Crown Equipment (Suzhou) and Crown Gabelstapler v Council (Judgment) [2016] EUECJ T-351/13 (18 October 2016)

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(Dumping — Importation of hand pallet trucks and their essential parts originating in China — Definitive anti-dumping duty — Action for annulment — Direct concern — Individual concern — Admissibility — Determination of normal value — Article 2(7)(a) of Regulation (EC) No 1225/2009 — ‘Lesser duty’ rule — Article 9(4) of Regulation No 1225/2009 — Obligation to state reasons)

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

European Commission, represented by M. França and T. Maxian Rusche, acting as Agents,

ACTION pursuant to Article 263 TFEU for annulment of Council Implementing Regulation (EU) No 372/2013 of 22 April 2013 amending Implementing Regulation (EU) No 1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2013 L 112, p. 1),

composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 11 September 2015,

1 The first applicant, Crown Equipment (Suzhou) Co. Ltd, is a company governed by Chinese law which produces hand pallet trucks and their essential parts. The second applicant, Crown Gabelstapler GmbH & Co. KG, is a company governed by German law and associated with the first applicant, which imports into the European Union hand pallet trucks and their essential parts produced by the first applicant.

2 On 18 July 2005, the Council of the European Union adopted Regulation (EC) No 1174/2005 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China (OJ 2005 L 189, p. 1). The measures took the form of an ad valorem duty ranging between 7.6% and 46.7%.

3 On 17 July 2008, the Council adopted Regulation (EC) No 684/2008 clarifying the scope of the anti-dumping measures imposed by Regulation No 1174/2005 (OJ 2008 L 192, p. 1). In that regulation, the Council clarified the definition of the products concerned provided in the original investigation.

4 On 11 June 2009, the Council adopted Regulation (EC) No 499/2009 extending the definitive anti-dumping duty imposed by Regulation No 1174/2005 to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not (OJ 2009 L 151, p. 1).

5 On 21 April 2010, following the publication of a Notice of the impending expiry of certain anti-dumping measures (OJ 2010 C 70, p. 29), in which the Commission gave notice that the definitive anti-dumping measures in force pursuant to Regulation No 1174/2005 would expire on 22 July 2010, the Commission received a request from two producers in the European Union to initiate an expiry review of those measures pursuant to Article 11(2) 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) (‘the basic regulation’).

6 On 10 October 2011, the Council adopted Implementing Regulation (EU) No 1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China as extended to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not, following an expiry review of the measures pursuant to Article 11(2) of Regulation No 1225/2009 (OJ 2011 L 268, p. 1). That regulation extended the application of the anti-dumping duty imposed by Regulation No 1174/2005 for five additional years. A 46.7% ad valorem duty was thus imposed on the applicants’ imports for five additional years.

7 On 14 February 2012, the Commission announced the ex officio initiation of a partial interim review limited in scope to the examination of dumping in respect of Chinese exporting producers pursuant to Article 11(3) of the basic regulation. The initiation of the review was justified by changes of a lasting nature in the circumstances that had resulted in the imposition of the existing measures. The investigation of dumping covered the period from 1 January to 31 December 2011 (‘the review investigation period’ or ‘the RIP’).

8 The applicants submitted their observations during the investigation but failed to complete the questionnaire within the prescribed period. They took part in the proceedings and received on 7 February 2013 the General Disclosure Document setting out the essential facts and considerations on the basis of which the Commission intended to propose amendments to the measures in force. The applicants submitted their observations on the General Disclosure Document.

9 On 7 March 2013, a hearing took place on Commission premises, during which the applicants submitted their views on the General Disclosure Document. On 8 March 2013, the Commission informed the applicants that it had decided to adjust differences in the thickness of steel in the course of the determination of the dumping margin following comments made after receiving the General Disclosure Document.

10 On 22 April 2013, the Council adopted Implementing Regulation (EU) No 372/2013 amending Implementing Regulation No 1008/2001 (OJ 2013 L 112, p. 1) (‘the contested regulation’). In that regulation, the Council stated that it had been considered that Brazil was the appropriate analogue country because there was sufficient competition in that country. In addition, it took the view that, in the light of the results of the review investigation and since the new 70.8% dumping margin was lower than the injury elimination level established in the original investigation, the anti-dumping duty applicable to imports of hand pallet trucks and their essential parts originating in China must be increased to 70.8%.

11 By application lodged at the Court Registry on 2 July 2013, the applicants brought the present action.

12 By document lodged at the Court Registry 5 September 2013, the Commission applied for leave to intervene in support of the form of order sought by the Council.

13 By order of 19 November 2013, the President of the Fourth Chamber granted the Commission leave to intervene.

14 By way of measures of organisation of procedure, the Court (Fourth Chamber) called on the parties to reply to a number of questions. The parties provided their answers within the prescribed period.

– order the Council to bear its own costs and to pay those incurred by the applicants;

– in the alternative, annul the contested regulation only in so far as the duty exceeds the rate that would have been applied if the import duty had been deducted from the normal value so far as concerns the applicants;

– further in the alternative, annul the contested regulation only in so far as the duty exceeds the rate that would have been applied if the import duty had been deducted from the normal value so far as concerns the applicants;

– order the applicant to pay the costs, including those incurred by the intervener.

18 In its statement in intervention, the Commission contends that the action is inadmissible on the ground that (i) the contested regulation is a regulatory act which entails implementing measures and (ii) the contested regulation is not of direct and individual concern to the applicants. The applicants are of the view that the Commission’s plea of inadmissibility is inadmissible on the ground that the Council, in its pleadings, did not claim that the action was inadmissible, and that an application to intervene is limited to supporting the form of order of one of the main parties.

19 It should be noted that the criterion which makes the admissibility of an action brought by a natural or legal person against a decision addressed to another person subject to the conditions governing admissibility laid down in the fourth subparagraph of Article 263 TFEU raises an absolute bar to proceeding, which the EU Courts may consider at any time, even of their own motion (judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, not published, EU:C:2007:730, paragraph 18, and of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 32). It follows that the fourth subparagraph of Article 40 of the Statute of the Court of Justice of the European Union, which provides that an application to intervene is limited to supporting the form of order of one of the parties, is no obstacle to the Court’s examination of that plea of inadmissibility (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraphs 37 and 38).

20 Moreover, at the hearing, the Council raised the issue of the inadmissibility of the action by adopting the Commission’s arguments. However, since the plea of inadmissibility concerns a matter of public policy, the Council was properly entitled to raise it for the first time at the hearing (see, to that effect, judgment of 16 January 2014, BP Products North America v Council, T‑385/11, EU:T:2014:7, paragraphs 65 to 78).

21 Since both the Commission and the Council were properly entitled to raise the issue of the inadmissibility of the applicant’s action, the Court must examine their plea of inadmissibility.

22 Under the second part of the fourth subparagraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act which is of direct and individual concern to them.

23 With regard to the requirement for direct concern, it must be recalled that the measure in question must have a direct effect on the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from the rule in question without the application of other intermediate rules (judgments of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraph 43; of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45; and order of 9 July 2013, Regione Puglia v Commission, C‑586/11 P, not published, EU:C:2013:459, paragraph 31).

