated ceramic mugs to be in competition with ordinary uncoated mugs. In that regard, it must be borne in mind that, as stated in paragraph 30 above, the examination of whether a specific product has been validly included in the list of products which will, if necessary, be subject to the imposition of anti-dumping duties must be carried out in the light of the general definition of the product concerned, not a specific sub-category thereof. Consumer perception must therefore be examined in the context of ceramic tableware and kitchenware, not solely ceramic mugs as implied by the applicant’s line of argument. In any event, even if that is not the case, it is to be noted that, contrary to what the applicant in essence implies, there is no evidence to suggest that a consumer, whose perception must be assessed at the finished product stage, will perceive a difference between plain polyester coated ceramic mugs which have been subject to sublimation printing and the other mugs with a different coating or decorated by other means. Moreover, it is apparent from the file that retailers sell both types of mug. There is no evidence that, as the applicant maintains, the objective physical characteristics of plain polyester coated ceramic mugs can be perceived by a consumer. The same applies to the statement that it is not until the sublimation printing is complete that a consumer can perceive the mug as a finished product. In that regard, it must be noted that, although the mugs can indeed undergo that specific processing, the fact remains that their potential function of containing beverages may be performed without that printing, in the same manner as an ordinary ceramic mug. Indeed, as the Council notes, before being marketed, ordinary mugs may need further processing by adding decorative elements, if necessary through a technique other than sublimation printing; the interveners refer, inter alia, to decals or digital painting. As regards the applicant’s argument concerning distribution channels, this has already been rejected. Lastly, there is nothing to suggest that if a consumer wishes to purchase a mug for use as a gift or souvenir, he will purchase a mug with a particular coating to which an image is added, as argued by the applicant. In particular, it cannot be ruled out that, in such a case, a consumer will choose an ordinary mug with a different coating or on which a decoration has been added by a technique other than sublimation.

46 In those circumstances, the applicant’s arguments concerning consumer perception must be rejected.

47 As regards, fourthly, interchangeability, the applicant submits that the ‘twofold interchangeability test’ establishes that plain polyester coated ceramic mugs can replace other common mugs and be used to contain beverages, but that ordinary mugs cannot replace plain polyester coated ceramic mugs, as it is not possible to use other ceramic items for sublimation printing.

48 In that regard, it must be noted at the outset that the Commission is under no obligation to carry out the twofold test referred to by the applicant, which, it claims, was applied in a previous investigation. There is nothing in law to indicate that such a test must as a matter of course be carried out and the institutions are obliged only to apply the appropriate test in each case. In addition, in accordance with the findings set out in paragraph 30 above, the interchangeability assessment cannot be carried out between plain polyester coated ceramic mugs and the other types of mugs, but between plain polyester coated ceramic mugs and tableware and kitchenware. In addition, in the light of the great diversity of the products included in the definition of the product concerned, interchangeability is not a relevant criterion for determining, in the present case, whether or not a product comes within the general category of tableware and kitchenware. In any event, for the sake of completeness, it must be noted that it is apparent from the applicant’s arguments that it acknowledges itself that the plain polyester coated ceramic mugs may replace other common mugs, thereby conceding indirectly that the mugs in question are interchangeable. In addition, while it is true, as the applicant maintains, that, because of the absence of a special coating, common mugs cannot undergo sublimation printing, they may be decorated by other means, so that those finished products are similar and therefore interchangeable. Accordingly, the various types of mug overlap and are in competition to a certain degree.

49 In those circumstances, the applicant’s arguments concerning interchangeability must be rejected.

50 As regards, fifthly, product price, it is to be noted that, in the application, the applicant does not develop, in support of the first plea in law, substantiated arguments to show that the differences in price between plain polyester coated ceramic mugs and ceramic tableware and kitchenware, or mugs with no such coating, were a factor which would have required the mugs in question to be excluded from the definition of the product concerned. In those circumstances, the arguments put forward at the hearing, which might relate to the line of argument in question, must be rejected as inadmissible. Moreover, as is apparent from paragraph 62 below, they can only be rejected.

