Zhejiang Hangtong Machinery Manufacture and Ningbo Hi-Tech Zone Tongcheng Auto Parts v Commission (Dumping - Imports of steel road wheels originating in China - Judgment) [2022] EUECJ T-278/20 (06 July 2022)

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(Dumping – Imports of steel road wheels originating in China – Imposition of a definitive anti-dumping duty and definitive collection of the provisional duty – Articles 17(4), 18 and 20 of Regulation (EU) 2016/1036 – Lack of cooperation – Insufficient information provided to the Commission)

Zhejiang Hangtong Machinery Manufacture Co. Ltd, established in Taizhou (China),

Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd, established in Ningbo (China),

European Commission, represented by K. Blanck and G. Luengo, acting as Agents,

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

1 By their action based on Article 263 TFEU, the applicants, Zhejiang Hangtong Machinery Manufacture Co. Ltd (‘HT’) and Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd (‘TC’), seek the partial annulment of Commission Implementing Regulation (EU) 2020/353 of 3 March 2020 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of steel road wheels originating in the People’s Republic of China (OJ 2020 L 65, p. 9; ‘the contested regulation’).

2 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’), as amended, defines, in EU law, the rules applicable to anti-dumping proceedings.

3 The applicants are two companies governed by Chinese law established in China. Together with Ningbo Wheelsky Company Limited (‘WS’), a company governed by Samoan law, HT and TC form part of the Hangtong group (‘the HT group’); all three are related companies.

4 Within that group, HT produces steel wheels, sold both on the Chinese domestic market and for export, whereas TC is a trader and WS receives payment for sales made to customer-importers. For certain export transactions, the HT group uses Ningbo Ningdian International Trade Co., Ltd (‘ND’), a customs agent which is not linked to the applicants.

5 On 15 February 2019, following a complaint lodged by the Association of European Wheel Manufacturers (EUWA), the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of steel road wheels originating in the People’s Republic of China (OJ 2019 C 60, p. 19).

6 Following the applicants’ request to be included in sampling, in accordance with Article 17(2) of the basic regulation, the Commission decided to include them on 1 March 2019.

7 The Commission carried out an investigation at the applicants’ premises on 6 and 7 June 2019, and from 10 to 14 June 2019.

8 By letter of 20 June 2019, the Commission informed the applicants of its intention to apply to them the provisions of Article 18 of the basic regulation on account of the supply of false or misleading information.

9 In that regard, the Commission, with regard to the HT group, noted, inter alia, the existence of double accounting, certain false declarations made to both the customs authorities and the tax authorities and the failure to record transactions with EU importers, which did not officially exist in the accounts of that group. It stated that it was impossible for it to verify, on the basis of the audited accounts and tax declarations, the transactions between the HT group and traders unrelated to it, as well as those which took place with EU importers.

10 By letter of 28 June 2019, the applicants asked the Commission not to apply Article 18 of the basic regulation to them.

11 To that end, they claimed, inter alia, that the income from sales recorded in the accounts of HT and TC reflected value added tax (VAT) invoices or customs declarations and that the customs declarations were 90% factually accurate.

12 The applicants stated that the values necessary to establish an export price could easily be found, first, by making use of the DMSAL (sales in the domestic market) table, which lists, on the basis of VAT invoices, all domestic sales made by the HT group, including those which led to an export and, secondly, by an analysis of the RLSALUR (resales of related parties to independent customers in the EU) table.

13 The applicants claimed that, since there were eight importers, it was possible for the Commission to verify with them, and with the customs authorities of the European Union, the amount actually paid by those importers.

14 Finally, they claimed that, should the Commission find that the information was not credible, it was still possible not to apply Article 18 of the basic regulation in its entirety, since the information relating to the normal value was credible.

15 At their request, the applicants were heard for the first time by the hearing officer on 23 August 2019 as regards the possible application of Article 18 of the basic regulation. On that occasion, as is apparent from the final hearing report of 17 September 2019, the hearing officer observed, inter alia, that, in the light of the best efforts made by the HT group, it was not necessary to consider that group not to be cooperative in the sense that it provided false or misleading information. The hearing officer invited the Commission services to clarify further the use of Article 18 of the basic regulation and to consider the new and additional evidence received in the course of investigation, as far as possible.

16 Following that hearing, the applicants, by letter of 27 August 2019, maintained the position which they had set out in their letter of 28 June 2019.

17 The Commission, in view of the degree of non-cooperation of the sampled companies, applied Article 18 of the basic regulation, in accordance with Article 17(4) of that regulation.

18 On that basis, on 9 October 2019, the Commission adopted Implementing Regulation (EU) 2019/1693 imposing a provisional anti-dumping duty on imports of steel road wheels originating in the People’s Republic of China (OJ 2019 L 259, p. 15; ‘the provisional regulation’).

19 Under that regulation, the anti-dumping duty was set at 50.3% for cooperating companies and at 66.4% for all other companies, including the applicants.

20 On 16 December 2019, the Commission disclosed the essential facts and considerations on the basis of which it intended to impose anti-dumping duties and definitively collecting the provisional duty imposed on imports of steel wheels originating in China.

21 On 3 January 2020, the applicants submitted to the Commission their comments on the definitive determination.

22 On 16 January 2020, the applicants were heard a second time in the presence of the hearing officer on the subject of the phase subsequent to the notification of the definitive determination. On that occasion, and as is apparent from the final hearing report of 7 February 2020, the hearing officer, after pointing out that the subject matter of the hearing had been limited to the question of normal value, stated inter alia that, following the applicants’ first hearing, the applicants had received more favourable treatment in the investigations and that their rights of defence had been observed in the proceeding to which they were subject.

24 That regulation confirmed, as regards the applicants, the rate of anti-dumping duty of 66.4% on imports of wheels of steel designed for use on the road, whether or not with their accessories and whether or not fitted with tyres, designed for road tractors, motor vehicles for the carriage of persons or for the carriage of goods, special purpose motor vehicles (for example, fire-fighting vehicles, spraying lorries) and trailers or semi-trailers, not mechanically propelled, of the above listed vehicles, originating in China.

27 In support of their application for annulment, the applicants put forward three pleas in law. The first plea alleges, inter alia, infringement of Article 17(1) to (4) of the basic regulation and breach of the principles of the protection of legitimate expectations, proportionality, non-discrimination and sound administration. The second plea alleges infringement of Article 18 of the basic regulation and Annex II to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103; ‘the WTO Anti-Dumping Agreement’), set out in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). Lastly, the third plea alleges, inter alia, infringement of Article 20(2) and (4) of the basic regulation and infringement of the rights of the defence by the Commission in the conduct of the investigation.

28 In that regard, and as a preliminary point, it should be noted, as was indeed confirmed at the hearing, that the applicants do not dispute, as such, the existence of dumping but the application to them of Article 18(1) of the basic regulation and the application to them of a definitive anti-dumping duty of 66.4%.

29 In addition, it should be noted that the issue of the incorrect application of Article 18(1) of the basic regulation, which is linked to the challenge to the unreliability of the data communicated, is addressed by the applicants in their second plea, whereas it appears that the resolution of the complaints set out in the first and third pleas in law depends essentially on whether the Commission, in the present case, correctly applied Article 18(1) of the basic regulation.