24 In the present case, both the first applicant — an exporting producer of the products at issue — and the second applicant — an importer of the products at issue — are directly concerned by the contested regulation since it imposes on the applicants’ products an anti-dumping duty obliging the customs authorities of the Member States to levy that duty without leaving them any discretion. That finding is supported by the case-law acknowledging that an anti-dumping regulation that imposes anti-dumping duties on the products of producers or importers is of direct concern to those producers (see, to that effect, judgment of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 41 and the case-law cited) and importers (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 26 and the case-law cited).

25 With regard to the requirement of individual concern to the applicants, it should be recalled that, although it is true that regulations imposing anti-dumping duties are of general application in that they apply to all the economic operators concerned, some of their provisions may nonetheless be of individual concern to particular traders (see, to that effect, judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraph 11; of 20 June 2000, Euromin v Council, T‑597/97, EU:T:2000:157, paragraph 43; and of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 43).

26 It follows from that case-law that measures imposing anti-dumping duties may, without losing their general scope, be of individual concern in certain circumstances to certain traders who therefore have standing to bring an action for their annulment (judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 14).

27 It has thus been held that regulations imposing an anti-dumping duty are of direct and individual concern, inter alia, to those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraph 12; of 11 July 1990, Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraph 19; and of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 21).

28 An exporting producer which was expressly named in an anti-dumping regulation was accordingly found to be individually concerned by that regulation (see, to that effect, judgments of 7 May 1987, Nachi Fujikoshi v Council, 255/84, EU:C:1987:203, paragraph 6, and Koyo Seiko v Council, 256/84, EU:C:1987:204, paragraph 5).

29 In the present case, recital 35 of the contested regulation refers to the first applicant in that it states that ‘two exporting producers ... objected to the proposal to use Brazil as an analogue country’, that ‘the[ir] arguments against the choice of Brazil were that there was a low degree of competition on the Brazilian market for hand pallet trucks due to the very small number of domestic producers and, thus, sales prices, profits as well as production costs in Brazil [we]re inflated’ and that ‘[they] suggested India, Malaysia or Taiwan as appropriate analogue countries’. In the letter of 24 February 2012, addressed by the first applicant’s representative to the Commission, the representative objected to the proposal to use Brazil as an analogue country due to the fact that there were only two Brazilian producers of hand pallet trucks, and he suggested India as a suitable analogue country. The representative specified that, for the purpose of determining the normal value, it was important for the institutions to seek cooperation from producers in India, Malaysia or Taiwan.

30 In addition, recital 43 of the contested regulation states that one party had argued that an adjustment should be made to account for the allegedly distorting effect of the 14% import duty in the analogue country. As is apparent from the letter of the first applicant’s representative of 24 February 2012 as well as its letter of 20 February 2013, the representative argued that Brazil imposed a 14% import duty on hand pallet trucks. Moreover, in the letter of 20 February 2013, the first applicant’s representative took the view that the price of the Brazilian producer’s hand pallet trucks should be reduced by 14%.

31 Lastly, recital 84 of the contested regulation states that one party claimed that a minimum import price would be more appropriate in the present case or that a fixed duty should be imposed, thus also referring to the letter of 20 February 2013 in which the first applicant’s representative had raised that argument.

32 Consequently, the Court must find that the first applicant, which was an exporting producer of hand pallet trucks, was clearly identified in the contested regulation and that, in accordance with the case-law cited in paragraphs 27 and 29 of the present judgment, the contested regulation must therefore be considered to be of individual concern to the first applicant.

33 That finding cannot be called into question by the fact that the first applicant was not expressly named in the contested regulation. Such an approach would be formalistic and contrary to the case-law (see, to that effect, judgment of 13 September 2013, Huvis v Council, T‑536/08, not published, EU:T:2013:432, paragraphs 25 and 27). Moreover, it is also irrelevant that the rate of anti-dumping duties imposed on the first applicant was the same as that imposed on other Chinese operators, given that, in the judgment of 13 September 2013, Cixi Jiangnan Chemical Fiber and Others v Council (T‑537/08, not published, EU:T:2013:428, paragraphs 2 and 25 to 27), the action brought by exporting producer Xiake Color Spinning, which was identified in one of the recitals of the regulation at issue, was held to be admissible, notwithstanding the fact that, under the regulation at issue, it was subject to a 49.7% rate, which was the common rate for all the exporting producers of the products at issue which were not subject to a specific rate.

34 Furthermore, the Court notes that the applicants took part in the preliminary investigation. Through their representatives, (i) they submitted their observations on the suitability of the selected analogue country (see letter of 24 February 2012), (ii) they submitted their point of view on the use of sampling (see letter of 29 February 2012), (iii) they commented on the General Disclosure Document of the Commission (see letter of 20 February 2013) and (iv) they attended the hearing of 7 March 2013 organised by the Commission. Their participation was mentioned in the contested regulation.

35 It is true that the applicants failed to reply to the Commission’s questionnaire on the ground that drafting such a reply would have increased their workload during the preparation of their annual accounts. Nonetheless, that failure to reply is not sufficient for a finding that the applicants’ participation in the administrative procedure fell short of the requisite legal standard, given that they intervened on other occasions in the procedure.

36 In addition, it is clear from settled case-law that where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (see judgment of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59 and the case-law cited).

37 Here, the first applicant’s standing as a member of a limited class of traders is based on the fact that, as for other Chinese exporting producers of hand pallet trucks, it was subject to the definitive anti-dumping duty imposed by Implementing Regulation No 1008/2011 at the time when that regulation was subject to a partial interim review limited in scope to the examination of dumping in respect of Chinese exporting producers. That review led to the adoption of the contested regulation. However, at the time when the regulation was adopted, the exact number of companies subject to the definitive anti-dumping duty imposed by Implementing Regulation No 1008/2011 was established, as well as their identity. In addition, the contested regulation had the effect, as from its entry into force, of altering the rate of the definitive anti-dumping duty applicable to the Chinese importers. In fact, that rate increased from a 47.6% ad valorem duty to a 70.8% duty on imports of hand pallet trucks and their essential parts originating in China. It follows that the first applicant forms part of a limited class of traders, a fact which singles it out in the contested regulation.

38 Consequently, for the reasons given above, the contested regulation must be considered to be of direct and individual concern to the first applicant, and the action must be declared admissible.

39 With regard to the second applicant, the Court notes that it has special standing compared to any other applicant because it forms part of the same corporate group as the first applicant. Furthermore, since the first applicant’s action is admissible and since the first and second applicants brought one and the same action, it has been held that there is no need to consider whether the second applicant has standing to bring proceedings (see, to that effect, judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, not published, EU:T:2014:1076, paragraph 33 and the case-law cited).

40 The applicants put forward three pleas in law in support of their action. By their first plea, the applicants submit that the Council made a manifest error of assessment and was in breach of its obligation to state reasons by choosing Brazil as an analogue country. By their second plea, the applicants allege that the Council erred and breached its obligation to state reasons by not adjusting the normal value to account for the distorting effect caused by the 14% import duty in the analogue country. Lastly, by their third plea, the applicants take issue with the Council for having misapplied the ‘lesser duty’ rule.

