Vyatsky Plywood Mill v Commission (Dumping - Imports of birch plywood originating in Russia - Judgment) [2024] EUECJ T-32/22 (11 September 2024)

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( Dumping – Imports of birch plywood originating in Russia – Definitive anti-dumping duty – Implementing Regulation (EU) 2021/1930 – Objective examination – Post-investigation period – Market segmentation – Other injury factors – Article 3(2), (6) and (7) of Regulation (EU) 2016/1036 – Equal treatment – Union interest – Article 21 of Regulation 2016/1036 – Rights of the defence )

Vyatsky Plywood Mill OOO, established in Kirov (Russia), represented by M. Krestiyanova and N. Tuominen, lawyers,

European Commission, represented by G. Luengo, R. Pethke and J. Zieliński, acting as Agents,

composed of M.J. Costeira, President, M. Kancheva and U. Öberg (Rapporteur), Judges,

1 By its action based on Article 263 TFEU, the applicant, Vyatsky Plywood Mill OOO, seeks annulment of Commission Implementing Regulation (EU) 2021/1930 of 8 November 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of birch plywood originating in Russia (OJ 2021 L 394, p. 7; ‘the contested regulation’).

2 The applicant is a Russian exporting producer of birch plywood, which exports, inter alia, to the European Union.

3 Following a complaint lodged on 31 August 2020 on behalf of the Union birch plywood industry by the Woodstock Consortium, in accordance with Article 5(4) of 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’), which entered into force on 20 July 2016, the European Commission initiated an anti-dumping investigation on 14 October 2020 concerning imports of birch plywood originating in Russia. It published a notice of initiation in the Official Journal of the European Union (OJ 2020 C 342, p. 2).

4 The investigation into the dumping and injury in question concerned the period from 1 July 2019 to 30 June 2020 (‘the investigation period’). The examination of trends relevant for the assessment of that injury and the causal link covered the period from 1 January 2017 to the end of the investigation period (‘the period considered’).

5 By Implementing Regulation (EU) 2021/940 of 10 June 2021 imposing a provisional anti-dumping duty on imports of birch plywood originating in Russia (OJ 2021 L 205, p. 47; ‘the provisional regulation’), the Commission imposed a provisional anti-dumping duty of 15.7% on imports of birch plywood, consisting solely of sheets of wood, each ply not exceeding 6 mm thickness, with outer plies of wood specified in subheading 441233, with at least one outer ply of birch wood, whether or not coated, originating in Russia and falling under CN code ex 44123300 (TARIC code 4412330010) (‘the product concerned’), manufactured by the applicant.

6 On 31 August 2021, the Commission disclosed the essential facts and considerations on the basis of which it intended to impose the definitive anti-dumping measures.

7 On 8 November 2021, the Commission adopted the contested regulation, by which it imposed a definitive anti-dumping duty of 14.85% on the product concerned manufactured by the applicant.

9 The Commission, supported by the interveners, Latvijas Finieris AS and Paged Pisz sp. z o.o, contends that the Court should:

11 The first plea alleges manifest errors of assessment and infringement of Article 3(2) of the basic regulation, relating to the determination of the existence of injury, infringement of Article 4 of that regulation, relating to the definition of the Union industry, and breach of the principle of good administration, in that, in the context of the definition of the product and the Union industry, the Commission did not examine or failed to verify the observations made by EU plywood associations.

12 The second plea alleges manifest errors of assessment, infringement of Article 3 of the basic regulation, and infringement of the principle of non-discrimination, in that, in the context of determination of the relevant injury and analysis of the causal link, the Commission incorrectly disregarded post-investigation period data, refused to recognise a segmentation of the market between Russian birch plywood and birch plywood produced in the European Union, dismissed access to the raw material as a factor breaking the causal link between the injury and the imports at issue, and failed to include Belarus and Ukraine among the countries targeted by the investigation.

13 The third plea alleges manifest errors of assessment, infringement of Article 21 of the basic regulation, relating to the Union interest, and infringement of the applicant’s rights of defence, in that the imposition of anti-dumping measures on the product concerned is contrary to the interest of the Union industry. In the alternative, the fourth plea alleges a manifest error of assessment, in that, in its current form, the anti-dumping measure imposed on the product concerned is contrary to the Union interest.

The first plea in law, alleging errors of law, manifest errors of assessment and breach of the principle of good administration in the definition of the product and the Union industry

14 The applicant submits that EU plywood associations, namely the Spanish Association of Plywood Manufacturers (AEFCON), the Italian Association of producers of wood-based panels and semi-finished products for the furniture industry (ASSOPANNELLI) and the French Union of Plywood Industries (UICP) (together, ‘the EU plywood associations’), indicated that some of their members produced a wide range of plywood made, inter alia, of birch timber and of other types of wood, which competed with the product under investigation.

15 The applicant submits that, in accordance with Article 3(2) of the basic regulation, it is for the Commission to verify the data that have been made public and to carry out an objective and impartial examination of all the available positive evidence, including the statements made by the EU plywood associations.

16 However, the applicant argues that the Commission did not verify or assess which members of the EU plywood associations, including the birch plywood producer Garnica, produced goods falling within the definition of the product under investigation and which, therefore, should have been included in the composition of the Union industry. In that regard, the Commission cannot simply contact known potential producers and point to their failure to produce evidence.

17 In addition, according to the applicant, in so far as imports of birch plywood cause injury to producers of plywood made from other types of wood, those products must be regarded as interchangeable, with the result that plywood made from other types of wood should have been included in the definition of the product at issue.

18 The applicant adds that, in accordance with Article 6.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the Anti-Dumping Agreement’), set out in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3), the Commission must satisfy itself as to the accuracy of the information supplied by interested parties upon which its findings are based.

19 According to the applicant, it is apparent from recital 201 of the provisional regulation and from recital 231 of the contested regulation that, in the context of the analysis of the Union interest, the Commission accepted the statements made by the EU plywood associations concerning the existence of a certain level of substitution between birch plywood and plywood made from other types of wood, such as poplar, pine and okoumé. The applicant concludes from that that those data were verified and are reliable. They should therefore also have been acceptable for the assessment of the product scope, the definition of the Union industry and the aspects of the investigation related to that definition, which the Commission failed to do.

20 Consequently, the Commission failed to deal with that evidence in a fair and impartial manner, made manifest errors of assessment and infringed Articles 3 and 4 of the basic regulation and the principle of good administration, as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

21 The Commission, supported by the interveners, disputes the applicant’s arguments.

22 In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, it follows from the settled case-law of the Court of Justice that the EU institutions enjoy a broad discretion, with the result that the judicial review must 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 of appraisal of those facts or a misuse of powers (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 58; see, also, judgment of 22 June 2023, Vitol, C‑268/22, EU:C:2023:508, paragraph 63 and the case-law cited).