51 It follows from the foregoing that, even though the Council erred in finding, in recital 29 of the contested regulation, that the mugs in question were ‘visibly identical to other non-sublimated tableware and, therefore, it [wa]s difficult to distinguish between them, if at all’, in order to determine whether those mugs had to be excluded from the products concerned, the fact remains that the applicant has not shown that the Council made a manifest error of assessment concerning the other criteria which were taken into account in order to include the plain polyester coated ceramic mugs in the definition of the product concerned. Nor has the applicant established that taking into account other factors would have given grounds for excluding those mugs from that definition.

53 The applicant submits that, by grouping plain polyester coated ceramic mugs together with other types of ceramic mug for the purposes of the fair comparison required under Article 2(10) of the basic regulation, despite the considerable differences between those products, the institutions infringed that provision.

54 In that regard, it should be observed that, pursuant to Article 1(2) of the basic regulation, a product is to be considered as being dumped if its export price to the European Union is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.

55 Article 4(1) of the basic regulation defines ‘like product’ as a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

56 Article 2(10) of the basic regulation requires a fair comparison to be made between the export price and normal value.

57 In the present case, it is apparent from recital 70 of the contested regulation that, for the purposes of ensuring a fair comparison between the normal value and the export price, due allowances in the form of adjustments were made for differences affecting price and price comparability in accordance with Article 2(10) of the basic regulation. In addition, adjustments were made, where appropriate, in respect of differences in physical characteristics, level of trade and for other factors affecting price comparability, notably branding.

58 In particular, in recitals 71 to 88 of that regulation, the Council examined whether an adjustment in the light of differences in physical characteristics was warranted.

59 The applicant objects that the incorrect grouping used by the institutions has led to a comparison of products which have considerable differences and which do not even compete with each other.

60 In that regard, it must, first of all, be pointed out that it is not apparent from the file that the applicant requested, during the administrative procedure, an adjustment on the basis of Article 2(10) of the basic regulation, on the grounds on which it relies in the present plea. The Council indeed states that such a request was not made.

61 Next, as regards the applicant’s argument alleging the existence of considerable differences between the mugs in question and other types of tableware and kitchenware, it must be borne in mind that, as is apparent from examination of the first plea in law, the institutions did not make a manifest error of assessment in including the plain polyester coated ceramic mugs in the products concerned. In any event, even if those differences exist, substantial differences may also be noted between all the products included in the definition of the product concerned (see, in particular, paragraph 39 above).

62 Lastly, as regards the argument that those mugs are almost twice the cost of uncoated common ceramic tableware and kitchenware, it must be found that the applicant merely asserts this. It adduces no evidence capable of proving that price difference. Moreover, as the interveners contend, prices at the same level of production should be compared, not those of a semi-finished product and a finished product. In any event, even if that difference is established, there is no evidence to preclude that, in the light of the significant disparities between the relevant products, there are considerable differences also between other categories of the products concerned. In addition, it follows from recital 77 of the contested regulation that the Commission analysed in depth the product types included within the definition of the product concerned and compared the export price with the closest resembling product type produced and sold in the analogue country. The applicant has adduced no evidence capable of calling that analysis into question.

63 It follows from all the foregoing that the second plea in law must be rejected.

64 The applicant submits that the institutions made a manifest error of assessment in finding that the anti-competitive practices investigated by the Bundeskartellamt (the German competition authority) had no effect on microeconomic and macroeconomic indicators and, accordingly, the institutions infringed Article 3(7) of the basic regulation.

65 In that regard, as can be seen from Article 3(6) of the basic regulation, the institutions must demonstrate that the dumped imports are causing material injury to the European Union industry, regard being had to their volume and their price. That entails an ‘attribution analysis’ (Case T‑6/12 Godrej Industries and VVF v Council [2013] ECR, cited above, paragraph 62).

66 It also follows from Article 3(7) of the basic regulation that the institutions must examine all other known factors which are injuring the European Union industry at the same time as the dumped imports and, moreover, ensure that the injury caused by those other factors is not attributed to the dumped imports. That entails a ‘non-attribution analysis’ (Godrej Industries and VVF v Council, paragraph 62).