41 In the light of those pleas, the Court takes the view that it ought to start with the third plea before going on to examine the first and second pleas.

A – The third plea in law, concerning the incorrect application of the ‘lesser duty’ rule

42 The applicants submit that the Council erred in law and infringed Article 9(4) of the basic regulation, which lays down the ‘lesser duty’ rule, by comparing, in recital 80 of the contested regulation, the 70.8% dumping margin in the contested regulation with the injury elimination level in the original investigation in 2005.

43 Before going on to examine that plea, it is important to recall that the contested regulation was adopted after the Commission noticed, during the expiry review, a change in the competition landscape on the EU market because of the measures originally imposed. In particular, the Commission had observed that the Chinese exporting producer with the lowest duty rate, which had been granted market economy treatment (‘MET’), had been able to virtually take over a very large part of the EU market and had increased significantly its share of imports in the European Union, and it had doubts with regard to the original MET determination in view of prima facie evidence of distortions on the Chinese steel market.

44 Consequently, the Commission and the Council considered that there had been a change of a lasting nature in the circumstances that had resulted in the imposition of the existing measures and that there was sufficient evidence justifying the ex officio initiation of a partial interim review limited in scope to the examination of dumping in respect of Chinese exporting producers, pursuant to Article 11(3) of the basic regulation (see recitals 5 and 6 of the contested regulation).

45 Further to the review investigation, the Council set the new dumping margin at 70.8%. In recital 80 of the contested regulation, the Council stated that ‘in [the] light of the results of this review investigation and since the new dumping margin of 70.8% [wa]s lower than the injury elimination level established in the original investigation ..., it [wa]s considered appropriate to amend the anti-dumping duty applicable to imports of the product concerned both from Noblelift and from all other exporting producers to 70.8%’. In addition, the Council considered that the ‘lesser duty’ rule had been complied with by comparing the newly established dumping margin with the injury elimination level established in the original investigation, which was the latest injury finding (see recital 83 of the contested regulation).

46 The applicants claim, in essence, that that comparison is in breach of the ‘lesser duty’ rule laid down in Article 9(4) of the basic regulation. They submit that it follows from the wording and the purpose of that provision that the institutions are in each case under an obligation to calculate a new injury margin before imposing a new anti-dumping duty. In the applicants’ opinion, that obligation does not affect the right to make a partial interim review limited in scope to dumping, since it calls for the determination of a new injury margin — which only requires proof of the selling or target price of the EU industry — not for a new injury assessment. A consequence of the failure to establish a new injury margin in the contested regulation may be a lower injury margin than that established in the original investigation, so that that failure could be a sufficient ground to annul the contested regulation.

47 The Council, supported by the Commission, disputes that assessment on the ground that, where the review is limited in scope to dumping, the institutions are legally obliged to use the injury margin in the original investigation when they apply the ‘lesser duty’ rule. Furthermore, the Council submits that by disputing that point the applicants are effectively raising a plea of illegality which is inadmissible because it is out of time.

48 In the light of those arguments, first of all, it should be recalled that the last sentence of Article 9(4) of the basic regulation, which lays down the ‘lesser duty’ rule, provides that ‘the amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry’.

49 Under the ‘lesser duty’ rule, the injury margin is thus to be used to determine the rate of anti-dumping duty where the dumping margin is higher than the injury margin (see, to that effect, judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 153, and of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraph 111).

50 The objective of that rule is to prevent the anti-dumping duty imposed from going beyond what is necessary to remove the injury caused by the dumped imports. Thus, the adoption of anti-dumping duties is a protective and preventive measure against unfair competition resulting from dumping practices, not a penalty or a measure giving a competitive advantage to the EU industry (see, to that effect, judgment of 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 91).

51 As Advocate General Trstenjak stated in the context of subsidies, the objective of the ‘lesser duty’ rule is to ensure that only the competitive advantage of the subsidised imports is compensated to protect the EU industry. The prices of subsidised imports should be increased by the countervailing duty only to the extent necessary in order to protect the EU industry. However, they are not supposed to afford the EU industry a greater competitive advantage over subsidised imports (Opinion of Advocate General Trstenjak in Moser Baer India v Council, C‑535/06 P, EU:C:2008:532, point 170).

52 Next, the Court notes that the parties do not dispute the fact that the ‘lesser duty’ rule applies in the context of the review referred to in Article 11(3) of the basic regulation. For the reasons set out below, the Court shares the parties’ assessment.

53 A review procedure differs, in principle, from the original investigation procedure, which is governed by other provisions of the basic regulation. The Court of Justice has thus already held that some of those provisions are not intended to apply to a review procedure, in the light of the general scheme and purposes of the system. The objective difference between the two types of procedures lies in the fact that imports subject to a review procedure are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an original investigation, its purpose is precisely to determine the existence, degree and effect of any alleged dumping (see, to that effect, judgments of 27 January 2005, Europe Chemi-Con (Deutschland) v Council, C‑422/02 P, EU:C:2005:56, paragraph 50; of 11 February 2010, Hoesch Metals and Alloys, C‑373/08, EU:C:2010:68, paragraphs 65 and 66; and of 28 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraphs 59 and 60).

54 With regard to the ‘lesser duty’ rule in particular, it has been held that it does not apply when reviewing anti-dumping measures under Article 11(2) of the basic regulation on the ground that, for the purposes of the expiry review of anti-dumping measures under that paragraph, the EU authorities may only either repeal or maintain those measures. The Court of Justice therefore held that, in the light of the general scheme and purposes of the system of which the last sentence of Article 9(4) of the basic regulation forms part, it is not intended to apply to the procedure under Article 11(2) of that regulation (see, to that effect, judgment of 11 February 2010, Hoesch Metals and Alloys, C‑373/08, EU:C:2010:68, paragraphs 77 and 78).

55 However, Article 11(9) of the basic regulation provides that, in all review investigations carried out pursuant to Article 11 thereof, the Commission is required to apply, provided that circumstances have not changed, the same methodology as in the investigation which led to the imposition of the duty. It follows that, as a general rule, in a review, the institutions are required to apply the same methodology as that used in the original investigation which led to the imposition of the anti-dumping duty (judgment of 17 November 2009, MTZ Polyfilms v Council, T‑143/06, EU:T:2009:441, paragraph 42).

56 As it is, the ‘lesser duty’ rule is an element of the methodology used in the original investigation which led to the imposition of the anti-dumping duty.

57 In addition, as the Court of Justice noted, the review of anti-dumping measures pursuant to Article 11(3) of the basic regulation differs from that made in accordance with Article 11(2) thereof, in that it allows for anti-dumping measures not only to be repealed or maintained but also amended. Indeed, Article 11(6) of the basic regulation expressly states that anti-dumping measures may be repealed, maintained or amended by the EU institutions responsible for their introduction pursuant to Article 11(3) thereof (judgment of 11 February 2010, Hoesch Metals and Alloys, C‑373/08, EU:C:2010:68, paragraphs 76). Given that it is possible to amend anti-dumping measures during a review pursuant to Article 11(3) of the basic regulation, unlike in Article 11(2) thereof, the ‘lesser duty’ rule must be intended to apply in a review procedure under Article 11(3) of the basic regulation.