23 In that context, the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by those institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. 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 judgments of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 69 and the case-law cited, and of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 37 and the case-law cited).

24 However, as regards questions of law, the General Court carries out a comprehensive review, which includes the interpretation to be made of legal provisions on the basis of objective factors and verification of whether or not the conditions for the application of such a provision are satisfied (see, to that effect, judgments of 11 July 1985, Remia and Others v Commission, 42/84, EU:C:1985:327, paragraph 34, and of 9 November 2022, Cambodia and CRF v Commission, T‑246/19, EU:T:2022:694, paragraph 45).

25 According to Article 1(1) of the basic regulation, ‘an anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury’.

26 According to Article 3(2) of the basic regulation, a determination of injury is to be based on positive evidence and is to involve an objective examination of, first, the volume of the dumped imports and the effect of the dumped imports on prices in the EU market for like products and, second, the consequent impact of those imports on the Union industry. That provision thereby clarifies how evidence is to be obtained and the examination which the Commission must carry out as an investigating authority in order to establish the existence of injury in order to be able to impose anti-dumping duties (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 117).

27 However, the basic regulation does not define the concept of ‘positive evidence’. In the light of the literal meaning of that concept, its context and the purpose of determining injury, namely to allow for an anti-dumping duty to be imposed in respect of dumped imports, that concept refers to substantive evidence which establishes the reality of indicators of that injury in an affirmative, objective and verifiable manner. Mere assertions, conjecture or uncertain considerations therefore cannot constitute such indicators (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 118).

28 Article 4(1) of the basic regulation defines ‘Union industry’ as either ‘the Union producers as a whole of the like products’ or as ‘those of them whose collective output of the products constitutes a major proportion of the total Union production of those products’.

29 Thus, the concept of ‘Union industry’ is, by priority, defined in relation to ‘Union producers of the like products’. As follows from Article 1(4) of the basic regulation, a ‘like product’ must be understood as a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

30 The choice of the ‘product under consideration’ therefore determines the scope of the analysis of the part of the national production or, in other words, the analysis of the like products in the European Union, which, in turn, makes it possible to identify the ‘producers’ of those products, which make up the ‘Union industry’. There is therefore a link between the imported products and the Union producers benefiting from the anti-dumping duty. It is on that basis that the Commission determines whether the Union producers have suffered injury or are likely to suffer injury as a result of imports of dumped products.

31 It is in the light of those considerations that the Court will examine the applicant’s complaints relating, in the first place, to errors of law and manifest errors of assessment of the facts in the context of the examination of the statements of the EU plywood associations and, in the second place, to breach of the principle of good administration.

32 In the present case, the Commission, in recitals 13 to 17 of the provisional regulation, which are confirmed by recital 19 of the contested regulation, stated that it had selected a sample of three Union producers located in three different Member States, representing almost 40% of the estimated total production and 35% of the estimated total volume of sales of the like product in the European Union. It stated that those three companies had been selected on the basis of the largest volume of production and sales of the like product in the European Union between July 2019 and June 2020 that could reasonably be investigated, whilst geographical spread was also considered.

33 As regards the definition of the product concerned, it is apparent from recital 30 of the contested regulation, which refers to recitals 32 and 33 of the provisional regulation, that the Commission defined that product as being birch plywood consisting solely of sheets of wood, each ply not exceeding 6 mm thickness, with outer plies of wood specified under subheading 441233, with at least one outer ply of birch wood, whether or not coated, originating in Russia and falling under CN code ex 44123300 (TARIC code 4412330010). It added that birch plywood is a wood sheet material consisting of layers or strands of wood veneers pressed together with glue into large, flat sheets. According to the Commission, birch plywood is used in a wide range of applications, for example construction, packaging and furniture.

34 In recitals 34 and 35 of the provisional regulation, the Commission stated that the product concerned, the product produced and sold on the domestic market of Russia and the product produced and sold in the European Union by the Union industry had the same basic physical, chemical and technical characteristics and had the same basic uses, so that they constituted like products within the meaning of Article 1(4) of the basic regulation. In addition, in recitals 24 to 26 of the contested regulation, the Commission rejected the arguments that sought to include, in the definition of the product concerned, plywood made from other types of wood.

35 As a preliminary point, the Court notes that the applicant stated that it did not dispute the Commission’s choice as to the definition of the product concerned or the initiation of the investigation on the basis of Article 5 of the basic regulation.

36 However, the applicant submits that the Commission did not deal with the available evidence fairly and did not carry out an objective examination of that evidence, in that it rejected or ignored the statements of the EU plywood associations, which related to the production, by some of their members, including Garnica, of birch plywood, and concerned interchangeability and competition between birch plywood and plywood made from other types of wood.

37 In that regard, it is apparent from Annex B1 to the defence that, in the context of the examination of the producers supporting the complaint, the Commission sent certain Union producers a questionnaire in order to gather the necessary information to enable it, first, to verify whether the Union producers who had made the complaint were sufficiently representative and, second, to establish, where appropriate, a sample of Union producers. To that end, it drew up a list of known producers of birch plywood in the European Union. Five Italian producers and two Spanish producers, including Garnica, were mentioned on that list.

38 The Commission submits that the Spanish and Italian producers which it contacted, including the company Garnica, did not complete the questionnaire which it had sent to them, and that is not disputed by the applicant.

39 It is also apparent from the information in the file that, following the initiation of the proceeding, Garnica contacted the Commission in order to be granted the status of interested party to the anti-dumping investigation at issue; that status was granted to it.

40 The Commission therefore initially took Garnica into account when initiating the investigation, and Garnica chose not to reply to the questionnaire sent to it, preferring the status of interested party to the investigation. That fact does not appear to be such as to invalidate the method followed when the contested regulation was adopted, for the purposes of Article 4 of the basic regulation.

41 It is true that, pursuant to the basic regulation, it is for the Commission, as the investigating authority, to establish that the product in question has been dumped, that there has been injury and that there is a causal link between the dumped imports and that injury. Those elements must be established objectively, following a reliable investigation. However, no provision in that regulation confers on the Commission any power to compel the interested parties to participate in the investigation or to provide information (see judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 47 and the case-law cited), since the Commission depends on the voluntary cooperation of those parties in supplying it with the necessary information (see judgment of 3 December 2019, Yieh United Steel v Commission, T‑607/15, EU:T:2019:831, paragraph 77 and the case-law cited).