30 Consequently, the second plea should be dealt with first, before responding to the first and third pleas.

The second plea in law, alleging, first, a manifest error of assessment and infringement of Article 2(6a), (8), (10) and (11), Article 3, Article 6, Article 9(6) and Article 18(1) and (3) of the basic regulation and of paragraph 3 of Annex II to the WTO Anti-Dumping Agreement and, secondly, infringement of Articles 2 and 3, Article 6(6) and (8), Article 9(4) and Article 18(1) and (3) of the basic regulation and paragraph 3 of Annex II to the WTO Anti-Dumping Agreement

32 By the first part, the applicants claim, in essence, that the Commission was wrong to take the view that the export price data which they had communicated to it were unreliable. By the second part, they complain that the Commission failed to take account of their efforts to achieve the success of the investigation and did not calculate the export price on the basis of the data which they had communicated to it, even though those data were not ideal in all respects. By the third part, the applicants complain that the Commission failed to calculate the normal value and used the available data in order to determine their dumping margin.

– The first and second parts of the second plea, alleging a manifest error of assessment and infringement of Article 2(6a), (8), (9), (10) and (11), Article 3, Article 6, Article 9(6) and Article 18(1) and (3) of the basic regulation and paragraph 3 of Annex II to the WTO Anti-Dumping Agreement

33 By the first two parts of the second plea, which it is appropriate to examine together, the applicants claim, in the first place, that the data which they communicated to the Commission were sufficient to enable the Commission to establish a reliable export price.

34 In that regard, the applicants state that the selling prices of the steel wheels entered in the accounts of HT and TC were consistent with those mentioned on the VAT invoices and on the customs declarations of HT to TC, those prices corresponding to 90% of exports of steel wheels by the HT group to the European Union during the investigation period.

35 The difference between the amounts in the VAT invoices issued by HT to TC and the customs declarations relating to exports outside China affected only 10% of their total exports to the European Union, so that the Commission had, in accordance with its general practice, the possibility of not taking account of that remaining 10%.

36 In that regard, the applicants claim that the reasoning in the Commission’s statements in recitals 35 and 40 of the contested regulation is contradictory. The Commission cannot at the same time claim that there is fundamental uncertainty as to the reliability of the applicants’ accounting information, while at the same time acknowledging that the information on the normal value was reliable and verified and even though, as it accepted, the normal value represents 50% of the calculation of the dumping margin.

37 The applicants state that, irrespective of the lack of accounting of WS, the export price of goods sold in the European Union could be established on the basis of the DMSAL list, which listed and identified all sales of HT to TC with a view to exporting the goods to the European Union. The data in that list could easily be cross-checked with the customs entry forms for goods exported to the European Union, the VAT invoices for export to the European Union and the supporting documents for payment by EU customers, as shown by WS’s bank statements.

38 The applicants dispute the Commission’s findings that it was impossible for that institution to determine the export price with certainty, even though, in its own findings, the declared customs value corresponded to the initial commercial invoice, irrespective of the fact that, for the same operation, there could be two invoices, one concerning a link between HT and TC, the other a link between TC and ND. That means that the Commission could, on the basis of the prices charged by HT to TC or to ND, establish an export price by adjusting it, in accordance with its usual practice when it had reliable data on the normal value.

39 Those data could also be compared with the Chinese customs statistics, which, contrary to what the Commission attempts to demonstrate by means of the document in Annex B.2 to the defence, were correct. The alleged unreliability of those data is due to the fact that the Commission did not take into account the corrections which the applicants made in the document in Annex C.4 to the reply. Those data coincide with the RLSALUR list which they had amended and which lists all sales by parties related to independent customers in the European Union.

40 The applicants complain that the Commission failed to take the trouble to verify the total export sales of steel wheels by analysing the records of unrelated customers and export VAT invoices, as that institution had nevertheless undertaken to do in the communication which it had made to them at the same time as notification of the provisional regulation and even though seven of their eight customers within the European Union had agreed to cooperate with the Commission.

41 The applicants claim that, in any event, they succeeded in proving, on the basis of the bank slips of WS, 98% of their exports to the European Union and, on the basis of the customs import forms to the European Union, 65% of exports to the European Union.

42 In that regard, as regards the data relating to the import forms for the goods into the European Union, the applicants point out that, as they indicated to the Commission in their observations of 27 August 2019, they sent that institution the EUSALES listing, which identified their eight customers in the European Union, then, an updated list of those customers, with their details and, for most of them, proof of payment of customs duties on importation into the European Union. Those factors confirmed, in essence, that the export prices charged had been paid. The remainder, for which information was not provided, was due to the fact that some of their customers had not wished to provide them with the documents relating to the imports which they had made.

43 The applicants add that, as is apparent from the case-law of the Court of Justice and WTO case-law, the Commission could not, in order to justify the rejection of the establishment of the export price, rely on the fact that they had not adduced evidence of a clear division between exports made in the European Union and outside the European Union, owing to the fact that they had not communicated to them a resale table relating to those exports, even though they had never been asked to do so. They claim that, in any event, the operation of the DMSAL table, which showed such a distribution, made it possible to distinguish between sales made to importers of the European Union and sales to importers established in third countries.

44 In that regard, the applicants emphasise that they use a triangular system of invoicing between related companies for exports to the European Union. Under that system, the selling prices of goods entered on EU customers’ invoices from China may and do often differ from those declared to the customs authorities of the European Union for those goods at the time of their importation.

45 To the extent that the transaction value reflects a sale for export with a value not less than the market value and inherent cost of the goods at issue, including the cost for freight and insurance at the EU border, the transaction value is legitimately used for EU customs valuation purposes.

46 The applicants assert that the information which they had communicated to the Commission constituted by far the best available information on export sales of steel wheels, within the meaning of Annex II to the WTO Anti-Dumping Agreement. That was also noted by the hearing officer in her first report, according to which the Commission stated that the applicants had acted to the best of their ability.

47 The applicants conclude from this that, by rejecting the data communicated to it, by failing to carry out the operations which the Commission had undertaken to carry out in the communication made at the time of the notification of the provisional regulation and basing its findings on information which it had not requested from them, the Commission failed to make a fair comparison of prices by using export prices, as provided for in Article 2(11) of the basic regulation.

48 The applicants claim, in the second place, that, as regards the export price, the Commission ought to have made use of Article 18(3) of the basic regulation by referring to ‘ex go-down’ sales of HT to TC and ND in order to calculate the price and volume of exports to the European Union during the investigation period, so that it could, pursuant to Article 18(3) of the basic regulation, establish precisely the dumping and injury margins concerning them, without taking into account WS’s operations, in accordance with the applicable case-law, in particular paragraphs 120 and 121 of the judgment of 19 March 2015, City Cycle Industries v Council (T‑413/13, not published, EU:T:2015:164).

49 In that regard, the applicants claim that the Commission never disputed the prices charged by HT to TC and ND and the values of the steel wheels declared to the customs authorities of the European Union when importing the applicants’ steel wheels. They add that the determination of the export price on the basis of such data is consistent with Article 2(8) and (9) of the basic regulation.