58 Accordingly, having regard to the scope of Article 11(3) of the basic regulation, and, a contrario, to the finding in the judgment of 11 February 2010, Hoesch Metals and Alloys (C‑373/08, EU:C:2010:68) as to Article 11(2) of the basic regulation, the ‘lesser duty’ rule must apply in the context of the interim review referred to in Article 11(3) of the basic regulation.

59 Lastly, with regard to the application of the ‘lesser duty’ rule in a partial interim review limited in scope to dumping, the parties do not dispute and the case-law recognises that the institutions are allowed to carry out such a partial review pursuant to Article 11(3) of the basic regulation (see, to that effect, judgment of 28 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraphs 35 to 37).

60 For the application of the ‘lesser duty’ rule in such a situation, it is important to recall that the objective of that rule is to ensure that the anti-dumping duties imposed do not go beyond what is necessary to offset the injury suffered by the EU industry because of that dumping (see paragraph 50 of the present judgment).

61 Consequently, in an interim review limited in scope to dumping, the assessment as to whether the ‘lesser duty’ rule has been complied with on the basis of the injury margin established in the original investigation can be confirmed only insofar as that margin is still representative of the injury when the new dumping margin is determined following the review.

62 Indeed, if the margin is no longer representative, the ‘lesser duty’ rule cannot ensure that the anti-dumping duties imposed following an interim review do not go beyond what is necessary to offset the injury suffered by the EU industry and, consequently, the rule becomes inoperative.

63 It is therefore important to determine if, in the present case, the institutions were entitled to find that the injury margin was still representative of the injury suffered by the EU industry at the time when the anti-dumping duties were determined following an interim review limited in scope to dumping.

64 In that regard, it must be noted that the institutions confined the interim review just to the dumping because they considered that they did not have sufficient evidence justifying the initiation of a review covering the injury.

65 Pursuant to Article 11(3) of the basic regulation, the applicants were entitled to request a review of the injury because that provision allowed exporters to request a review of the need for the continued imposition of anti-dumping measures. The applicants, however, failed to make such a request.

66 Nonetheless, in the administrative procedure, the applicants objected to the scope of the interim review being confined to dumping only, on the ground that it followed from Implementing Regulation No 1008/2011, which was adopted after Regulation No 1174/2005, which established the injury elimination level, that the situation of the EU industry had changed due to the departure of two EU producers and to the undercutting of EU prices ranging between 43% and 78%. The institutions rightly rejected that objection. The arguments put forward are not sufficient to affect the plausibility of the analysis as to the injury elimination level set out in recitals 120 and 123 of Commission Regulation (EC) No 128/2005 of 27 January 2005 imposing a provisional anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China (OJ 2005 L 25, p. 16), and confirmed by Regulation No 1174/2005. In particular, the undercutting invoked is not fundamentally different from that set out in Regulation No 1174/2005, in which it is over 55% (see recital 58 of Regulation No 1174/2005). In any event, the applicants clearly did not challenge before the Court the institutions’ rejection of their arguments against the scope of the interim review being confined to dumping only.

67 The institutions were therefore entitled to consider that their initial findings as to the injury and, accordingly, as to the injury margin were still valid at the time of the review of the dumping. In such circumstances, the institutions were properly entitled to find that the injury margin initially established was representative of the injury at the time when the anti-dumping duty were determined following the review.

68 Accordingly, the institutions did not err in law and did not make a manifest error of assessment in establishing, in the present case, that the ‘lesser duty’ rule had been complied with on the basis of the injury margin laid down in the original investigation. For those reasons, the third plea in law must be rejected.

B – The first plea in law, concerning the determination of normal value on the basis of data from Brazil

69 The applicants take the view, primarily, that the choice of Brazil as an analogue country is contrary to Article 2(7) of the basic regulation because ‘normal market forces’ do not prevail on the Brazilian market for the products concerned. The applicants submit that the Council made a manifest error of assessment in maintaining that there was sufficient competition on the Brazilian market and that it did not select the analogue country in a not unreasonable manner. According to the applicants, that error warrants the annulment of the contested regulation. The Council disputes its alleged breach of Article 2(7) of the basic regulation and its alleged manifest error of assessment in choosing Brazil as an analogue country.

70 In the light of those arguments, it must be recalled that Article 2(7)(a) of the basic regulation provides as follows:

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

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

71 The aim of the provisions in Article 2(7)(a) of the basic regulation is to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of market forces (see judgments of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 20 and the case-law cited, and of 19 July 2012, Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraph 66 and the case-law cited).

72 In addition, it has been made clear that under the second subparagraph of Article 2(7)(a) of the basic regulation an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection, because it is for the EU institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 21).

73 It is apparent from the wording of Article 2(7)(a) of the basic regulation that normal value is primarily determined on the basis of the price or the constructed value in a market economy third country, or the price from such a third country to other countries, including the European Union (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 24).

74 The Court has also stated that the fact that a need to adjust the data required for the determination of normal value in order to adapt them as closely as possible to the conditions which would apply to producers from a non-market economy country does not demonstrate that it was either impossible or even inappropriate to use the data concerning a producer from an analogue country (see, to that effect, judgment of 23 October 2003, Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, T‑255/01, EU:T:2003:282, paragraph 59).

75 It appears from the foregoing that it is important that, when selecting a third country for the determination of normal value, that country should be a market economy country. In particular, the market for the products at issue in that country must be governed by normal market forces and, consequently, the price of the products at issue must be the result of genuine competition. While competition is required to be genuine, it cannot be required to be perfect. On the one hand, this is because perfect competition is a fantasy; on the other hand, it is because, as is apparent from the aforementioned case-law, the choice of a third country as an analogue country does not preclude adjustments from being made to account for the specific features of the market. The need to make an adjustment is not sufficient to demonstrate that the market at issue was not governed by genuine competition.

76 In addition, it is important to note that the choice of a reference country falls within the discretion enjoyed by the competent institutions when analysing complex economic situations (judgment of 29 May 1997, Rotexchemie, C‑26/96, EU:C:1997:261, paragraph 10).

77 The exercise of that discretion is not, however, exempt from judicial review. It is settled case-law that, in the context of such review, the courts of the European Union are to verify whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (see judgment of 29 May 1997, Rotexchemie, C‑26/96, EU:C:1997:261, paragraph 11 and the case-law cited).

78 Moreover, as regards in particular the choice of reference country, it is for the court to verify whether the institutions neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and whether the information contained in the documents in the case was considered with all the care required for the view to be taken that the normal value was determined in an appropriate and not unreasonable manner (see judgments of 22 October 1991, Nölle, C‑16/90, EU:C:1991:402, paragraph 13, and of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 22).

79 In the contested regulation, the Council stated the following regarding the choice of Brazil as an analogue country:

‘(38) As concerns the suitability of Brazil as an analogue country, it has to be pointed out that while the analogue country producer is the main producer on the Brazilian market, it does not monopolise that market. There is competition with at least two local producers and a significant level of imports, and the profit margin of the analogue country producer has been found to be consistent with an open market.