42 As is apparent from a combined reading of Articles 6, 16 and 18 of the basic regulation, when the Commission is investigating whether there is dumping and injury, it must, as a matter of priority, seek to obtain relevant information on the basis of voluntary cooperation on the part of the interested parties. To that end, it is to send anti-dumping questionnaires to those parties pursuant to Article 6(2) of that regulation. The responses to those questionnaires are an important source of information for the Commission. Under Article 6(8) of the basic regulation, which transposes Article 6.6 of the Anti-Dumping Agreement into EU law, the Commission is to verify, as far as possible, the information thus obtained before basing its findings thereon. In order to fulfil that obligation, the Commission has the option of carrying out verification visits pursuant to Article 16 of that regulation (see judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 48).

43 It also follows from the case-law that the Commission has an obligation to consider on its own initiative all the information available, since in an anti-dumping investigation, it does not act as an arbitrator whose remit is limited to making an award solely on the basis of the information and evidence provided by the parties to the investigation (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 32).

44 That obligation to make an examination on its own initiative refers only to the information to which it may itself have access which is relevant for its anti-dumping investigation. Such relevance will be dependent on, in particular, the content as well as the reliability of the information and evidence already available to it following the interested parties’ cooperation in that investigation. The Commission is required to examine with all due care all the information available to it (see judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 139 and the case-law cited).

45 However, the Commission cannot be obliged to define the Union industry by reference to the Union producers as a whole. Moreover, it cannot be obliged to include in the definition of the Union industry a producer which has decided not to cooperate in the investigation, as is the case of Garnica (see, by analogy, judgment of 16 December 2020, Changmao Biochemical Engineering v Commission, T‑541/18, not published, EU:T:2020:605, paragraph 106).

46 Nor does the applicant identify which are the other Spanish, Italian or French producers which the Commission should have taken into account for the purposes of determining and defining the Union industry.

47 The arguments and evidence put forward by the applicant do not, in themselves, and in the absence of any other evidence capable of calling into question the representativeness of the producers which the Commission took into account in the anti-dumping investigation, support the conclusion that one or more of the members of the EU plywood associations should have been included in the sample of Union producers, or that the definition and determination, in the contested regulation, of the Union industry is incorrect and does not involve an objective examination within the meaning of Article 3(2) of the basic regulation.

48 The applicant is also wrong to complain that the Commission rejected or failed to examine the statements of the EU plywood associations in the context of the definition of the product concerned, or that the Commission relied on a contradictory approach in that regard.

49 First, it is apparent from recitals 39 and 201 of the provisional regulation and from recitals 25, 26 and 231 of the contested regulation that the Commission took account of the observations made by the EU plywood associations. However, it emerges from that that plywood made from different types of wood is a different product, which does not have the same basic physical, technical and chemical characteristics as birch plywood and cannot be regarded as one and the same product.

50 Thus, in ASSOPANNELLI’s observations on the Union interest, set out in Annex B.3 to the defence, it stated that Italian producers mainly used poplar wood and, to a lesser extent, pine and birch wood. It stated that, at first glance, poplar plywood should not be seen as a direct substitute or competitor of birch plywood due to their different mechanical properties, in relation to their weight (450 kg/m³ for poplar compared with 700 kg/m³ for birch), their processing (simpler in the case of poplar) and their specific uses. It added that birch plywood and poplar plywood have a dominant position among hardwood plywood produced in Europe, although each is produced in distinct geographic areas and traditionally has different purposes or uses.

51 It is true that ASSOPANNELLI also stated that, despite those differences between birch plywood and plywood made from other types of wood, imports of low-priced birch plywood had had serious repercussions on the sales of Italian producers since 2018, in important markets. According to that association, substitution of plywood made from other types of wood with low-priced birch plywood, mainly sourced from Russia, had had unprecedented repercussions during the period between the last quarter of 2018 and the last quarter of 2020, causing a collapse of demand for poplar plywood and threatening the entire production chain in the Italian sector.

52 The Commission does not dispute that AEFCON’s observations are the same as those of ASSOPANNELLI in that regard, or that that was also the case for the UICP.

53 However, first, it cannot be considered that it is apparent from those statements that the EU plywood associations identified a sufficient degree of interchangeability between birch plywood and plywood made from other types of wood.

54 Second, in recital 39 of the provisional regulation and in recitals 25 and 26 of the contested regulation, the Commission addressed the question of the possible substitutability between birch plywood and plywood made from other types of wood. It stated, inter alia, that ‘pine, poplar, okoumé and beech plywood do not share the same basic physical, technical and chemical characteristics with birch plywood’ and that ‘the fact that in some applications, alternative products and materials could be used, with an undetermined degree of substitution capacity, does not change the nature of the physical, technical and chemical differences’ between those products and birch plywood.

55 In recital 201 of the provisional regulation and recital 231 of the contested regulation, the Commission also observed that the arguments of the EU plywood associations related to the fact that the dumped prices of birch plywood from Russia attracted demand that traditionally was for other types of wood, such as poplar, pine and okoumé, with the result that certain changes in the demand for plywood were due to a decrease in the prices of birch plywood relative to the prices of plywood made from other types of wood.

56 Contrary to what the applicant claims, recital 201 of the provisional regulation and recital 231 of the contested regulation do not contain an admission that the assertions of the EU plywood associations, relating to certain effects of substituting between birch plywood and plywood made from other types of wood, were accepted in the context of the analysis of the Union interest.

57 It is apparent both from the context of recital 201 of the provisional regulation and of recital 231 of the contested regulation, forming part of the analysis of the interest of other interested parties, and from the wording used that the Commission referred to the arguments put forward by the EU plywood associations and the applicant concerning substitution. However, it does not in any way follow that the Commission endorsed those assertions or accepted them.

58 However, the Commission interpreted them, in the context of its power to assess the facts, as meaning, first, that plywood made from other types of wood should not be seen as a direct substitute or as a competitor of birch plywood, because it had different mechanical properties, processing and a specific use and traditionally had different purposes or uses, and, second, that dumping of Russian birch plywood was the cause of certain substitution effects.

59 The Commission therefore examined the statements of the EU plywood associations, and reached the conclusion, however, following the assessment of all the relevant information, that plywood made from other types of wood differed from birch plywood and that, therefore, it should not be included in the definition of the product concerned, and thereby did not make any manifest errors of assessment of the facts or error of law.

60 It follows from the foregoing that the arguments put forward by the applicant to claim that the contested regulation infringes Article 4(1) of the basic regulation, read in the light of Article 3(2) of that regulation, and that the Commission made manifest errors of assessment of the facts by not objectively examining the statements of the EU plywood associations in the context of the definition of the Union industry and the product concerned cannot succeed.