50 They state that the Commission’s line of argument concerning the rejection of the establishment of the export price on the basis of the invoicing between HT and TC is unjustified. It is established that those prices are lower than the prices actually charged to EU customers. The determination of the export price on the basis of those data is thus such as to establish more severe anti-dumping duties than that which would have been established on the basis of the prices actually charged to EU importers.

51 As regards the Commission’s objection that uncertain values cannot be applied because of Article 9(6) of the basic regulation, the applicants submit that those provisions are intended to apply even where the Commission uses Article 18 of the basic regulation in respect of sampled producers. The margins of the producers concerned are not then taken into account in the calculation of the weighted average dumping margin applicable to producers who were not included in the sample.

52 In any event, the Commission does not show how, irrespective of the application of Article 9(6) of the basic regulation, the inclusion of the applicants in the sample was likely to have a significant effect on the results of the investigation.

53 Finally, they claim that, under WTO rules, the Commission could not legitimately refuse to apply the provisions of Article 18(3) of the basic regulation.

55 In that regard, in order to respond to the applicants’ arguments, it is necessary, first, to analyse whether the documents submitted, such as the DMSAL list or the customs declarations, were sufficiently reliable to enable the Commission to establish an export price and then, secondly, to determine whether it was possible for the Commission to use Article 18(3) of the basic regulation in order to establish the export price, in circumstances in which the applicants had provided all the documents in their possession.

56 As regards, first of all, the question of the reliability of the data relating to the establishment of the export price, it should be noted, as a preliminary point, that, according to the Court’s settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the Commission enjoys a broad discretion by reason of the complexity of the economic, political and legal situations which it must examine. The judicial review of such discretion must therefore be limited to verifying whether the 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 in the appraisal of those facts or a misuse of powers (see judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 68 and the case-law cited).

57 The Court of Justice has also held that the General Court’s review of the evidence on which the Commission based its findings does not constitute a new assessment of the facts replacing that of the Commission. That review does not encroach on the broad discretion of that institution in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the Commission. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 69 and the case-law cited).

58 Moreover, under the basic regulation, undertakings which are the subject of an anti-dumping investigation are required to provide the Commission with the information necessary to establish their dumping margin. If such information is not provided, those companies run the risk of data being taken into account other than those supplied by them pursuant to Article 18(1) of that regulation (see, to that effect, judgment of 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraph 65 and the case-law cited).

59 In that regard, it should be noted that an analysis of the Commission’s document in Annex B.1 to the defence, which is not disputed by the applicants, shows, in the first place, that, in each of the seven sales channels used by the HT group to export its products, the importers forwarded the payment for the goods sold to WS, which did not have any accounts. Consequently, and irrespective of the fact that Samoan company law does not set out a requirement that they must provide certified accounts, the bank statements of WS had no probative value.

60 In the second place, in all sales channels, sales were made to importers without the invoices drawn up in their name being recorded in the HT group. Either TC registered in its accounts invoices the amount of which was lower than that shown on the invoices sent to importers and, on the basis of those first invoices, made false declarations to the customs authorities as regards the export price (channel 1), or TC issued invoices in the name of the importers, but did not record them in its accounts (channels 2 and 3), or WS issued invoices which were not recorded in its accounts, in so far as Samoan law does not require companies to keep certified accounts (channels 4 and 5), or, finally, the invoices were issued by ND, which is a company external to the group and in respect of which the Commission could not obtain any information due to its lack of cooperation in the investigation (channels 6 and 7).

61 In the third place, in all sales channels, with the exception of the first sales channel, export goods were sold after the goods were sold by HT or TC to ND, which, for the reasons mentioned in paragraph 60 above, meant that it was impossible for the Commission to determine the sale price actually paid by the European importers.

62 The combination of all the factors mentioned in paragraphs 59 to 61 above does not permit the inference that the Commission made a manifest error in finding that the data relating to the export price were unreliable.

63 That means that the applicants’ claims that they provided evidence for 98% of payments by European importers on the basis of the bank statements of WS, 90% of sales prices on the basis of the VAT invoices issued by HT and, finally, 65% of exports to the European Union on the basis of the customs declarations of those importers must be regarded as mere assertions, just like the applicants’ assertion that the Commission did not take account of the triangular trading system that they had adopted.

64 Those inconsistencies were, moreover, highlighted at the hearing, during which the applicants acknowledged the impossibility for the Commission to use WS’s accounts, the lack of any accounting record of invoices from TC to European importers and, consequently, the difficulties in establishing a reliable export price in this case.

65 It is therefore necessary to analyse, in the first place, whether that export price could be established, as the applicants suggest, on the basis of the DMSAL list, of the VAT invoices issued by HT to TC and whether the Commission was wrong to consider that it was impossible to establish an export price, in the absence of a table distinguishing between exports to the European Union and others, disclosure of which was not requested during the investigation.

66 As regards, first of all, the DMSAL list and the VAT invoices issued by HT to TC, it should be noted that, as was pointed out at the hearing by the Commission, that evidence concerned sales made by HT to TC, that is to say intra-group and domestic sales the price of which was, consequently, different from that actually paid by the European importers. Moreover, as was confirmed at the hearing, it was impossible for the Commission to verify the reality of the exports to the European Union reported by the applicants in the absence of any credible accounts concerning those exports.

67 In that regard, as regards the applicants’ argument relating to the failure to produce a table distinguishing between exports to the European Union and other exports, it should be noted that, at the hearing, the applicants first stated that such a table was pointless, in so far as all the information contained therein was already contained in the DMSAL list, and then confirmed that they would have been able to produce such a table if the Commission had made a request to them to that effect, as is apparent from the comments sent on 25 October 2019, following the notification of the provisional regulation, and finally acknowledged that they had not provided such a table because they feared that the Commission would argue that that table was not credible due to the lack of invoices to support the data.

68 Those contradictory statements reveal the artificial nature of the applicants’ argument that the Commission was not entitled, in order to reject their data concerning the export price, to raise against them the failure to communicate a table showing exports to the European Union.

69 Although the Commission did not use those export data, it was not solely because of the absence of such a table, but because, as is apparent in particular from recitals 32, 35 and 40 of the contested regulation, the Commission had to deal with ‘the fundamental unreliability of the company’s records’ and with the impossibility of establishing with certainty the type and number of products exported to the European Union, with the result that it was impossible for it to establish an export price on the basis of the VAT invoices issued by HT to TC. Moreover, those findings are in no way inconsistent with the fact that the Commission considered that the data relating to normal value were reliable, since those data were properly recorded in HT’s accounts, unlike the export data.

70 In addition, the regulations to which the applicants refer in order to establish that the Commission departed from its usual practice with regard to the adjustment of export prices do not appear to be relevant, since the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of the applicable rules and, in particular, the provisions of the basic regulation, not on the basis of the Commission’s and the Council’s alleged previous decision-making practice (see, to that effect, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107).

71 As regards, in the second place, the arguments put forward by the applicants concerning the alleged lack of diligence on the part of the investigators with respect to the European importers and concerning the documents relating to those importers, it must first of all be observed that, contrary to the applicants’ assertion, the Commission never undertook to carry out an on-the-spot investigation of those importers in order to determine the export price. It is apparent from the specific communication to the applicants accompanying the provisional regulation that that institution merely took note of their proposal to that effect in a letter of 27 August 2019 and included in Annex A.21 to the application.