(39) As stated in recital 36 above, following comments at the early stage of the proceeding against the use of Brazil as an analogue country, the Commission contacted 45 producers in four different countries, including the companies suggested by Noblelift. Despite repeated contacts by telephone and e-mail with these companies, only one producer from Brazil submitted the requested information and cooperated with the investigation.

(40) With regard to the alleged deficiencies, it has to be noted that only one producer in the analogue country cooperated with the investigation. Such a situation is not uncommon, but poses difficulties with regard to the disclosure of data. Given frequent difficulties in obtaining cooperation from analogue country producers, the Commission has to guarantee a high level of protection of confidential information. In the current case, the presentation of non-confidential data created some misunderstandings concerning alleged deficiencies but they were clarified with the parties. In particular, one party claimed that deficiencies in the reply of the analogue country producer should disqualify Brazil as an analogue country and the investigation should be terminated since the Commission cannot establish the normal value. In this respect it is noted that in the current investigation the Commission did have all the necessary information to perform a dumping calculation.

(41) Consequently, the claims concerning the suitability of Brazil as an analogue country could not be accepted.

(42) With regard to the claims for adjustments, it is noted that the level of trade differences between the Brazilian producer and the Chinese exporting producer has been accounted for by means of a level of trade adjustment (see recital 59 below).

(43) Finally, one party claimed that an adjustment should be made to account for an allegedly distorting effect of the 14% import duty in the analogue country. This claim cannot be accepted as no link can be established between an import duty as such and the price level on the domestic market.

(44) Consequently, Brazil is considered an appropriate analogue country since there is sufficient competition with at least two producers and a significant level of imports.’

80 The applicants dispute the choice of Brazil as an analogue country because they claim, on the one hand, that Paletrans, the cooperating producer, monopolises the Brazilian production of hand pallet trucks and, on the other hand, that Paletrans’ position is protected by high import duties on hand pallet trucks, so that those imports cannot freely compete with domestic production.

81 Specifically, the applicants point out that there are only two producers of hand pallet trucks in Brazil, namely the cooperating producer, Paletrans, and one other undertaking. The applicants claim that Paletrans’ production accounts for approximately 93% of the domestic production and that the production of the second producer in Brazil, amounting to approximately 7% of the domestic production, is thus almost negligible. The applicants are of the opinion that it is doubtful whether an undertaking can exert competitive pressure on another undertaking where the latter is approximately 13 times larger than the former. Consequently, the Council was not entitled to assume, on the basis of those considerations and without further explanation, that there was sufficient local competition between Paletrans and the second producer concerned. In the applicants’ submission, economic theory shows, rather, that with a 93% share of local production and a position virtually equivalent to that of a local monopolist, Paletrans was able to play the role of a price leader by comparison with other producers. That is particularly so because the hand pallet truck market is a mature market with a low degree of innovation, in which Paletrans’ market share in domestic production has remained stable between the last financial year and the RIP. In the applicants’ opinion, stable market shares in an oligopoly are an indication of collusion between the members of the oligopoly through non-coordinated behaviour.

82 In the light of those arguments the Court finds, in the first place, that the Council was entitled to hold, in recitals 38 and 44 of the contested regulations, without a manifest error of assessment, that there were at least two local producers of hand pallet trucks in Brazil. Indeed, in response to a written question from the Court, the Council stated that Paletrans, which was the largest producer of hand pallet trucks in Brazil, had indicated that, besides them and the other producer which ranked second at national level, there were also a few other very small domestic producers. That statement was supported by a document from Paletrans which the applicants did not challenge.

83 The Court finds, in the second place, that the applicants’ arguments based on Paletrans’ dominance on the Brazilian production market for hand pallet trucks are not sufficient to demonstrate that a manifest error was made in choosing Brazil as an analogue country.

84 The suitability of the analogue country selected for the purposes of determining the normal value may not be assessed solely in the light of the domestic production of the products at issue. According to Article 2(7)(a) of the basic regulation, normal value is to be determined on the basis of ‘the price or constructed value in a market economy third country’ or ‘the price from such a third country to other countries’. Whether the choice of analogue country is appropriate must therefore be assessed in the light of the competition on the sales market for the products at issue.

85 The Court has thus already held that the mere fact that there is only one producer in the reference country does not in itself preclude the prices there from being the result of genuine competition, since such competition may just as well result, in the absence of price controls, from the presence of significant imports from other countries (see, to that effect, judgments of 29 May 1997, Rotexchemie, C‑26/96, EU:C:1997:261, paragraph 15, and of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 66).

86 Accordingly, the lack of sufficient competition between local producers, the existence of a mature production market with a low degree of innovation and the stability of Paletrans’ market shares on that market, even if they were verified, do not prove that the institutions made a manifest error of assessment by choosing Brazil as an analogue country.

87 The applicants also contend, in support of their plea alleging that Brazil was the wrong choice as an analogue country, that, in addition to the fact that Paletrans was the largest Brazilian producer of hand pallet trucks, its market share ranged from 43% to 54% of the Brazilian sales market for hand pallet trucks. In the applicants’ submission, that substantial market share is the prime indicator for significant market power and for Paletrans’ dominant position (see paragraph 17 of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5) and German and Austrian legislation on competition, establishing statutory presumptions of dominance). According to the applicants, market power distorts price levels even when there is no abuse. In addition, the applicants state that Paletrans, compared to its nearest competitor on the Brazilian market, is 13 times larger in terms of size, and 43 to 54 times larger in terms of market shares. It follows that that competitor is therefore too small to limit Paletrans’ market power. In the applicants’ submission, the institutions failed to consider the actual impact of Paletrans’ market power on prices in Brazil. Moreover, they claim that the facts at issue create a presumption shifting the burden of proof.

88 It is apparent from the file before the Court that, in respect of the sale of hand pallet trucks in Brazil, Paletrans held the market shares set out in the table below:

89 In the statement of defence, the Council explained that during the RIP, Paletrans had a 43% market share and the second Brazilian producer and a few small local producers had a market share of around 1%. The Council also made clear that out of the remaining 56%, Chinese importers had a 47% and EU importers a 9% market share, a clarification which is not disputed by the applicants.

90 In the light of those facts, Paletrans is shown to have had a significant position in the Brazilian sales market for hand pallet trucks. The fact that that undertaking had a market share of over 50% in the last financial year is not sufficient, however, to conclude that it was in a dominant market position.

91 In fact, it should be recalled that a dominant position is defined under EU law as a position of economic strength held by an undertaking, which enables it to prevent effective competition from being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, consumers (judgments of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraph 65; of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 38; and of 6 December 2012, AstraZeneca v Commission, C‑457/10 P, EU:T:2012:770, paragraph 175).

92 The Court of Justice has held that the existence of a dominant position generally derives from a combination of various factors which, taken separately, are not necessarily decisive (see judgment of 6 December 2012, AstraZeneca v Commission, C‑457/10 P, EU:C:2012:770, paragraph 175 and the case-law cited). In addition, the Court of Justice has already had the opportunity to clarify that, although the importance of the market shares may vary from one market to another, the possession, for some time, of a very large market share is in itself, save in exceptional circumstances, evidence of the existence of a dominant position (judgment of 13 February 1979, Hoffman-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 41) and that market shares of more than 50% are very large market shares (judgments of 3 July 1991, AKZO v Commission, C‑62/86, EU:C:1991:286, paragraph 60, and of 6 December 2012, AstraZeneca v Commission, C‑457/10 P, EU:C:2012:770, paragraph 176).