61 The applicant’s complaints in that regard must therefore be rejected as unfounded.

62 According to the case-law, where the EU institutions have a wide power of appraisal, respect for the rights guaranteed by the EU 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 (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraph 63).

63 Thus, in the context of anti-dumping investigations, it is for the institutions to ensure respect of the principle of sound administration enshrined in Article 41(1) and (2) of the Charter, according to which every person is entitled to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies and offices of the European Union. That article of the Charter governs the administrative procedure before the Commission and the Council of the European Union in the matter of defence against dumped imports from non-EU countries (see judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 45 and the case-law cited).

64 In the present case, it follows from the analysis carried out above that the Commission carefully and impartially examined the statements of the EU plywood associations and responded to the applicant’s arguments in the context of the definition of the product concerned and of the Union industry, with the result that the Commission did not infringe the principle of good administration in that regard.

65 In the light of all of the foregoing, the first plea must be rejected as unfounded.

The second plea in law, alleging manifest errors of assessment and infringement of Article 3 of the basic regulation and of the principle of non-discrimination in the determination of the injury and the causal link at issue

66 First of all, the applicant submits that the development of prices of plywood in the European Union, as reported by the Birch Plywood Alliance, shows that, between the investigation period and May 2021, the prices of the product concerned increased from 62% to 88%. In May 2021, prices of that product were between EUR 800 and 1 500 per m³, which was far above the Union industry cost of production (EUR 692/m³) noted by the Commission during the investigation period. Plywood market stakeholders mainly attribute such a sharp increase in prices to the fast post-pandemic economic recovery and to the construction boom in the European Union, which is not temporary.

67 Thus, according to the applicant, the taking into consideration of data beyond the investigation period (‘the post-investigation period data’) would have made it possible to demonstrate an increase in the prices of birch plywood. The Commission should have taken into account that significant development of the market. The refusal to evaluate those data discredits the Commission’s overall analysis and is contrary to its previous practice.

68 Next, the applicant submits that there is no causal link between the imports of the product concerned and the Union industry’s situation. There is a segmentation between the market for birch plywood from Russia, which is standard square mass-market plywood, and the plywood produced by the Union industry, which is a more expensive product because it is specialised and intended for specific applications.

69 The 38% price difference between the sales prices of the Union industry and the weighted average export prices of the sampled Russian exporting producers confirms that market segmentation. As the plywood market is very price sensitive, that significant difference in prices also results in the Union producers being immediately and entirely foreclosed from the market. Market segmentation is therefore the only factor explaining why the Union industry still holds a third of the EU market.

70 The applicant adds that the Commission did not analyse the share of matching product codes in the overall sales of Russian producers and Union producers, which would have confirmed that the imports from Russia and the Union industry’s sales belonged to different market segments. The Commission also contradicts itself when it acknowledges a segmentation from the market for birch plywood originating in Belarus because of its lower prices and its lower quality, yet takes the view that the same does not apply to the Russian and EU plywood markets.

71 The Commission therefore infringed Article 3 of the basic regulation and made manifest errors of assessment by ignoring market segmentation in its analysis of injury indicators.

72 Lastly, the applicant submits that the Commission incorrectly failed to take into account other injury factors that had an impact on the Union industry’s situation.

73 In that regard, first, the applicant submits that the availability and prices of birch logs, as a raw material of birch plywood, had a direct impact on the Union industry’s situation. During the investigation period, the volume of imports of raw materials into the European Union increased considerably and the Union industry’s production volume decreased. Union producers were therefore heavily dependent on imports of birch logs from Russia, and the availability of logs was disrupted by weather conditions and supply delays.

74 The Union industry’s limited access to the main raw material was therefore the origin of the injury caused to Union producers and the Commission made a manifest error of assessment in reaching the opposite conclusion.

75 Second, the applicant claims that, in view of the volume and prices of imports from Belarus and Ukraine, those countries should have been among the exporting countries targeted by the Commission’s investigation.

76 It is therefore discriminatory to impose an anti-dumping measure against Russia and ignore similar indicators regarding Ukraine and Belarus.

77 The Commission, supported by the interveners, disputes the applicant’s arguments.

78 Under Article 6(1) of the basic regulation, following the initiation of proceedings, the Commission, acting in cooperation with the Member States, is to commence an investigation at EU level. Such an investigation is to cover both dumping and injury, and they are to be investigated simultaneously. For the purpose of a representative finding, an investigation period is to be selected which in the case of dumping is, normally, to cover a period of no less than six months immediately prior to the initiation of proceedings. Information relating to a period subsequent to the investigation period is, normally, not taken into account.

79 In that regard, the Court has had occasion to point out that, in relation to Article 6(1) of the basic regulation, the investigation period and the prohibition on consideration of factors relating to a subsequent period are intended to ensure that the results of the investigation are representative and reliable, by ensuring that the factors on which the determination of dumping and injury is based are not influenced by the conduct of the producers concerned following the initiation of the anti-dumping proceeding, and therefore that the definitive duty imposed as a result of the proceeding is appropriate to remedying effectively the injury caused by the dumping (see judgment of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 66 and the case-law cited).

80 By using the term ‘normally’, Article 6(1) of the basic regulation does allow exceptions to the rule against taking account of information relating to a period subsequent to the investigation period. As regards circumstances favourable to the undertakings concerned by the investigation, it has been held that the EU institutions cannot be required to incorporate in their calculations factors relating to a period subsequent to the investigation period unless such factors disclose new developments which make the proposed anti-dumping duty manifestly inappropriate. If, on the other hand, factors relating to a period subsequent to the investigation period justify, because they reflect the current conduct of the undertakings concerned, the imposition or increase of an anti-dumping duty, it is clear, on the basis of the foregoing, that the institutions are entitled, indeed obliged, to take account of them (see judgment of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 67 and the case-law cited).

81 The investigation must be carried out on the basis of as recent information as possible in order to be able to determine the anti-dumping duties appropriate for protecting the Union industry against dumping (judgments of 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 92, and of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 66).

82 In the present case, first of all, the Court notes that, in recital 202 of the contested regulation, the Commission stated that ‘the situation post-[investigation period] is of a temporary character and the result of an unexpected and rapid post-COVID recovery’. Therefore, the Commission did not consider that those temporary circumstances were such that they would make the proposed imposition of definitive anti-dumping duties inappropriate, even in the light of the development of the situation post-investigation period. It confirmed that point of view in recital 228 of the contested regulation and referred to the World Bank’s forecasts in that regard.