72 Next, apart from the fact that the applicants do not dispute the fact, set out in recital 33 of the contested regulation, that only three EU importers agreed to cooperate with the Commission, it should be noted that the declared number of those importers varied during the investigation from 8, as is apparent from the document of 27 August 2019, attached as Annex A.21 to the application, to 12 in January 2020, as is apparent from the documents in Annex A.28 to the application.

73 Such a variation in the number of EU importers implies, as confirmed at the hearing by the Commission, that that institution was entitled to take the view that it had no certainty as to the reliability of the information provided by the applicants concerning those importers, with the result that it cannot be criticised for not having taken it into account or for not having approached those importers. The criticism levelled at the Commission for having infringed Article 6(4) of the basic regulation cannot therefore be upheld.

74 As regards, in the third place, the arguments relating to the Chinese customs statistics, first, the summary tables of customs documents revealed inconsistencies which were highlighted by the Commission in Annex B.2 to the defence. That led the applicants to amend those tables, without, however, convincing the investigators, since they were unable to cross-check those data with the applicants’ accounting and tax data. Secondly, the reference value of the goods was expressed in those documents in kilograms and referred to total amounts of payment expressed in United States dollars, with the result that the Commission was unable to ascertain the type and quantities of products exported to the European Union, as well as the unit amounts of sales, which are, however, necessary in order to establish an export price. Finally, those documents were in part from ND, a company which is not linked to the applicants, which made it impossible for the Commission to verify their veracity and, consequently, their probative value.

75 As regards, lastly, the applicants’ complaint concerning the Commission’s infringement of Article 18(3) of the basic regulation, it should be noted that the objective of Article 18 of the basic regulation is to enable the Commission to continue the investigation even if the parties refuse to cooperate or do not cooperate sufficiently. The level of cooperation of the parties must be assessed on the basis of the concept of ‘necessary information’ used in that article, since, in order to be regarded as cooperating, the latter must provide the Commission with information enabling the Commission to establish the appropriate findings in an anti-dumping investigation. The assessment as to whether an item of information is ‘necessary’ must be carried out on a case-by-case basis (see, to that effect, judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraphs 53 and 55).

76 On that basis, it has already been held that the degree of effort displayed by an interested party in submitting certain information does not necessarily reflect the substantive quality of the information submitted, and in any case is not the only determining factor. Thus, where the requested information is not ultimately provided, the Commission is entitled to resort to the facts available in respect of the requested information (see, in relation to Article 6.8 of the WTO Anti-Dumping Agreement, the report of the panel established under the WTO entitled ‘Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey’ and adopted on 1 October 2002, point 7.242) (judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 104).

77 Finally, pursuant to settled case-law, Article 18(3) of the basic regulation provides that, where the information submitted by an interested party is not ideal in all respects, it should nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability. It is evident from the wording of that provision that the four conditions are to be applied cumulatively. Accordingly, if just one of them is not satisfied, that provision cannot be applied and the information in question cannot be taken into account (see judgment of 19 March 2015, City Cycle Industries v Council, T‑413/13, not published, EU:T:2015:164, paragraph 120 and the case-law cited).

78 In that regard, it must be held that, for the reasons already stated in paragraphs 59 to 62 above, the Commission was entitled to make use of Article 18(1) of the basic regulation in order to determine the export price, in so far as the deficiencies in the data communicated by the applicants made it excessively difficult to establish a reasonably accurate finding.

79 It follows from the foregoing that the Commission did not make a manifest error of assessment or infringe Article 18(1) and (3) and, consequently, Article 9(6) of the basic regulation or paragraph 3 of Annex II to the WTO Anti-Dumping Agreement when, in recitals 29 to 41 of the contested regulation, it found, in essence, that, irrespective of whether the applicants had acted to the best of their ability, the main difficulty encountered during the investigation was due to the absence of a complete and verifiable set of data on the export transactions, including and in particular as regards the goods exported, the volumes and the values, as a result of which the Commission found that it could not exercise any proper and independent control over those data and rejected them as a whole on the basis of the facts available, in accordance with the provisions of Article 18(1) of the basic regulation.

80 Lastly, it must be held that mere mention of the infringement of Article 2(6a), (8), (9), (10) and (11), Article 3 and Article 6 of the basic regulation, apart from being brief, is sufficient in order to demonstrate the relevance of the allegation of an infringement of those provisions and, consequently, to establish that the contested regulation is unlawful in that regard.

81 Consequently, the first and second parts of the second plea must be rejected.

– The third part of the second plea, alleging infringement of Articles 2 and 3, Article 6(6) and (8), Article 9(4) and Article 18(1) and (3) of the basic regulation and of paragraph 3 of Annex II to the WTO Anti-Dumping Agreement

82 By the third part of the second plea, the applicants claim, in essence, that, in failing to use the data submitted by them in order to determine the normal value, even though those data were held to be reliable, the Commission infringed Article 18(1) and (3) of the basic regulation and paragraph 3 of Annex II to the WTO Anti-Dumping Agreement, as well as Articles 2 and 3, Article 6(6) and (8) and Article 9(4) of that regulation. They add that the Commission did not sufficiently explain why it had not used those data in order to establish normal value.

83 In that regard, the applicants state that the Commission departed from its usual practice of resorting to the facts available only in circumstances where the data are not fully verifiable and reliable.

85 They assert that the Commission did not sufficiently explain why it had not calculated the normal value, even though it had reliable information in that regard, as is apparent from recitals 42 and 44 of the contested regulation.

86 The applicants claim that it was possible for the Commission to use their normal value in order to compare it to export prices to the European Union, to their constructed export prices to the European Union or at least to the export prices charged by the sole sampled and cooperating producer or to those provided by the other exporting producers which had requested an individual examination in accordance with Article 17(3) of the basic regulation or by the other interested parties.

87 They add that such an approach would have taken account of the fact that they had fully cooperated with the Commission throughout the investigation, which, moreover, was emphasised by the hearing officer and was not disputed by the Commission.

89 In that regard and as a preliminary point, as regards the applicants’ argument referred to in paragraph 87 above, it should be noted that, in the initial report of 17 September 2019, in view of the efforts which the applicants had made, the hearing officer considered that the application of the status of ‘non-cooperating’ to the applicants, in so far as they had provided false or misleading information, was not ideal and that she was seeking clarification of the use of Article 18 of the basic regulation. The fact remains that, in the second and last hearing report of 7 February 2020, that hearing officer made no further comment on the Commission’s recourse to that article, so that no conclusion can be drawn from those two documents as regards the level of cooperation of the applicants.

90 As regards the rules on which the applicants rely in order to claim the existence of an alleged practice on the part of the Commission, which consists of using the facts available only in circumstances in which the data are not entirely verifiable and reliable, it is sufficient to reject that argument on the basis of the case-law cited in paragraph 70 above.