93 In the present case, it is clear that it is only in respect of the last financial year that Paletrans has been shown to have a market share of more than 50%. During the RIP, its market share was less than 50%. In accordance with the case-law referred to in paragraph 92 above, only a market share of more than 50% for some time creates a presumption of market dominance.

94 Furthermore, in the presentation they gave at the hearing held on Commission premises on 7 March 2013, a copy of which was annexed to their application, the applicants stated that ‘Brazilian producers c[ould] not supply local demand’ and that ‘imports [did] not need to compete but [were] needed anyway’. The applicants thus acknowledge that Brazilian producers were not able to supply the demand for hand pallet trucks on the Brazilian market. This, and the fact that there were significant imports of hand pallet trucks in Brazil, calls into question the characterisation of Paletrans as an undertaking with a dominant market position.

95 At the hearing, the Court asked the applicants about that assertion. In their replies, the applicants stated that the fact that supply on the Brazilian market was lower than demand was a sign of Paletrans’ dominance because it was in a position that enabled it to increase the price of hand pallet trucks on the market. Such an inference is correct only in so far as it can be ascertained that the imports of hand pallet trucks could not supply the relevant demand. In the present case, however, almost half of the hand pallet trucks sold in Brazil were imported and the applicants are not able to explain how, in such a case, Paletrans was in a position that enabled it to increase the price of hand pallet trucks on the Brazilian market.

96 Accordingly, contrary to the applicants’ assertions, Paletrans’ large market shares on the Brazilian market for sales of hand pallet trucks are not sufficient to establish a presumption that that undertaking had a dominant position in the relevant market. The fact that, according to the applicants, Paletrans had a dominant position on the Brazilian market for production of hand pallet trucks does not affect that finding. In fact, Paletrans’ dominance manifestly did not result in a constant market share of 50% or more for Paletrans in the sales market.

97 In addition, and in any event, the fact that Paletrans may be considered to have a dominant position on the Brazilian market for hand pallet trucks, quod non, is not sufficient to prove that that market was not subject to genuine competition and, accordingly, that it was manifestly wrong to choose Brazil as an analogue country.

98 Dominance gives the undertaking concerned only the power to act independently (see paragraph 91 above). It does not necessarily follow that the undertaking exercises that power. Accordingly, the applicants are wrong in arguing that a dominant position in itself distorts price levels.

99 Therefore, notwithstanding Paletrans’ important position in the Brazilian production and sales market for hand pallet trucks, the Council was entitled to conclude, without making a manifest error of assessment, that the Brazilian market was subject to genuine competition, given that the cumulative market share of the importers of hand pallet trucks was 56% during the RIP and 46% in the last financial year.

100 The applicants further submit that competition in relation to imports was insufficient to counter Paletrans’ power, since Brazil imposed a 14% import duty on the products concerned. According to the applicants, that duty makes imports more expensive, shields local producers from competition and thereby distorts normal market conditions. They also claim that the Council failed to consider the impact of such duties on the functioning of the Brazilian market. The applicants take the view that it is precisely because imports are subject to a high import duty that Paletrans’ market power is characterised by a very high market share, between 43% and 54%, and an extremely large gap between it and the next Brazilian producer, whose market share is below 1%. They submit that since imports account for approximately 50% of the Brazilian market, it must be presumed that 50% of the products concerned sold on the Brazilian market were sold with a 14% mark-up and, in addition, that the Brazilian production was sold at prices substantially above competitive level. Accordingly, the applicants maintain that the prices for hand pallet trucks in Brazil are above competitive level. They claim that Paletrans’ sales and imports account for 99% of the sales of the product concerned in Brazil, so that, even if the second domestic producer, with a market share of less than 1%, would charge competitive prices, 99% of the products sold on the Brazilian market would still be sold at prices above competitive level. The Council disputes those arguments.

101 In the light of those arguments, a distinction should be drawn between the questions as to (i) whether the justification for choosing Brazil as an analogue country may be affected by the imposition of that import duty, as put forward in the first plea in law, and (ii) whether it was necessary to adjust the normal value pursuant to the finding on that duty, as put forward in the second plea in law. At this stage, only the first question needs to be addressed.

102 In that regard, the Court notes that the imposition of an import duty does not automatically mean that the relevant market is no longer governed by normal market forces and, therefore, that the price of the products in question is not the result of genuine competition. In fact, it is only to the extent that an import duty significantly reduces or even nullifies normal market forces that that duty precludes the relevant market from being taken into account in determining the normal value.

103 In the present case, there was a 14% import duty. Neither the imposition of that duty nor Paletrans’ position on the market prevented substantial imports of hand pallet trucks in Brazil. Indeed, despite Paletrans’ significant market position and the import duty in question, imported products accounted for between 45% and 56% of the products sold on the Brazilian market. Those imports therefore genuinely competed with Brazilian producers on the Brazilian market for hand pallet trucks, despite the imposition of a 14% import duty.

104 Thus, while that 14% import duty may have had an impact on the price of the hand pallet trucks sold in Brazil, it does not permit the inference that the Brazilian market for hand pallet trucks was not subject to genuine competition.

105 Consequently, the institutions were entitled to conclude in recital 38 of the contested regulation, without making a manifest error of assessment, that genuine competition existed on the Brazilian market for hand pallet trucks by virtue of the fact that, despite a 14% import duty, the market was characterised by the existence, besides Paletrans, of at least two other local producers and substantial imports.

106 For all the reasons set out above, the institutions did not make a manifest error of assessment in considering that Brazil was an appropriate analogue country for the determination of normal value. Given the hierarchy between the methodologies set out in paragraphs 73 et seq. above and the fact that Brazil was an appropriate market economy third country, the normal value had to be ascertained on the basis of that analogue country and not on the basis of another reasonable methodology.

107 That finding is not called into question by the Commission’s and the Council’s previous practice in taking decisions, as put forward by the applicants. In fact, the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of legal rules and, in particular, the provisions of the basic regulation, not on the basis of the Commission’s and the Council’s alleged previous practice in taking decisions.

108 In the alternative, the applicants claim that the Council’s assumption that there was sufficient competition in Brazil is not explained in the contested regulation so that, on that point, the contested regulation is vitiated by a breach of the obligation to state reasons imposed by the second paragraph of Article 296 TFEU. In reply to the Council’s arguments, the applicants state that the alleged ‘detailed explanations’ with regard to the factors taken into account by the Council are confined to a simple assertion that competition exists between at least two local producers and that the level of imports is significant. According to the applicants, those assertions are not convincing. They submit that the Council’s statement of reasons is not capable of casting light on the reasons for rejecting the relevant arguments raised by the parties in the administrative procedure.

109 The Council is of the opinion that it gave sufficient reasons as to the methodology used, including the existence of sufficient competition on the Brazilian market, in recitals 33 to 44 of the contested regulation.