83 The Commission also observed, in recital 229 of the contested regulation, that, while it appeared to be generally accepted that prices would stabilise at a certain point in time, it was difficult for it to determine at which levels and how long the situation of high demand and high prices would last. In any event, the Commission, exceptionally, requested post-investigation period data about, in particular, production volume, sales volume, sales prices and profitability of the Union producers, and collected the views of interested parties, in order to assess further the impact of recent market development on the Union interest in due course.

84 It must therefore be held that, contrary to what the applicant claims, the Commission did not refuse to assess the post-investigation period data.

85 Next, the applicant has not in any way substantiated its arguments that it was clear that the competing interests of Union producers, importers and users required an analysis of the post-investigation period data in the context of the determination of the injury and Union interest or that the stakeholders in the plywood market mainly attributed that significant price increase to the speed of economic recovery post-pandemic and to the expansion of construction in the European Union, a phenomenon which is expected to last for a long time. Although the applicant refers to a price increase of around 62% to 88% between the investigation period and May 2021 and refers to the development of the prices of plywood in the European Union, as reported by the Birch Plywood Alliance, the applicant has not produced the document in question.

86 Lastly, the implementing regulations to which the applicant refers in order to establish that the Commission departed from its usual practice as regards the acceptance of post-investigation period data do not appear to be relevant, since 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 alleged previous decision-making practice (see, to that effect, judgment of 6 July 2022, Zhejiang Hangtong Machinery Manufacture and Ningbo Hi-Tech Zone Tongcheng Auto Parts v Commission, T‑278/20, EU:T:2022:417, paragraph 70 and the case-law cited).

87 The applicant has therefore not produced any evidence capable of calling into question the validity of the Commission’s analysis relating to the post-investigation period data. The applicant has failed to demonstrate that any increase in prices post-investigation period is a new development that would render the imposition of the anti-dumping duty manifestly inappropriate.

88 The complaints alleging a manifest error of assessment and infringement of Article 3 of the basic regulation in that regard must therefore be rejected.

89 According to the Court of Justice, it is apparent from the very wording of Article 3(3) of the basic regulation that the method used to determine possible price undercutting must, in principle, be applied at the level of the ‘like product’ within the meaning of Article 1(4) of that regulation, even though that product may consist of different product types falling within several market segments (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 74 and the case-law cited).

90 Accordingly, the basic regulation does not, in principle, impose any obligation on the Commission to carry out an analysis of the existence of price undercutting at a level other than that of the like product (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 75).

91 However, since, under Article 3(2) of the basic regulation, the Commission is required to carry out an ‘objective examination’ of the effect of the dumped imports on prices in the Union industry for like products, that institution is required to take account, in its analysis of price undercutting, of all the relevant positive evidence, including, where applicable, evidence relating to the various market segments of the product under consideration (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 77).

92 Therefore, in order to ensure that the analysis of price undercutting is objective, the Commission may, in certain circumstances, be required to carry out such an analysis at the level of the market segments of the product in question, even though the broad discretion enjoyed by that institution, to determine, inter alia, the existence of injury, extends at the very least to decisions on the choice of method of analysis, to the data and evidence to be gathered, to the method of calculation to be used in order to determine the undercutting margin and to the interpretation and evaluation of the data gathered (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 78).

93 Such circumstances include the existence of a situation characterised by the fact that the imports subject to the anti-dumping investigation were overwhelmingly concentrated in one of the market segments relating to the product in question. In such a situation of particularly marked segmentation of the imports concerned, Article 3 of the basic regulation does not preclude the EU institutions from assessing injury separately at the level of the segment concerned, provided, however, that the like product as a whole is duly taken into account (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 79 and 80).

94 It has also already been held that an assessment by segment may be justified where the products covered by the investigation are not interchangeable and where one or more segments are more likely to be concerned than others by the dumped imports. By contrast, such an assessment by segment is not required where the products are sufficiently interchangeable. It is only where the results prove to be distorted, for one reason or another, that a segmented analysis is justified for products which are nevertheless interchangeable. In such a case, it is for the interested party to adduce specific evidence to substantiate its assertion that different products are not sufficiently interchangeable or that failure to undertake a segmented analysis for sufficiently interchangeable products would lead, in the instant case, to distorted results (see, to that effect, judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, EU:T:2021:278, paragraphs 377 to 379 and the case-law cited).

95 Furthermore, the fact that products belong to different ranges is not sufficient, in itself, to establish that they are not interchangeable and therefore that an assessment by segment may be undertaken, since products belonging to different ranges can have identical functions or satisfy the same needs (see, to that effect, judgment of 10 March 1992, Sanyo Electric v Council, C‑177/87, EU:C:1992:111, paragraph 12).

96 In the present case, the Court considers that the applicant has not adduced sufficient evidence to demonstrate that EU birch plywood and Russian birch plywood are not interchangeable and in competition with each other.

97 First of all, the applicant has not in any way substantiated its assertions that the plywood market is very price-sensitive with the result that the significant difference between Russian prices and EU prices would, in the event of competition between the Union industry and imports from Russia, result in the Union producers being foreclosed from the market. Nor has it adduced convincing evidence in support of the claims that Russian exporters normally sell standard mass-market products, including low-end niche square plywood, which is cheaper than specialised products intended for specific applications sold by Union producers, or that market segmentation is the only factor capable of explaining why the Union industry still holds a third of the EU market despite a 38% price difference between Russian birch plywood and EU birch plywood.

98 It must also be stated that the applicant thereby acknowledges that low-end square birch plywood is not the only plywood produced by the Russian exporting producers.

99 Next, the applicant merely makes assertions, stating that an objective assessment by the Commission would have confirmed that the imports from Russia and the Union industry sales belong to different market segments and are not a primary source of competition between Russian and Union producers. The applicant does not, however, indicate on which elements or documents the Commission should have relied in order to carry out such an assessment and to reach such a conclusion.

100 Lastly, as regards imports from Belarus, the applicant merely claims that there is a contradiction with the Commission’s decision not to recognise a market segmentation. However, the applicant does not dispute the Commission’s explanation, set out in recital 172 of the contested regulation, that the price difference between Russian birch plywood and Belarusian birch plywood was due to technological constraints in Belarus, which can produce only a very specific and lower quality birch plywood, whereas imports from Russia concern a wider range of products and higher quality birch plywood.

101 The applicant’s unsubstantiated assertions therefore do not make it possible to determine to what extent the Commission erred in law or made an error in the substantive assessment of the facts by failing to segment the Russian birch plywood market and the EU market.

102 Accordingly, the applicant has not demonstrated that the Commission made a manifest error of assessment of the facts or infringed Article 3 of the basic regulation, with the result that the applicant’s complaints in that regard must be rejected as unfounded.