91 As regards the WTO Anti-Dumping Agreement and, more specifically, Annex II to that agreement, and the related case-law, which was the subject of a written question for an answer at the hearing, it must be noted that it is in the light of those provisions that Article 18 of the basic regulation must be interpreted as far as possible, since it constitutes the transposition into EU law of the content of those provisions (see, to that effect, judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 40).

92 In that regard, it must be pointed out that, in paragraph 7.354 et seq. of the WTO panel report of 16 November 2007, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway (WT/DS337/R), on which the applicants rely, that panel, when the European Communities rejected an item of evidence relating to the establishment of normal value, emphasised that the investigating authority was required, pursuant to Article 6.8 of the WTO Anti-Dumping Agreement and paragraph 3 of Annex II to that agreement, to use the ‘verifiable’ information provided by the parties.

93 In the case of United States – Anti-Dumping and Countervailing Measures on Steel Plate from India (WT/DS206/R), on which the applicants also rely, it is true that, in paragraph 7.60 et seq. of its report, the WTO panel considered, in essence, that the investigating authorities had to endeavour to make maximum use of the data communicated to them by the parties, given that one of the fundamental objectives of the WTO Anti-Dumping Agreement as a whole was to ensure that objective determinations were made, based to the extent possible on facts.

94 The fact remains that, in paragraphs 7.62 and 7.64 of that report, the WTO panel stated that it was not possible to conclude that the investigating authority had to use information which, for example, was not verifiable or had not been submitted in good time, or that it had to use it, whatever the ensuing difficulties.

95 Moreover, as the Commission pointed out at the hearing, without the applicants having successfully challenged the point, it must be observed that the cases which gave rise to those two WTO reports differ from the present case in that, in those cases, the main difficulty encountered by the investigators did not, as in the present case, relate to establishing the export price, owing to the failure to disclose any reliable data concerning exports, in particular to the types of goods exported and the price thereof, but to establishing the normal value.

96 It follows from those two reports that although, as a matter of principle, the investigating authority must endeavour to use the information provided by the parties which is verifiable, it must do so as far as possible. That means that that authority may disregard information which, ultimately, is capable of giving results that do not enable a reasonably correct finding to be made.

97 In the context of the present case, any determination of the normal value would have been superfluous, since no dumping margin could have been established in the absence of the possibility of establishing the export price relating to the applicants, as is apparent from paragraphs 56 to 81 above.

98 That conclusion is not called into question by the applicants’ argument that it would have been possible to establish their normal value in order to compare it with the reconstructed export price for other producers. As the Commission pointed out at the hearing, the application of such a method, in the absence of any certainty as to the identity and quantity of the type of goods exported, as is apparent from paragraph 69 above, would inevitably have had the effect of associating values which did not correspond and, consequently, were asymmetrical, as a result of which, ultimately, the findings relating to the dumping margin would not have been reasonably correct.

99 As regards the complaint alleging an inadequate statement of the reasons why the Commission failed to calculate normal value, it should be noted that the Court has already held that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution 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 Courts to exercise their power of review. It is not, however, necessary for the reasoning to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, not published, EU:T:2012:531, paragraph 126 and the case-law cited). Moreover, the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to its observations submitted during the administrative procedure (judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 150). In particular, the statement of the reasons on which anti-dumping regulations are based is not required to specify the often very numerous and complex matters of fact and law dealt with in the regulations, provided that they fall within the general scheme of the body of measures of which they form part. It is sufficient for the reasoning of the institutions in the regulations to appear clearly and unequivocally (see, to that effect, judgment of 15 October 1998, Industrie des poudres sphériques v Council, T‑2/95, EU:T:1998:242, paragraph 357).

100 In that regard, it should be noted that, contrary to the applicants’ assertions, the grounds stated by the Commission in the contested regulation do make it possible to understand the reasons why it takes the view that the data relating to the normal value do not constitute half the information necessary to establish a dumping margin.

101 As the Commission stated clearly and unequivocally in recital 42 of the contested regulation, the determination of the normal value had no effect in the present case, since the information provided for the purpose of the determination of the export price, which is a fundamental element in the calculation of the dumping margin, was not reliable, since it was not verifiable.

102 Furthermore, it must be stated that that statement of reasons enabled the applicants to understand the reasons why the Commission did not establish their normal value in the present case and to challenge the lawfulness of that choice, as is apparent from the arguments raised in particular in the context of the present plea. Such a statement of reasons also enables the Courts of the European Union to review the lawfulness of the contested regulation.

103 Lastly, for the same reasons as those set out in paragraph 80 above, the alleged infringement of Articles 2 and 3, Article 6(6) and (8) and Article 9(4) of the basic regulation must be rejected.

104 It follows from the foregoing that the third part of the second plea and, consequently, the second plea in its entirety, must be rejected.

The first plea in law, alleging manifest errors of assessment, infringement of Articles 2 and 3, Article 17(3) and (4), Article 9(4) and Article 18 of the basic regulation and breach of the principles of the protection of legitimate expectations, proportionality, non-discrimination and sound administration

106 By the first part, the applicants complain, in essence, that the Commission applied Article 18 of the basic regulation to them before excluding them from the sample and thus infringed Article 17(4) of that regulation. By the second part, they claim that the Commission wrongly refused to calculate the dumping margin by incorrectly considering them to be non-originally sampled exporting producers. By the third part, they claim, in essence, that, by failing to take account of their best efforts and by applying a punitive rate of anti-dumping duty to them, the Commission infringed fundamental principles of EU law.

– The first part of the first plea, alleging infringement of Article 17(4) and Article 18 of the basic regulation

107 By the first part of the first plea, the applicants complain that the Commission characterised the lack of cooperation provided for in Article 17(4) of the basic regulation by reference to Article 18 of that regulation and thus infringed the first of those two articles.

108 In that regard, the applicants claim that they cooperated in the investigation. They add that a reading of recitals 16 and 18 of the provisional regulation, confirmed by recital 13 of the contested regulation, shows that, in the present case, the Commission first analysed whether Article 18 of the basic regulation should be applied to them, then applied the provisions of Article 17(4) of that regulation, even though those provisions first require an analysis of whether there is a persistent refusal to cooperate or insufficient time to select a new sample, which the Commission did not do.

109 Lastly, the applicants claim that the Commission had no reason to apply Article 17(4) of the basic regulation, since a group of exporting producers continued to cooperate.

110 The Commission contends that this part of the plea should be rejected. While claiming that the arguments set out therein are not sufficiently clear to meet the requirements laid down in Article 76(d) of the Rules of Procedure of the General Court, it asserts that those arguments and, consequently, the first part, must be rejected on the merits.

111 In the present case, as regards admissibility, it is true that the arguments put forward by the applicants in this part are not very clear.

112 The fact remains that those arguments make it possible to understand, admittedly in summary form, the essential legal and factual elements on which the applicants rely in order to characterise what they consider to constitute an infringement of Article 17(4) of the basic regulation, with the result that that part of the plea must be declared admissible (see, to that effect, judgment of 25 October 2011, CHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 60 and the case-law cited).

113 As to the substance, it should be noted that, contrary to the applicants’ assertions, recitals 22 and 272 of the provisional regulation, and recital 81 of the contested regulation, show that, after the applicants had been removed, only the related companies in the Xingmin group and, consequently, a single exporting producer, remained in the sample. That made that sample irrelevant and therefore non-operational for the application of Article 17 of the basic regulation.

