Case C‑61/16 P
European Bicycle Manufacturers Association (EBMA)
v
Giant (China) Co. Ltd
(Appeal — Dumping — Regulation (EU) No 502/2013 — Imports of bicycles originating in China — Regulation (EC) No 1225/2009 — Article 18(1) — Cooperation — Definition of ‘necessary information’ — Article 9(5) — Request for individual treatment — Risk of circumvention)
Summary — Judgment of the Court (Fourth Chamber), 14 December 2017
Appeal—Grounds—Incorrect assessment of the facts and evidence—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted
(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)
Common commercial policy—Protection against dumping—Course of the investigation—Use of the information available where the undertaking refuses to cooperate—Conditions—Refusal to grant access to the necessary information—Concept of necessary information—Burden of proof for showing that information is necessary
(Council Regulation No 1225/2009, Art. 18(1))
Common commercial policy—Protection against dumping—Discretion of the institutions—Judicial review—Limits
Common commercial policy—Protection against dumping—Fixing of anti-dumping duties—Individual treatment of exporting undertakings from a non-market economy country—Refusal to impose an individual anti-dumping duty—Risk of circumvention—Burden of proof
(Council Regulation No 1225/2009, Art. 9(5))
See the text of the decision.
(see para. 33)
In interpreting Article 18(1) of Regulation 1225/2009 on protection against dumped imports from countries not members of the European Community, which provides that the EU institutions may rely on the facts available to make provisional or final, affirmative or negative, findings where any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided in the regulation, it is necessary, in order to determine the scope of that provision, to take account of its wording, context and objectives. In that regard, the term ‘necessary information’ refers to information held by the interested parties which the EU institutions ask them to provide in order to enable them to reach the appropriate findings in an anti-dumping investigation.
Moreover as the burden lies with the EU institutions to prove that the product concerned has been dumped, that there has been injury and that there is a causal link between the dumped imports and the injury, it also falls to those institutions to establish that certain information is necessary for the purpose of reaching the appropriate conclusions in the anti-dumping investigation.
(see paras 45, 46, 57, 65)
See the text of the decision.
(see paras 68, 69)
Pursuant to Article 9(5) of Regulation 1225/2009 on protection against dumped imports from countries not members of the European Community, an individual anti-dumping duty may be specified for exporters which can demonstrate, on the basis of properly substantiated claims that, inter alia, State interference is not such as to permit circumvention of anti-dumping measures. It follows that the absence of a risk of circumvention, in the same way as the existence of such a risk, cannot be presumed. Accordingly, even though the risk of circumvention of anti-dumping measures is higher in the case of related exporters on which different anti-dumping duties might be imposed, the EU institutions are nonetheless required to demonstrate that, in the light of the particular circumstances of the investigation concerned, there is a genuine risk of circumvention.
(see paras 84, 86)