103 Article 3(7) of the basic regulation provides that known factors other than the dumped imports which are injuring the Union industry at the same time must also be examined in order to ensure that injury caused by those factors is not attributed to the dumped imports pursuant to Article 3(6) which provides that it must be demonstrated, from all the relevant evidence presented, that the dumped imports are causing material injury to the Union industry (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 33 and the case-law cited).

104 In determining injury, the institutions of the European Union are under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of Union producers themselves (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 35 and the case-law cited).

105 In that regard it is for the EU institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Union industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 36 and the case-law cited).

106 However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the Union industry can consequently be established (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 37 and the case-law cited).

107 Lastly, it is for the parties pleading the illegality of a regulation such as the contested regulation to adduce evidence to show the effect of factors that could have an impact on the injury caused to the Union industry. Those parties must, inter alia, demonstrate that those factors could have had such an impact that the existence of injury caused to the Union industry and of the causal link between that injury and the dumped imports was no longer reliable (see, to that effect, judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 28).

108 In the present case, the Commission analysed the stock levels of the sampled Union producers during the period considered. In recital 154 of the provisional regulation, to which recital 184 of the contested regulation refers, the Commission noted that access to the main raw material, birch wood logs, did not explain the injury because Union producers had sufficient access to supplies in that regard. Thus, Table 9 of the provisional regulation shows that stocks increased from 30 894 m³in 2017 to 37 685 m³ during the investigation period, that is to say an increase of 22% during the period considered. The biggest increase of 41% took place between 2017 and 2018, with stocks reaching their maximum level in 2018.

109 The Commission added that, thereafter, the Union industry succeeded to decrease its stocks by 25% in 2019 by adjusting its production, but that the stocks increased again from 2019 to the investigation period by 6% due to the continued decrease of Union sales. The closing stocks as a percentage of production increased from 3.1% in 2017 to 4.4% during the investigation period. According to the Commission, the increase in stocks therefore showed that the problem was not due to production but due to marketing, so that the fall in production during the period considered was not linked to the availability of wood.

110 In support of its assertions, the applicant produces, in the application, a table relating to Russian exports of wood for plywood, from which it is apparent that imports of that raw material into the European Union increased in 2020, as compared with 2019, and refers in that regard to Annex A.3 to the application. The Court notes that the table in question is not mentioned in the latter annex. The title of the table appears, however, in Annex A.6 to the application, but the information which that table is supposed to reproduce is not set out in it, for reasons of confidentiality. Nor does the applicant indicate, in that table, the source of that information.

111 Furthermore, the applicant has not explained to what extent a possible increase in imports of raw material from Russia into the European Union would call into question the Commission’s findings that, during the investigation period, although stocks of the raw material increased, the Union industry had become loss-making, with the result that the problem related not to the production of the plywood but to its marketing.

112 Moreover, the applicant does not dispute the Commission’s examination of the development of the Union industry’s stocks or that those stocks increased during the period considered. First, it is apparent from the wording of recital 154 of the provisional regulation and from recital 184 of the contested regulation that it was on that basis that the Commission considered that access to the raw material did not explain the injury. Second, it does not appear to follow from the provisional regulation or from the contested regulation that the Commission’s conclusion relating to sufficient access to the main raw material related only to that material originating exclusively in the European Union.

113 The applicant has therefore failed to adduce sufficient evidence to demonstrate that access to the raw materials in the European Union is likely to have an effect on the injury caused to the Union industry, or to break the causal link between that injury and the imports at issue.

114 As regards the applicant’s argument relating to prices, it is based on the premiss of a segmentation between the Russian birch plywood market and the birch plywood market in the European Union. As follows from the analysis carried out above, the applicant’s complaints in that regard must be rejected.

115 Therefore, it must be concluded that the applicant has failed to demonstrate that the Commission made a manifest error of assessment of the facts or that it infringed Article 3 of the basic regulation in concluding that access to the raw material did not explain the injury caused to the Union industry. The applicant’s complaints in that regard must therefore be rejected as unfounded.

116 Without it even being necessary to examine whether the Ukrainian and Belarusian imports are in comparable situations, it is sufficient to recall that, according to settled case-law, the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his or her claim, on an unlawful act committed in favour of a third party. The applicant’s line of argument, which relies entirely on the fact that an investigation should also have been conducted into other imports, seeks to do just that. The principle of equal treatment does not therefore apply in the present case and the failure to open an investigation into other possible sources of dumping cannot affect the lawfulness of the contested regulation (see, to that effect, judgments of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 42, and of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 110).

117 That complaint must therefore also be rejected, as must, therefore, the second plea in its entirety.

The third and fourth pleas in law, alleging manifest errors of assessment, an error of law and infringement of the rights of the defence as regards the imposition of anti-dumping measures contrary to the Union interest

118 Primarily, the applicant submits that the anti-dumping measure adopted against the product concerned is contrary to the Union interest.

119 First of all, the applicant claims that any anti-dumping measure will likely limit imports of the product concerned below market balance and that future imports from Russia will decrease overall by 50%. Producers in Belarus and Ukraine would not be able to replace Russian imports and meet demand from EU users, which would be detrimental to many users and independent importers in the European Union. In addition, in the medium to long term, the market would find a new balance and consumption would have to move towards lower quality plywood with a higher carbon footprint, such as an alternative production from China, Indonesia and Brazil.

120 Next, according to the applicant, the anti-dumping measures in their current form and level are likely to encourage the Union industry to expand its production and increase imports of raw materials. Such an increase in demand is likely not to be met by Russia, which could introduce temporary export restrictions.

121 Lastly, the applicant submits that the Commission’s analysis of the users’ interest is limited and superficial. The Commission considered only one reply to the questionnaire sent to users, despite having received others, and largely relied on an impact assessment of an anti-dumping duty on imports of the product concerned which is inadmissible because no proper open version was provided. At the very least, the Commission should withdraw that document from the file, in accordance with Article 19(3) of the basic regulation, and conduct a new investigation. The applicant adds that the findings in the contested regulation could have been different if such an open version had been provided and if interested parties had had an opportunity to comment on it.

122 The Commission therefore made manifest errors of assessment, infringed Article 21 of the basic regulation and infringed the applicant’s rights of defence.

123 In the alternative, the applicant submits that, if the Court finds that the contested regulation should be upheld, the Commission made a manifest error of assessment by imposing the anti-dumping measure in its current form, which is the most restrictive, when it could have adopted an anti-dumping measure in the form of a variable duty, based on an ad valorem duty capped by a minimum import price (‘MIP’).