114 It should be added that the reading of recitals 16 and 18 of the provisional regulation, which the applicants criticise, must be made in conjunction with that of recitals 184 and 185 of that regulation. That shows that it was because the data which the applicants had provided to it were not reliable and that there was only one exporting producer in the sample that, after finding that all or part of the sampled producers had not cooperated, and that there was insufficient time to select a new sample, in accordance with Article 17(4) of the basic regulation, the Commission put an end to its use of sampling and resorted to Article 18 of that regulation.

115 It follows that that approach on the part of the Commission does not reveal any manifest error of assessment of the facts or that an error of law was made, with the result that the first part of the first plea must be rejected.

– The second part of the first plea, alleging infringement of Article 17(3) and (4) of the basic regulation

116 By the second part of the first plea, the applicants complain, in essence, that the Commission disregarded the data relating to the normal value, which it had nevertheless considered to be verifiable and reliable, failed to calculate their dumping margin, in accordance with Article 6(8) of the basic regulation, and thus treated those applicants as non-sampled exporting producers, in accordance with Article 17(3) of the basic regulation.

117 The Commission contends that the second part of the first plea in law should be rejected.

118 In that regard, and for the reasons already mentioned in paragraphs 82 to 104 above, the Commission did not make a manifest error of assessment of the facts or err in law in finding that the determination of the normal value concerning the applicants was irrelevant in the present case.

119 It follows that the applicants’ complaints alleging infringement of Article 17 of the basic regulation are unfounded, with the result that the second part of the first plea must be rejected.

– The third part of the first plea, alleging infringement of the principles of the protection of legitimate expectations, proportionality, non-discrimination and sound administration and of Article 9(4) of the basic regulation

120 By the third part of the first plea, the applicants claim that, by imposing on them an anti-dumping duty of 66.4%, equal to that of the ‘other companies’, unlike companies which had not initially been included in the sample, to which an anti-dumping duty of 50.3% was applied, the Commission failed to take account of the best efforts which they had made in attempting to prove their dumping margin and thus infringed the principles of the protection of legitimate expectations, proportionality and non-discrimination, as well as Article 9(4) of the basic regulation.

121 The applicants state that, throughout the investigation, they duly cooperated with the Commission in compliance with the deadlines set by the Commission, they provided the Commission with reliable data on the normal value and, unlike companies which were not initially included in the sample, the Commission was in possession of the types of steel wheels that they produced, so that they were entitled to expect to be treated as well as, and not worse than, those companies.

122 The applicants add that the Commission’s argument that they do not prove that the selection of products made for the calculation of the dumping margin for them is inappropriate is contrary to the principle that the burden of proof of the calculation of the dumping margin lies with that institution, as is apparent from paragraph 40 of the judgment of 12 October 1999, Acme v Council (T‑48/96, EU:T:1999:251).

123 The applicants state that the establishment of the anti-dumping duty applicable to them infringes Article 9(4) of the basic regulation.

124 Lastly, the applicants claim that, after the adoption of the hearing officer’s final report on the hearing of 23 August 2019, the Commission should, in accordance with the principle of sound administration, have adopted a new note verbale revising the previous one and rescinding the status of non-cooperating party with respect to them, just as it should have done in the provisional regulation and in the contested regulation.

125 The Commission contends that the third part of the first plea in law should be rejected.

126 In that regard, it should be noted that it is settled case-law that the Commission is required to observe the fundamental rights of the EU legal order in the course of an administrative proceeding in the matter of defence against dumped imports from countries not members of the European Union, which include the right to sound administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. According to the case-law relating to the principle of sound administration, where the institutions of the European Union have a power of appraisal, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 189 and the case-law cited).

127 Moreover, in accordance with the principle of proportionality, the legality of EU rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous (judgment of 15 September 2021, Arnaoutakis and Others v Parliament, T‑240/20 to T‑245/20, not published, EU:T:2021:590, paragraph 86).

128 According to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where the European Union authority has, by giving precise assurances, caused him or her to entertain expectations which are justified. The assurances given must, moreover, comply with the applicable rules (see judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 187 and the case-law cited).

129 The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 11 September 2018, Foshan Lihua Ceramic v Commission, T‑654/16, EU:T:2018:525, paragraph 34).

130 In that regard, it should be noted that, as is apparent from paragraphs 31 to 104 above, the Commission did not err in law or in its assessment of the facts when it found, irrespective of the applicants’ efforts to submit reliable data in order to establish their dumping margin, that the data relating to the determination of the export price that they had provided to it were unreliable and that there was no point in establishing a normal value. The Commission therefore took the view that the applicants were not cooperating and applied Article 18(1) of the basic regulation to them, which in turn called on them to be subject to the provisions of Article 18(6) of that regulation, pursuant to which ‘if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated’.

131 It was in the light of the factors mentioned in paragraph 130 above that, in recital 46 of the contested regulation, the Commission, after noting that it was impossible for it to verify the applicants’ export sales and to determine precisely the types of articles exported to the European Union, ‘considered it appropriate that the margin given to [the applicants] be equal to the residual margin [of 66.4%]’. As is apparent from recital 186 of the provisional regulation, the residual dumping margin was established for the eight product types with the highest individual dumping margins and whose export sales represented 29% of the total volume of those sales.

132 As regards the cooperating producers which were not included in the sample and as is apparent from recital 185 of the provisional regulation, the Commission ‘exceptionally decided to set the dumping margin at the same level as the only remaining sampled exporting producer’. It considered that, unlike the applicants, ‘the failure of the sample was also caused by the exclusion of certain product types which, with the consequent exclusion of one of the two cooperating exporting producers left in the sample, had a direct impact on the sample’. The Commission ‘also took into account that the remaining company in the sample accounted for around 20% of imports of the product concerned and exported a wide range of product types to the Union’.

133 First of all, for the reasons already mentioned in paragraphs 55 to 81 above, the applicants cannot complain that the Commission adopted a solution less favourable to them than the worst of the alternative proposals which they had proposed to it in order to establish the dumping margin, even though none of those proposals allowed it to be in a position to consider that the dumping margin was reasonably consistent with the reality of the export transactions carried out by the applicants.

134 Next, although the applicants describe the residual dumping margin as ‘punitive’, it is common ground that that margin was determined by the Commission not in an arbitrary or punitive manner, but after it had found that sampling had failed and properly applied Article 18 of the basic regulation to the applicants. That residual margin was established on the basis of a not insignificant proportion of the exports of the single exporting producer, so that the use of such a classification with regard to that margin, however high, is not justified.

135 In that regard, it should be noted that, when the Commission states that the applicants do not prove that the selection of the eight product types used to establish the residual dumping margin would be manifestly inappropriate in their case, it merely states that, during the investigation, the applicants did not adduce sufficient evidence to establish with certainty the products which they exported to the European Union, as a result of which, although the intention to reverse the burden of proof cannot be attributed to the Commission, the applicants have not demonstrated the inadequacy of the products taken into account in order to establish the residual dumping margin.