110 A claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the decision are inaccurate, the latter plea being a matter to be reviewed when examining the substance of that decision (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 14 May 1998, Gruber + Weber v Commission, T‑310/94, EU:T:1998:92, paragraph 41, and BPB de Eendracht v Commission, T‑311/94, EU:T:1998:93, paragraph 66).

111 The statement of reasons required by the second paragraph of Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the EU authority which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the EU judicature to exercise its power of review (judgments of 30 September 2003, Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 88; of 12 October 1999, Acme v Council, T‑48/96, EU:T:1999:251, paragraph 141; and of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 129).

112 The statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it meets the applicable requirements must be assessed in the light not only of its wording but also of its context and all the legal rules governing the matter in question. In addition, it should be pointed out that the institutions are not obliged to adopt a position on all the arguments relied on by the persons concerned. It is sufficient for the institution which adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation (see, to that effect, judgments of 11 January 2007, Technische Glaswerke Ilmenau v Commission, C‑404/04 P, not published, EU:C:2007:6, paragraph 30, and of 13 September 2010, Whirlpool Europe v Council, T‑314/06, EU:T:2010:390, paragraphs 113 and 114).

113 In the present case, the reasons as to why the Council considered that Brazil was an appropriate choice as an analogue country are sufficiently apparent from recitals 38 to 41 of the contested regulation. The Council thereby explained that the main producer on the Brazilian market did not have a monopoly, that there were at least two local producers, that the level of imports was significant and that the profit margin of the analogue country producer was consistent with an open market.

114 Those explanations enabled the applicants to ascertain the reasons for adopting the measure in order to defend their rights and enabled the Court to exercise its powers of review. In fact, those explanations made it possible for the applicants to challenge the substance of those assessments and for the Court to adopt a position on those issues, as is apparent from paragraphs 80 et seq. above. The fact that the applicants characterise the reasons set out in the contested regulation as being ‘not convincing’ shows their intention to confuse form with substance and implicitly concedes that the statement of reasons is sufficient for the purposes of the second paragraph of Article 296 TFEU.

115 Accordingly, the plea alleging failure to state reasons must be rejected, as well as the first plea in its entirety.

C – The second plea in law, concerning the failure to adjust the normal value in order to account for the distorting effect of the 14% import duty in the analogue country

116 By their second plea, the applicants submit, in the alternative to their first plea, that the contested regulation infringes, inter alia, Article 2(7) of the basic regulation because, in determining the normal value, the Council did not take account of the effect of the 14% import duty imposed by the Brazilian authorities on the products in question. The Council disputes both the admissibility and the merits of that plea.

117 The Council is of the opinion that the second plea is inadmissible because it is based on Article 2(7) of the basic regulation, which does not apply to adjustments. According to the Council, the normal value was determined in the present case on the basis of actual and constructed prices in Brazil. In the Council’s submission, issues relating to any adjustments to prices available are covered by Article 2(10) of the basic regulation and not by Article 2(7) thereof. The applicants contend that Article 2(7) of the basic regulation is the core provision when determining the normal value on the basis of data from an analogue country and that an appropriate normal value was not determined by the Council in the present case.

118 In the light of those arguments, it is important to note that the Council contends that the absence of merits of the second plea renders it inadmissible. In fact, the question as to whether there was a breach of Article 2(7) of the basic regulation based on the failure to take account of the adjustments requested is a question as to the substance of the plea. Such a question does not make the plea inadmissible. Therefore, the Court must declare that the second plea is admissible.

119 The applicants submit that the normal value should have been adjusted to account for the distorting effect of the 14% import duty imposed on the products in question. They claim that, because of the failure to make adjustments, the contested regulation is in breach of Article 2(7) of the basic regulation. In addition, in response to the Council’s arguments, the applicants complain that the Council did not make adjustments on the basis of Article 2(10)(b) or (k) of the basic regulation.

120 Article 2(7)(a) of the basic regulation governs the determination of normal value in the case of imports from non-market economy countries. It provides that, in such a case, normal value may be determined either on the basis of the price or constructed value in a market economy third country or on the basis of the price from such a third country to other countries, including the European Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the European Union for the like product, duly adjusted if necessary to include a reasonable profit margin.

121 In the present case, normal value was ascertained on the basis of both the price of the products concerned in Brazil and the constructed value of those prices in Brazil, in accordance with that provision. For the constructed value, the Council applied Article 2(3) of the basic regulation.

122 In fact, as is apparent from the General Disclosure Document of 7 February 2013 and from recitals 48 and 49 of the contested regulation, where the sales volume of a product type, sold at a net sales price equal to or above the calculated cost of production, represented more than 80% of the total sales volume of that type, and where the weighted average sales price of that type was equal to or higher than the cost of production, the institutions determined the normal value on the basis of the actual domestic price. That was the case for all comparable types, and the normal value was calculated as a weighted average of the prices of all sales of each comparable type made during the RIP on the Brazilian market. For non-comparable types, the institutions constructed the normal value in accordance with Article 2(3) of the basic regulation by adding to the manufacturing cost, adjusted where necessary, a reasonable percentage for domestic selling, administrative and general expenses and a reasonable profit margin. The amounts corresponding to the selling, administrative and general expenses and to the profit were based on actual data pertaining to production and sales for the like product in the ordinary course of trade by Paletrans, the producer in Brazil, the analogue country.

123 In their letter of 20 February 2013 and at the hearing of 7 March 2013, the applicants asserted that, in the event that Brazil were confirmed as an analogue country, adjustments would have to be made to the normal value to account for the alleged distorting effect of the 14% duty imposed by that country on the import of hand pallet trucks. To that end, in their opinion, all products, not only comparable products, were to be constructed in accordance with Article 2(3) of the basic regulation. In particular, the applicants alleged that Paletrans’ profit margin, the manufacturing costs, selling, administrative and general expenses taken into account to determine the normal value were inflated because of the 14% import duty, and an adjustment ought to be made accordingly.

124 In the contested regulation, the Council took the view that that request for an adjustment could not be accepted ‘as no link c[ould] be established between an import duty as such and the price level on the domestic market’.

125 The applicants are of the opinion that that assessment is vitiated by a manifest error of assessment and that it is in breach of Article 2(7) of the basic regulation. In addition, they claim that the Council thus imposed an unreasonable burden of proof on them.

126 The Council, supported by the Commission, disputes those allegations. It takes the view that the applicants had not adduced any concrete evidence, either in the administrative procedure or in the proceedings before the Court, showing the actual impact of the import duty on the normal value or on the export price, nor have they demonstrated that the technical requirements in Article 2(10) of the basic regulation had been met. The Council denies having thus imposed an unreasonable burden of proof on the applicants and notes that a series of adjustments were made once the impact on prices and price comparability had been demonstrated. The Council is of the opinion that the institutions correctly decided, in the exercise of their discretion, that the import duty did not warrant making adjustments to the normal value because of its relatively low level.

127 With regard to the assessment in recital 43 of the contested regulation that no link could be established between the actual import duty and the price level on the domestic market, it is important to note that, while the Council does not dispute the existence of that 14% duty on imports of hand pallet trucks during the RIP in Brazil, the fact remains that the wording of that recital, read in its context, shows that, by that assessment, the Council did not exclude the principle that import duties may have the effect of increasing price levels, but merely stated that no such link had been established in this instance.