124 The Commission, supported by the interveners, disputes the applicant’s arguments.

125 The Court notes that, according to the case-law, where the amount of the anti-dumping duty has been established, it is also necessary to assess whether the imposition of that duty is justified in the Union interest (see judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 67 and the case-law cited).

126 In that regard, Article 21(1) of the basic regulation requires the institutions of the Union, which are called upon to determine whether it is in the Union interest to adopt or to extend anti-dumping measures, to appreciate all the interests at stake taken as a whole, including the interests of the national industry and users and consumers, paying particular attention to the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition. Such a determination may be made only if all the parties have been given the opportunity to make their views known pursuant to Article 21(2) of that regulation (see judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 68 and the case-law cited).

127 In the present case, although the applicant argues that the anti-dumping measures at issue are contrary to the interest of many EU users, Union producers and unrelated importers, its arguments are not sufficiently substantiated.

128 The applicant has not adduced any convincing evidence in support of the claims that future imports from Russia would have to fall by 50% or that the Russian Government might introduce temporary export restrictions in the form of quotas. Nor has the applicant explained why the Union industry would be expected to cover its entire own consumption or why it could only add the production of Belarus or Ukraine.

129 The same is true of the applicant’s assertions concerning the fact that, in the medium to long term, consumption in the European Union would have to move towards lower quality types of plywood or materials with a higher carbon footprint, originating in China, Indonesia or Brazil, or that the elasticity of demand would not allow the increased costs resulting from the anti-dumping duties to be passed on effectively to end users.

130 Moreover, even if sales of the product concerned actually diminish, it does not follow that the measures at issue are excessive or deprive exporters of access to the EU market.

131 It must also be stated that the Commission examined those issues in the provisional regulation and in the contested regulation.

132 Thus, in response to the argument relating to the risk of retaliation by the Russian Government and likely restrictions on exports of raw materials, the Commission stated, in recital 213 of the contested regulation, that it did not have any evidence to show that the Russian Government intended to take retaliatory measures following the present proceeding.

133 In examining the alleged lack of EU production capacity to meet demand in the European Union and the continuation of Russian imports, the Commission stated, in recitals 214, 224 and 234 of the contested regulation, that the objective of the measures was not to block the imports of Russian products, but to establish a level playing field to allow the continuation of the sourcing of birch plywood from Russia at fair prices.

134 The Commission also stated, in essence, in recitals 224 and 225 of the contested regulation and in recitals 185 to 187 and 202 of the provisional regulation, to which reference is made in recitals 217, 224, 225 and 232 of the contested regulation, that the Union industry was not required to meet fully Union demand, that consumers could continue to source supplies from Russian producers and from other third countries, such as Ukraine and Belarus, and that it had not been demonstrated that, if imports from Russia were to be replaced by imports from another third country, that other country would have been China or that the production of other types of wood would have been less sustainable than production of Russian birch.

135 The Commission concluded, in recitals 215, 219 and 221 of the contested regulation, which refer to recitals 179 to 182, 189, 190, 194 and 195 of the provisional regulation, that the imposition of the measures at issue would be in the interest of the Union industry, that the possible negative impact of the measures at issue on certain unrelated importers or users should not be significant overall and should not outweigh the measures’ positive effect on Union producers. It added, in recital 236 of the contested regulation, which refers to recital 204 of the provisional regulation, that the imposition of definitive measures would clearly not be contrary to the Union interest under Article 21 of the basic regulation, and that there were no compelling reasons why it was not in the Union interest to impose measures on imports of the product concerned.

136 It has already been held that anti-dumping measures, as a result of both their subject matter and desired effect, must permit competition to be restored in a given market by seeking to eliminate the distortions to which that market is subject and which result from dumping practices (judgment of 30 April 2015, VTZ and Others v Council, T‑432/12, not published, EU:T:2015:248, paragraph 167).

137 It is therefore, in principle, contrary to the purposes of the anti-dumping legislation that, having established the existence or likelihood of the continuation or recurrence of dumping causing injury, the institutions should refrain from imposing or maintaining anti-dumping duties, in order to ensure that access of the product concerned to the EU market is not restricted in any way. Such an option risks restricting competition on that market by providing an additional benefit to exporters selling dumped products, which could allow them to oust Union producers.

138 The Court also notes that the requirements stemming from the right to a fair hearing must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular, the undertakings concerned should have been 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 27 June 1991, Al-Jubail Fertilizer v Council, C‑49/88, EU:C:1991:276, paragraphs 15 and 17).

139 The applicant cannot be required to demonstrate that the institutions’ decision would have been different, but simply that such a possibility cannot be totally ruled out, since it would have been better able to defend itself had there been no procedural error thus in fact affecting the rights of the defence (see judgment of 14 December 2022, PT Ciliandra Perkasa v Commission, T‑138/20, not published, EU:T:2022:810, paragraph 224 and the case-law cited).

140 In other words, the existence of an irregularity relating to the rights of the defence can result in the annulment of the measure in question provided that there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the rights of the defence (see judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission, C‑718/20 P, EU:C:2022:362, paragraph 49 and the case-law cited).

141 Furthermore, pursuant to Article 19(1) of the basic regulation, any information which is by nature confidential or which is provided on a confidential basis by parties to an investigation is to be treated as such by the authorities, if good cause is shown. Article 19(2) of that regulation provides, inter alia, that interested parties providing confidential information are required to furnish non-confidential summaries thereof. According to Article 19(3) of that regulation, if it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.

142 The wording of Article 19(3) of the basic regulation therefore gives the Commission only the possibility of disregarding confidential information of which no non-confidential summary is available. The aim of Article 19 of the basic regulation is to protect not only the business secrets but also the defence rights of the other parties to the anti-dumping proceeding. That, as the case-law shows, implies that, in an anti-dumping proceeding, irregularities in the Commission’s communication of non-confidential summaries cannot constitute an infringement of procedural rights justifying annulment of the regulation fixing the anti-dumping duties unless the person concerned did not have sufficient knowledge of the essential content of the document or documents in question and was therefore not able validly to express his or her point of view on their accuracy or relevance (see judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraphs 130 and 131 and the case-law cited).

143 Therefore, the Commission’s use of information of which a non-confidential summary has been provided may be relied on, as a ground for annulment of an anti-dumping measure, by parties to an anti-dumping proceeding, if they are able to demonstrate that the use of that information constituted an infringement of their rights of defence, in the sense that they were not able properly to express their point of view on the accuracy or relevance of that information and that it cannot be entirely ruled out that, had it not been for the irregularity, the outcome of the administrative procedure might have been different.