67 It follows from that provision that factors which may be considered relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and European Union producers, developments in technology and the export performance and productivity of the European Union industry.

68 The objective of Article 3(6) and (7) of the basic regulation is therefore to ensure that the Union institutions separate and distinguish the injurious effects of the dumped imports from those caused by other factors. If the institutions do not separate and distinguish the impact of the various injury factors, they cannot legitimately conclude that the dumped imports have caused injury to the Union industry (Godrej Industries and VVF v Council, cited above, paragraph 63).

69 It is to be noted lastly that, when determining the injury, the institutions must, in particular, examine whether the injury which they propose to find might have its cause in the conduct of the Union producers themselves (see Godrej Industries and VVF v Council, cited in paragraph 64 above, and the case-law cited).

70 In the present case, it is apparent from recital 175 of the provisional regulation that the Commission took the view that the outcomes of the Bundeskartellamt investigation had still not been made public by the German authorities, so no conclusions could be drawn on that point, and that the investigation concerned only one Member State, while the Union industry is quite widespread.

71 In addition, the Council stated, in recital 169 of the contested regulation, that the investigation was still on-going. It also stated in that recital that, as the Union producers had been granted confidentiality and in view of the fact that the final results of the Bundeskartellamt investigation had not yet been publicly released, it was not possible to comment on the details of the analysis carried out. The Council stated, however, that it could be confirmed that none of the sampled Union producers was subject to that on-going investigation. It also stated that the investigation concluded that the microeconomic indicators had not been affected by the investigated practices and the macroeconomic indicators only to a very limited extent, if any.

72 In conclusion, in recital 171 of the contested regulation, the Council rejected the allegations concerning the impact, in particular, of the Bundeskartellamt investigation on the injury and causation analysis and, in recital 173 of that regulation, confirmed the assessments made in recitals 174 to 176 of the provisional regulation.

73 In that regard, it must be noted at the outset that it is not disputed that, when the contested regulation was adopted, the Bundeskartellamt investigation was still ongoing and not therefore closed, only ending on 16 October 2013, that is after the present action was brought. In those circumstances, at that date, the restrictive practices referred to by the applicant had not been found to exist by a binding decision of the relevant German authority, so that the institutions could not take them into consideration. In that context, it must be pointed out that among the factors which Article 3(7) of the basic regulation states may be considered relevant, are, inter alia, restrictive trade practices of Union producers. Since the Bundeskartellamt investigation had not been closed at the time of the adoption of the contested regulation, no restrictive practices of Union producers could be considered established by the relevant authority and properly found.

74 Moreover, it must be noted that the Bundeskartellamt investigation related to a period between July 2005 and February 2008, that last date being confirmed by the Council at the hearing, so that that investigation concerned a period which, first, did not correspond to the investigation period at issue in the present case and, secondly, corresponded at most to two months of the period considered.

75 In any event, the Court rejects the applicant’s complaints regarding the Council’s statements in the contested regulation relating (i) to the fact that none of the sampled Union producers was subject to the Bundeskartellamt investigation and (ii) the fact that that investigation concerned only Germany.

76 In that regard, it must be pointed out, first of all, that, contrary to what the applicant implies, the Council did not base its conclusion that the microeconomic indicators had not been affected by the practices at issue on the fact that the sample did not include a producer subject to the Bundeskartellamt investigation, but, as is apparent from recital 169 of the contested regulation, on the investigation carried out in the present case. The argument based on the criterion that none of the undertakings sampled was subject to the Bundeskartellamt investigation is therefore ineffective. There are therefore no grounds for proceeding with the measure of inquiry requested by the applicant, under which the Council should submit the relevant evidence concerning the composition of the sample.

77 Next, it must be noted that, according to recital 118 of the contested regulation, the macroeconomic indicators were assessed at the level of the whole Union industry, while the microeconomic ones were analysed at the level of the sampled Union producers, which included non-complaining companies. However, the applicant has neither argued nor adduced evidence to show that that method of analysis is misconceived.