128 In that regard, it must be noted that, as is apparent from the file, the applicants had asked, in the administrative procedure, to make ‘adjustments’ to the normal value to account for the import duty, and so that that value may ‘reflect normal trading conditions’; in that context, they relied on Article 2(3) and (7) of the basic regulation. Specifically, they claimed that normal value should have been entirely constructed in accordance with Article 2(3) thereof. However, the applicants did not base their request on Article 2(10) of the basic regulation.

129 As regards the proceedings before the Court, the applicants allege a breach of Article 2(7) of the basic regulation. In their reply to the Council’s arguments they maintain that an adjustment pursuant to Article 2(10)(b) or (k) thereof would also have been justified.

130 In the first place, with regard to the alleged breach of Article 2(7) of the basic regulation, it should be recalled that the aim of that article is to prevent account being taken of prices and costs in non-market-economy countries which are not the normal result of market forces (see judgment of 19 July 2012, Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraph 66 and the case-law cited). According to the applicants, the Brazilian market was characterised by distortions caused by the 14% import duty in question.

131 The applicants’ argument must be rejected. As is apparent from the analysis of the first plea (see paragraphs 102 to 105 above), the institutions were entitled to consider, without making a manifest error of assessment, that despite the 14% import duty there was genuine competition on the Brazilian market for hand pallet trucks. It was therefore possible for the institutions to correctly determine the normal value on the basis of the prices or the constructed value in that market.

132 In the second place, if the applicants’ argument were to be understood as a breach of Article 2(10) of the basic regulation, it would also have to be rejected. As provided in Article 2(10) of the basic regulation:

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

133 It is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may only be made in order to take account of differences in factors which affect prices and, therefore, their comparability. This means, in other words, that the purpose of an adjustment is to re-establish the symmetry between normal value and export price (see judgment of 23 September 2009, Dongguan Nanzha Leco Stationery v Council, T‑296/06, not published, EU:T:2009:347, paragraph 42 and the case-law cited).

134 Moreover, if a party requests adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purposes of determining the dumping margin, it must prove that its claim is justified. The burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraphs 60 and 61).

135 In the present case, however, the applicants did not state, in the administrative procedure, on which specific provision of Article 2(10) of the basic regulation their request might be based, and they did not expand any actual arguments to that effect. The only document that they submitted in support of their arguments refers to a 14% import duty on a list of products, a duty which the institutions do not dispute. According to the applicants’ own assertions in their application, their request was founded on the existence of an import duty in Brazil, which they describe as being ‘substantial’, and on the alleged principle that import duties have the effect of increasing price levels on the domestic market. In those circumstances, the Council was entitled, without making a manifest error of assessment, to reject the applicants’ request.

136 In this respect, the applicants also allege that the Council imposed an unreasonable burden of proof on them by challenging — without any explanation — in recital 43 of the contested regulation the principle that import duties have the effect of increasing price levels on the domestic market. In their reply, the applicants add that they also met the burden of proof under Article 2(10) of the basic regulation.

137 That argument cannot succeed. First, it should be recalled that, in its assessment in recital 43 of the contested regulation, the Council did not reject the idea that import duties may have the effect of increasing price levels; it merely stated that no such link had been established in the instant case (see paragraph 127 above). Secondly, it is true that it follows from the principle of sound administration that the burden of proof which the institutions impose on exporting producers requiring an adjustment under Article 2(10) of the basic regulation may not be unreasonable (see, to that effect, judgement of 8 July 2008, Huvis v Council, T‑221/05, not published, EU:T:2008:258, paragraph 77).

138 Nevertheless, in the present case, if the applicants had wanted to make a valid request for an adjustment under Article 2(10) of the basic regulation, the onus was on them to adduce evidence showing that, in this instance, a 14% import duty did have an effect on the price levels that constitute normal value and on the possibility of comparing those prices to export prices, which certainly cannot be regarded as an unreasonable burden of proof.

139 Lastly, the applicants claim that the institutions assessed the increase in EU prices resulting from import duties in numerous anti-dumping and anti-subsidy proceedings and that they constantly acknowledged that those import duties gave rise to price increases on the domestic market, without establishing a specific causal link between import duties and price levels. However, as has been recalled above (see paragraphs 126, 136 and 137), such a possibility was not called into question by the institutions in this instance. In addition, it should be recalled that the discretion of the EU institutions, on the basis of Article 2(10) of the basic regulation, must be exercised on a case-by-case basis, by reference to all the relevant facts (see, to that effect and by analogy, judgments of 14 March 1990, Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraph 43, and of 17 December 2010, EWRIA and Others v Commission, T‑369/08, EU:T:2010:549, paragraph 93). Consequently, the applicants’ arguments in that respect must also be rejected.

140 Insofar as the applicants submit, in the alternative, that the Council is in breach of its duty to state reasons, by derogating, without any statement of reasons or justifications, from the general principle that import duties have the effect of increasing the price of the product concerned on the domestic market, it should be noted that, according to settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the EU authority which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the EU judicature to exercise its power of review (judgments of 30 September 2003, Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 88, and of 12 October 1999, Acme v Council, T‑48/96, EU:T:1999:251, paragraph 141).

141 However, the statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it meets the applicable requirements must be assessed in the light not only of its wording but also of its context and all the legal rules governing the matter in question. In addition, it should be pointed out that the institutions are not obliged to adopt a position on all the arguments relied on by the persons concerned. It is sufficient for the institution which adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation (see, to that effect, judgments of 11 January 2007, Technische Glaswerke Ilmenau v Commission, C‑404/04 P, not published, EU:C:2007:6, paragraph 30, and of 13 September 2010, Whirlpool Europe v Council, T‑314/06, EU:T:2010:390, paragraphs 113 and 114).

142 In the present case, the Council adopted a position on the applicants’ request and dismissed it by stating that no link had been established between an import duty as such and price level on the domestic market. In the light of the applicants’ arguments and of the evidence submitted in the administrative procedure, that statement of reasons must be considered to be sufficient.

143 As a result, the second plea and, accordingly, the entire action must be dismissed.

144 Under Article 134(1) 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. As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.

145 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs.

2. Orders Crown Equipment (Suzhou) Co. Ltd and Crown Gabelstapler GmbH & Co. KG to bear their own costs and to pay those incurred by the Council of the European Union;

A – The third plea in law, concerning the incorrect application of the ‘lesser duty’ rule

B – The first plea in law, concerning the determination of normal value on the basis of data from Brazil

C – The second plea in law, concerning the failure to adjust the normal value in order to account for the distorting effect of the 14% import duty in the analogue country

	Total sales in Brazil in units of measurement	Paletrans’ sales in Brazil in units of measurement	Paletrans’ market share in %
Last financial year	13 730	7 403	54%
RIP	17 270	7 411	43%

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Crown Equipment (Suzhou) and Crown Gabelstapler v Council (Judgment) [2016] EUECJ T-351/13 (18 October 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T35113.html Cite as: [2016] EUECJ T-351/13, EU:T:2016:616, ECLI:EU:T:2016:616

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