144 In the present case, the Court notes that, at the stage of the provisional regulation, the Commission stated that 13 users had made themselves known, that 9 of them had submitted comments or replies to the questionnaire and that the Commission had initiated a procedure for supplementary information vis-à-vis most of the users who had replied to the questionnaire, since they had not, with the exception of one company, provided versions which could be consulted by the interested parties. In the contested regulation, it stated that it had carried out an assessment of the Union interest, including the interest of users, ‘based on available information, including importers and users questionnaires as well as information provided by interested parties’.

145 The Commission therefore requested, in accordance with Article 21 of the basic regulation, the comments of all the stakeholders likely to be concerned by anti-dumping measures. It relied on those comments in order to state, in recital 194 of the provisional regulation and in recital 221 of the contested regulation, that ‘the imposition of measures [would] likely have a different impact across users, depending on the share of birch plywood costs in the total costs for that sector and the ability to pass on costs to downstream consumers’.

146 As regards the impact assessment report, in recitals 194 and 195 of the provisional regulation, the Commission stated that ‘the complainant submitted an independent study analysing the expected impact of measures on users, based on theoretical duties of 20% to 30%’. It was apparent from those documents that ‘the main sectors using birch plywood in the European Union are, by consumption: construction (39%), transport (27%), furniture (10%) and packaging (8%)’, that, ‘based on the available information, for the sectors capturing the majority of the birch plywood consumption, the impact of the measures was provisionally assessed to be limited or negligible’, that ‘the sectors where the duties may have the largest impact are packaging and parquet producers’, that ‘however, even in these sectors, the impact of measures is limited’, that ‘for the packaging sector, the estimated impact is around 2% to 4% in the cost structure, which can be expected to be passed on to customers’, and that, ‘as far as the parquet and flooring sector is concerned, birch plywood has various substitutes, like other types of wood and alternative materials, which is another reason why the impact of possibly slightly higher cost of birch plywood is expected to be limited’. In the light of those explanations, the Commission concluded, in recital 196 of the provisional regulation and in recital 221 of the contested regulation, that ‘any negative impact of measures on users is expected not to outweigh the positive effect of measures on Union producers’.

147 The observations submitted by the Woodstock Consortium, which the Commission states are the public version, to which the applicant does not deny having had access, provide a more detailed summary of the main conclusions of the impact assessment, relating to the construction, transport, furniture and packaging sectors.

148 The applicant did not request access to the confidential version of the impact assessment report. It merely submits that the public version of that report was inadequate and that the findings in the contested regulation might have been different if the Commission had provided an appropriate public version of the report and if it had given interested parties the opportunity to submit their comments in that regard. Those assertions do not satisfy the need to demonstrate the error of assessment which allegedly vitiated the Commission’s reasoning, having taken account of confidential data, since the applicant has not in any way set out the reasons why the public version of that report was inadequate; nor has the applicant set out the facts to be proved.

149 Accordingly, the applicant’s complaints alleging infringement of Article 21 of the basic regulation and manifest errors of assessment must be rejected, as must those alleging infringement of the rights of the defence.

150 It follows from the foregoing that the third plea must be rejected as unfounded.

151 Article 14(1) of the basic regulation provides, inter alia, that provisional or definitive anti-dumping duties are to be imposed by regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties.

152 That provision leaves the EU institutions a wide discretion to determine, in each case, not only the form and rate of those duties, but also the other criteria which the Member States must use in collecting the duties in question (see, by analogy, judgment of 27 March 1990, Cartorobica, C‑189/88, EU:C:1990:137, paragraph 25, and of 28 September 1995, Ferchimex v Council, T‑164/94, EU:T:1995:173, paragraph 141).

153 It follows that review by the EU judicature relates to whether the measure adopted by the Commission, in the present case a definitive anti-dumping duty of 14.85% in the form of an ad valorem duty, is manifestly inappropriate having regard to the objective pursued.

154 In recitals 237 and 238 of the contested regulation, the Commission stated that, following provisional disclosure, some parties claimed that, should measures be imposed, they should be set in the form of a MIP since it would balance interest of different parties, would prevent a shortage of the product concerned, and would safeguard the competition in the market. Similarly, it was claimed that the MIP should take into account the price difference between square and rectangular-shaped plywood. In response, the Commission considered that, as the product concerned was produced and sold in a wide variety of product types, the imposition of measures in the form of a MIP was neither practicable nor would it accurately reflect the level of dumping.

155 Before the Court, the applicant argues that a variable duty, based on an ad valorem duty capped by a MIP, would contribute to a better balance between the interests of Union producers, importers and users.

156 It is true that it has already been held that it is generally acknowledged that a variable duty is more favourable to the exporters and importers in question than a fixed duty or an ad valorem duty. In certain cases, a variable duty enables payment of anti-dumping duties to be avoided altogether (see judgment of 29 September 2000, International Potash Company v Council, T‑87/98, EU:T:2000:221, paragraph 41 and the case-law cited).

157 However, before imposing anti-dumping duties, the EU institutions balance the various interests at stake. They take into account not only the interests of the importers and exporters being investigated, but also the interests of the Union industry, and, as is apparent from Article 21 of the basic regulation, the interests of users and consumers. The fact that various interests are to be balanced is conveyed by the wording of Article 9(4) of that regulation, which provides that the amount of the anti-dumping duty is not to exceed the margin of dumping established and should be less than that margin if such lesser duty would be adequate to remove the injury to the Union industry (see, to that effect, judgment of 29 September 2000, International Potash Company v Council, T‑87/98, EU:T:2000:221, paragraph 42).

158 The applicant has not in any way explained how the interests of the various stakeholders on the market in question differ to the point of requiring the Commission to apply an advanced form of variable duty combining a MIP and an ad valorem or fixed duty. The applicant’s line of argument is based on the premiss that the market conditions at issue endanger many interested parties in the European Union and the risk of a shortage of products, which require an appropriate strategic response; that is not substantiated and has not been demonstrated, as follows from the analysis carried out above.

159 Moreover, the applicant has not claimed that the duty in question exceeded the dumping margin or that that duty was, at the time of its adoption, higher than was necessary to remove the injury, within the meaning of Article 9(4) of the basic regulation.

160 Therefore, the applicant has not demonstrated to the requisite legal standard that the Commission made a manifest error of assessment in imposing the measure at issue in its current form which would be contrary to the Union interest.

161 The fourth plea must therefore be rejected as unfounded and, consequently, the action must be dismissed in its entirety.

162 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.

163 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and the interveners.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Vyatsky Plywood Mill v Commission (Dumping - Imports of birch plywood originating in Russia - Judgment) [2024] EUECJ T-32/22 (11 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T3222.html Cite as: [2024] EUECJ T-32/22, EU:T:2024:617, ECLI:EU:T:2024:617

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