136 In addition, apart from the fact that the applicants provide no explanation as to why the Commission infringed Article 9(4) of the basic regulation, it is common ground that, in determining the dumping margin to which they were subject on the basis of data other than those provided by them, the Commission did not infringe that article, since it was open to it to apply Article 18 of that regulation to them, as is apparent from paragraphs 56 to 104 above.

137 Lastly, as regards the complaint that the applicants were wrongly treated differently from exporting producers which were not included in the sample but were considered to have cooperated, it is sufficient to note that the objective situation of those producers differed from that of the applicants, in that, as regards the former, the Commission did not find, unlike the latter, that they had not communicated any reliable data concerning their export operations or that they were therefore in part responsible for the failure of the attempt to determine the dumping margin by sampling.

138 That led the Commission, without it being possible to attribute to it any breach of the principle of non-discrimination, to apply to companies which were not included in the sample but which cooperated, ‘exceptionally’, the dumping rate applicable to the only cooperating company.

139 It follows from the foregoing that, since, first, the dumping margin established with regard to the applicants was based on a not insignificant quantity of goods exported by the only company which cooperated in the investigation and, secondly, the objective situation of the companies which were not included in the sampling differed from those of the applicants, the Commission did not infringe the principle of proportionality or the principle of non-discrimination in applying to the applicants the anti-dumping duty of 66.4%.

140 As regards the alleged infringement of the principle of the protection of legitimate expectations, as is apparent from paragraph 89 above, contrary to the applicants’ assertion, the hearing officer, by asking the Commission, after the applicants’ first hearing, to clarify better the reasons justifying recourse to Article 18(1) of the basic regulation, never gave them any assurances that, in the subsequent stages of the procedure, that institution would consider them to be cooperating; that complaint must accordingly be rejected.

141 As regards, lastly, the complaint relating to the principle of sound administration, it is true that, following the hearing report of the hearing officer of 17 September 2019, the Commission’s services did not send a new note verbale to the applicants. The fact remains that, if such a note was not sent, the applicants were to consider that the Commission’s position regarding the use of Article 18 of the basic regulation had not changed, which, moreover, was the case. Additionally, as the hearing officer pointed out in her hearing report of 16 January 2020, the applicants received more favourable treatment during the investigation. That confirms that all the relevant factors concerning the applicants’ situation were analysed carefully and impartially by the Commission and that the complaint alleging breach of the principle of sound administration must be rejected as unfounded.

142 It follows from the foregoing that the third part of the first plea must be rejected as unfounded.

143 Lastly, for the same reasons as those set out in paragraph 80 above, the alleged infringement of Articles 2 and 3 of the basic regulation must be rejected and, consequently, the first plea must be rejected in its entirety.

The third plea, alleging infringement of the applicants’ rights of defence and infringement of Article 20(2) and (4) of the basic regulation and of Article 12.2 of the WTO Anti-Dumping Agreement

145 By the first part, the applicants complain that the Commission failed to calculate and disclose their normal value, in breach of Article 20(2) and (4) of the basic regulation and Article 12.2 of the WTO Anti-Dumping Agreement, and failed to disclose to them the information which it used to calculate the dumping margin applied to them.

146 By the second part, the applicants complain that the Commission rejected the price undertaking offer which they made to that institution and made it impossible for them, in practice, to ask for a review of their situation.

– The first part of the third plea, alleging failure to calculate and disclose the normal value, and failure to disclose the information used to calculate the dumping margin

147 The applicants claim, in essence, that it follows from WTO case-law that the investigating body is required to disclose information on the product types used for price comparisons to determine the existence of dumping and, in certain circumstances, the information necessary for the submission of a request for adjustments in order to ensure a fair comparison between the export price and the normal value.

148 They add that it has also already been held by the WTO that, if a party covered by the investigation produced prima facie evidence that access to the information had been refused, it was for the investigating authority to show that that prima facie evidence was not correct, just as the investigating authority had to grant parties access to the file on a regular and routine basis.

149 The applicants claim that, in accordance with settled case-law, first, the parties have an essential right to be able to inspect the file, secondly, the Commission may not rely on documents which were not made available to the applicant during the investigation and to which no reference is made in the anti-dumping regulation in order to establish proof, thirdly, the burden of proving disclosure of the documents rests with the EU institutions, fourthly, those institutions must examine the facts available without imposing the burden of proof on one of the parties, and, finally, fifthly, short of proving that, if there had been no breach of the rights of defence, the EU institutions would not have ruled differently, the contested regulation must be annulled.

150 The applicants add that, according to equally settled case-law, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must, in accordance with the principle of respect for the rights of the defence, be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of allegations concerning the existence of dumping and the resultant injury.

151 The applicants emphasise, in that regard and in the first place, that the Commission did not disclose the normal value of their products exported to the European Union. By proceeding in that way, the Commission prevented the applicants from submitting observations which would have allowed the outcome of the investigation of the steel wheels to be more favourable to them. They could have submitted observations on the calculation of their dumping and injury margins, on the basis of a comparison of their own normal value and their export types and prices, possibly with an adjustment to the export price.

152 The applicants state, in the second place, that the Commission did not disclose to them the information which it had used to establish the dumping and injury margins relating to the eight types of steel wheels exported to the European Union by the only Chinese producer included in the cooperating sample. In so far as that information was confidential, the Commission should have provided the applicants with a non-confidential summary of that information, which it did not do.

153 The applicants claim that, although the final report of the hearing officer of 16 January 2020 stated that the number of hearings held with the applicants did not necessarily reveal any infringements of the rights of the defence, she did not reach a definitive conclusion on that issue and had not ruled on the infringement of the applicants’ rights of defence owing to the failure to disclose the calculation of the normal value.

154 The Commission contends that the Court should reject the applicants’ arguments.

155 In that regard, as regards, in the first place, the complaint that the failure to disclose the normal value established on the basis of the data provided by the applicants undermined their rights of defence in the conduct of the investigation, suffice it to note that, as mentioned in paragraphs 100 to 104 above, the Commission correctly and adequately stated the reasons why it was unnecessary to calculate the applicants’ normal value, as a result of which the first complaint must be rejected.

156 As regards, in the second place, the complaint alleging infringement of the rights of the defence owing to the failure to disclose the information used by the Commission in order to establish the dumping and injury margins relating to the eight types of steel wheels exported to the European Union by the only sampled Chinese producer which cooperated, it must first of all be noted that, in accordance with settled case-law, the undertakings concerned by an investigation preceding the adoption of an anti-dumping regulation must be placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 134 and the case-law cited).

157 However, it is for the interested parties in an anti-dumping investigation procedure to place the institutions in a position to assess the difficulties which the absence of an element in the information put at their disposal could cause them. A fortiori, such an interested party is not entitled to complain before the Court that information was not put at its disposal if, in the course of the investigation procedure that led to the contested anti-dumping regulation, it had not made any request to the institutions in relation to that particular information (see judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 93 and the case-law cited).

158 On the one hand, it follows from the wording of Article 6(7) of the basic regulation that the interested parties in an anti-dumping investigation procedure, such as the applicants, may raise a complaint regarding the absence of a document in the non-confidential investigation file only if four cumulative conditions are met. First, such a document must contain information provided to the Commission by a party to the investigation, which must have been used in the course of that investigation. Secondly, that document must not be either an internal document prepared by the EU authorities nor be confidential. Thirdly, the information contained in that document must be relevant for the defence of the interests of the interested party in question. Fourthly and lastly, that interested party must have submitted a written request to examine that document (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 109).