78 As regards the applicant’s argument that even if none of the sampled Union producers was subject to the Bundeskartellamt investigation, that does not mean that their microeconomic indicators have not been affected by the practices at issue, it is apparent from the contested regulation that the microeconomic indicators were not affected by the practices at issue. In that regard, the Council states in its defence that the Commission investigated whether those practices could have affected the microeconomic indicators for the injury assessment, namely stocks, sale prices, profitability, cash flow, investments, return on investments, ability to raise capital, wages and cost of production, and concluded that they had not been affected. The applicant has not adduced any evidence capable of calling those statements into question.

79 The applicant’s arguments relating to the adverse effect of the practices at issue on the microeconomic indicators must therefore be rejected.

80 As regards the applicant’s arguments relating to the adverse effect on the macroeconomic data, the Court notes that, having regard to the fact, found by the Council, that the Bundeskartellamt investigation concerned only one Member State and that, in addition, as has been noted, it related to a period not overlapping with the investigation period in question in the present case – and overlapping only in a very limited manner with the period considered ‑ the Council did not err in finding that the macroeconomic indicators could be affected only to a very limited extent by the alleged practices in question.

81 That conclusion is not called in question by the fact that Germany is a major producer of tableware and kitchenware and that a cartel would have had a significant impact both inside and outside of Germany, because the relevant periods in the anti-dumping and Bundeskartellamt investigations do not overlap or overlap in a limited manner only. In that context, it must be added that it is apparent from the file that German production represents not more than 17% of the EU production and the German market not more than 16% of the EU market of the product concerned, so that the applicant is wrong to claim that the anti‑competitive practices at issue affected 53% of the trade in that product in the European Union.

82 The applicant’s reference to Council Regulation (EC) No 1095/2005 of 12 July 2005 imposing a definitive anti-dumping duty on imports of bicycles originating in Vietnam, and amending Regulation (EC) No 1524/2000 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China (OJ 2005 L 183, p. 1) is irrelevant. In that regulation, the institutions took into account a decision of the national competition authorities finding the existence of anti-competitive behaviour on the part of EU producers — sampled during the investigation in the case giving rise to that regulation — and imposing fines on them. The existence of an overlap between the anti-competitive behaviour and the period considered was also taken into account. However, in the present case, as has been noted, at the date of adoption of the contested regulation, the Bundeskartellamt had not adopted a decision finding that an infringement had been committed. In addition, the overlap between the anti-competitive conduct at issue and the period considered is very limited.

83 The applicant’s arguments relating to the adverse effect of the practices at issue on the macroeconomic factors must therefore be rejected.

84 It follows from all of the foregoing that the third plea in law must be rejected.

85 The applicant submits that, as a consequence of the error alleged by the third plea in law, the institutions failed to carry out an objective examination of the situation of the Union industry and, accordingly, the institutions infringed Article 3(2) of the basic regulation.

86 In that regard, it should be borne in mind that Article 1(1) of the basic regulation provides that ‘[a]n anti-dumping duty may be applied to any dumped product whose release for free circulation in the [Union] causes injury’.

87 Article 3(2) of the basic regulation states that a determination of injury must be based on positive evidence and involve an objective examination.

88 In the present case, it is sufficient to note that the fourth plea in law is based on the premiss that the institutions erred in concluding that micro- and macroeconomic injury indicators had not been affected by the alleged anti‑competitive practices that were the subject of the Bundeskartellamt investigation.

89 As is apparent from the examination of the third plea in law, such a premiss is misconceived.

90 It follows that the fourth plea in law must be rejected and the action therefore dismissed in its entirety.

91 Under Article 87(2) of the Rules of Procedure of the General Court, 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 applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the Council and the interveners.

92 In accordance with Article 87(4) of the Rules of Procedure, the Commission must bear its own costs.

2. Orders Photo USA Electronic Graphic, Inc. to bear its own costs and to pay those incurred by the Council of the European Union and by Ancàp SpA, Cerame-Unie AISBL, Confindustria Ceramica and Verband der Keramischen Industrie eV;

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Photo USA Electronic Graphic v Council (Judgment) [2014] EUECJ T-394/13 (18 November 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/T39413.html Cite as: [2014] EUECJ T-394/13, EU:T:2014:964, ECLI:EU:T:2014:964

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