159 On the other hand, Article 20(1) and (3) of the basic regulation makes the disclosure of that information specific to the interested parties subject to the submission by them of a written request made, as regards the provisional disclosure, immediately after the imposition of provisional measures, or, as regards the final disclosure, no later than one month after the publication of the imposition of those provisional measures.

160 Moreover, according to settled case-law, the principles governing the right to information must be reconciled with the requirements of confidentiality, in particular the obligation of the institutions to respect business secrecy. In that regard, the institutions’ obligation to ensure the confidential treatment of information, the disclosure of which would have a significantly adverse effect for the undertaking that had provided it, cannot deprive the other interested parties, in particular the exporters, of the procedural guarantees laid down in the basic regulation, nor deprive of their substance the rights that they enjoy pursuant to the same provisions (see judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 94 and the case-law cited).

161 In the present case, it should be noted that the applicants do not dispute the confidential nature of the data relating to the eight types of wheels used to establish the residual dumping margin and which had been provided by the only cooperating exporting producer included in the sample, which was one of their competitors. Nor do they set out the data relating to the eight product types used to establish the residual dumping margin which they would have liked to see disclosed.

162 In any event, it should be noted that, in response to a question put at the hearing both to the applicants and to the Commission, the Commission stated that the applicants had never asked it during the investigation for information on the method of calculating their residual dumping and injury margin.

163 Neither the documents before the Court nor the explanations given by the applicants at the hearing make it possible to establish that they submitted a written request to the Commission to provide them specifically with the information used to establish the dumping margin of the eight types of steel wheels exported to the European Union by the sole sampled exporting producer which cooperated.

164 In that regard, it must be pointed out that, contrary to the applicants’ submission, their request that the normal value be disclosed did not relate jointly to their normal value and the normal value used to establish the residual margin, but only to the first of those two values. The reason for the request for disclosure of the applicants’ normal value was their intention to draw up a proposal concerning a minimum price bid, the determination of which required knowledge of their own normal value. That is highlighted by the summary of the final interview with the hearing officer, according to which the latter stated only that the HT group reiterated its intention to submit a minimum price bid and by the same token to know its normal value (‘Finally, the [HT] group repeated their willingness to propose a minimum import price undertaking for which they wanted to know their NV’).

165 With regard to WTO case-law, it should be noted that both in European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397/AB/RW), as is apparent, inter alia, from paragraph 5.4 of the Appellate Body Report, and in Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (WT/DS156/R), as can be seen, inter alia, from paragraphs 8.131 to 8.136 of the panel report, the applicants had, contrary to what happened in the present case, requested either disclosure of data or access to the file, which was denied.

166 In so far as the facts which led to the decisions in the two cases mentioned in paragraph 165 above differ from those of the present case, reliance on them does not appear useful in the present case.

167 Thus, since, in the present case, by failing, contrary to the provisions of Article 6(7) and Article 20(1) and (3) of the basic regulation, to submit a written request to the Commission to disclose the data used to establish the residual dumping margin, and by thus making it impossible for the Commission to know exactly the information for which they sought disclosure, to assess the problems posed to them by the lack of knowledge of that information and the reasons for which it might object to their disclosure, as well as for the reasons given in paragraph 161 above, it must be held that the applicants have no grounds for complaining of a breach of the principle of respect for the rights of the defence.

168 It follows that this complaint must be rejected, as, consequently, must the first part in its entirety.

– The second part of the third plea, alleging unjustified rejection of the price undertaking and the outcome of the procedure

169 In the second part of the third plea, the applicants complain, in the first place, that the Commission, in recital 90 of the contested regulation, rejected the offer of a price undertaking which they were prepared to make, on the ground that that undertaking did not guarantee that it reflected the normal value.

170 They claim that, in the absence of any disclosure of normal value, they were unable to meet the Commission’s expectations, as a result of the Commission’s own conduct, and to propose a minimum import price, since the establishment of normal value is an essential factor in establishing such a price.

171 They add that it is impossible to reconcile recital 90 of the contested regulation, in which they are referred to as ‘one of the sampled [companies]’, in particular with the operative part of that regulation, which treats them as ‘all other companies’.

172 Secondly, they complain that the Commission made it materially impossible for them to request an interim review of the anti-dumping duties imposed on them because of the failure to disclose the normal value. In that regard, they state that the contested regulation makes no mention at all of the possibility afforded to the applicants of requesting an interim review of their situation or a refund of the duties collected in accordance with Article 11(8) of the basic regulation.

173 The Commission contends that the second part of the third ground of appeal should be rejected.

174 In that regard, and without going back over the reasons why the Commission did not determine the applicants’ normal value, it should be noted that, according to recital 90 of the contested regulation, the Commission did not reject, as the applicants claim, the applicants’ offer of a price undertaking because of a failure to determine the normal value, but only because that offer was incomplete, since it did not contain a minimum import price, which is a different concept from that of the normal value.

175 In any event, that complaint must be rejected in so far as the applicants do not establish a sufficient link between the rejection of the minimum import offer and the lack of disclosure of their normal value, in respect of which the Commission was, moreover, entitled to consider that its calculation was pointless, for the reasons already mentioned in paragraphs 97 to 104 above.

176 As regards the claim that it is impossible to reconcile recital 90 with the operative part of the contested regulation, it is sufficient to note that the applicants acknowledged themselves as being referred to in that recital and by the expression ‘the other producers’, which, in itself, is capable of showing that the ambiguity to which they refer is in fact non-existent.

177 Lastly, as regards the applicants’ assertions that, in the absence of knowledge of their normal value, they could not request in the future a review or repayment of the duties collected pursuant to Article 11(3) and (8) of the basic regulation, it should be noted that those claims are examined in relation to the dumping rate applied to the applicant and that which it claims on the day of the application. Thus, since it does not appear that the alleged failure of which they complain, which concerns, moreover, a hypothetical and future situation, is capable of adversely affecting their rights, that complaint must be rejected.

178 As regards the complaint that the contested regulation makes no mention of the possibility for the applicants to request an interim review of their situation and reimbursement of the duties collected, it should be noted that recital 46 of that regulation refers to the ability to request such a refund and that the possibility of requesting a review is expressly provided for in the basic regulation.

179 It follows that the second part of the third plea and, therefore, the third plea in its entirety, must be rejected.

180 In the light of the foregoing considerations, the action must therefore be dismissed in its entirety.

181 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

2. Orders Zhejiang Hangtong Machinery Manufacture Co. Ltd and Ningbo Hi-Tech Zone Tongcheng Auto Parts Co. Ltd to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Zhejiang Hangtong Machinery Manufacture and Ningbo Hi-Tech Zone Tongcheng Auto Parts v Commission (Dumping - Imports of steel road wheels originating in China - Judgment) [2022] EUECJ T-278/20 (06 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T27820.html Cite as: ECLI:EU:T:2022:417, [2022] EUECJ T-278/20, EU:T:2022:417

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