21 June 2023 (*1)

(Dumping – Extension of the definitive anti-dumping duty imposed on imports of certain aluminium foil originating in China to imports of certain aluminium foil consigned from Thailand – Anti-circumvention investigation – Circumvention – Article 13 of Regulation (EU) 2016/1036 – Sufficient evidence – Manifest error of assessment – Obligation to state reasons)

In Case T‑748/21,

Dingheng New Materials Co., Ltd, established in Rayong (Thailand),

Thai Ding Li New Materials Co., Ltd, established in Rayong,

represented by G. Coppo and G. Pregno, lawyers,

applicants,

European Commission, represented by P. Němečková, acting as Agent,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed of R. da Silva Passos, President, S. Gervasoni and I. Reine (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment (*1)

Forms of order sought

The applicants claims that the Court should:

The applicants claims that the Court should:

–annul the contested regulation in so far as it concerns them;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action as unfounded;

–order the applicants to pay the costs.

Law

First plea: infringement of the basic regulation by the initiation of the anti-circumvention investigation

Preliminary observations

In addition, the third subparagraph of Article 13(3) of the basic regulation provides that ‘the relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article’. It follows that Article 5 of that regulation, entitled ‘Initiation of proceedings’, applies in the present case.

Thus, Article 5(3) of the basic regulation provides that the Commission must, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint to determine whether there is sufficient evidence to justify the initiation of an investigation. Moreover, certain procedural constraints imposed on the Commission under that regulation may preclude it from carrying out exhaustive checks and analyses of the information provided in the complaint. Thus, under Article 5(9) of that regulation, the Commission has only 45 days as from the lodging of the complaint to decide to initiate the investigation. That time limit may not be sufficient to carry out full checks and analyses of all the information contained in the complaint. Such a duty of checking and analysis would also risk making the complaint public even before the notice of initiation is published, which would infringe Article 5(5) of the basic regulation (judgments of15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraphs 96 and 97, and of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 86).

In that regard, it should be noted that the quantity and quality of the evidence necessary to meet the criteria of the sufficiency of the evidence for the purpose of initiating an investigation is different from that which is necessary for the purpose of a final determination of whether there is circumvention. Therefore, evidence which is insufficient in quantity or quality to justify a final determination of circumvention may nevertheless be sufficient to justify the initiation of an investigation (see, to that effect, judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 98). Thus, Article 5(3) of the basic regulation does not require the Commission to analyse all the information available, which would be for the investigation under Article 6 of the basic regulation (judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraphs 94 and 95). It is not a requirement that the information provided in the complaint constitute irrefutable evidence of the existence of the facts alleged. Moreover, the sufficiency of the information depends on the circumstances of each case and must, consequently, be assessed on a case-by-case basis. Nor is it a requirement that the complaint contain an analysis of the information (judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraphs 94 and 95).

The lack of sufficient evidence relating to the change in the pattern of trade

It should be borne in mind that the definition of ‘circumvention’ is set out in Article 13(1) of the basic regulation in very general terms, which leaves a broad discretion to the EU institutions, since no details of the nature of and detailed arrangements for the ‘change in the pattern of trade between third countries and the Union’ are given (judgments of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 48, and of 8 June 2022, Guangxi Xin Fu Yuan v Commission, T‑144/20, not published, EU:T:2022:346, paragraph 145).

In the present case, in the first place, it is apparent from the complaint that, in 2017, which corresponds to the year of adoption of Implementing Regulation 2017/271, by which the definitive anti-dumping duty was extended to all the products concerned, exports to the European Union from Thailand amounted to a total quantity of 375 tonnes, as opposed to the 25 tonnes exported from that third country in 2016. Moreover, in 2018, the volume of those exports rose to 3417 tonnes to reach an overall level of 7240 tonnes in 2019.

The applicants do not dispute the truth of those data. They do submit, however, that they relate to CN codes 76071119 and 76071190 of the Combined Nomenclature, which concern a wide variety of products not limited to the products concerned.

It is true that CN codes 76071119 and 76071190 of the Combined Nomenclature include, in addition to the products concerned, other products such as aluminium converter foil.

However, the applicants admit, without providing further details, that CN code 76071119 of the Combined Nomenclature covers the most representative product types. Moreover, in view of the considerable increase, in the space of three years, in the volume of imports of aluminium foil, including those intended for household use and processing, that volume being 289 times higher since the extension of the definitive anti-dumping duty in 2017, the Commission did not make a manifest error of assessment in finding that there was sufficient evidence relating to the change in the pattern of trade, or at least a risk of circumvention in relation to the products concerned.

First, in view of the increase in imports of aluminium foil from Thailand, it was likely that the proportion of the products concerned in that increase was equally large. The applicants have not claimed that those imports related almost solely to products different from the products concerned, such as aluminium converter foil. Second, as is apparent from the case-law cited in paragraph 34 above, the imposition of an anti-dumping duty may be based on a risk of circumvention where such a risk is genuine and is not merely hypothetical. In the light of the case-law cited in paragraph 31 above, those principles apply a fortiori where an anti-circumvention investigation is initiated. In view of the foregoing, the Commission could find, at the very least, that such a risk was present at the time of the initiation of that investigation.

In the second place, the complaint contains statistics relating to imports into Thailand of the raw material from China, namely foil stock and jumbo rolls, which are used for the production of the products concerned in Thailand and which contribute to the export of the products concerned to the European Union. First, it is apparent that, between 2016, the year of adoption of Implementing Regulation 2016/865, by which the anti-circumvention investigation was initiated in respect of the products concerned subject to registration, and 2019, imports of aluminium foil falling within HS code 760711 of the Harmonised System increased annually by between almost 9% and 32%. Second, between 2015 and 2018, imports of aluminium alloy plates, sheets and strip falling within HS code 760612 of the Harmonised System from China into Thailand increased by between 13% and 18% and then decreased by 22% in 2019.

Those statistics support the point that there was a considerable increase in exports of the products concerned from Thailand to the Union. The Commission could rely on those data in order to find that imports from China into Thailand were likely to support the production of the products concerned in Thailand so that they could be exported to the European Union, in circumvention of the anti-dumping duty imposed on exports of the products concerned from China. Even though it is true that HS codes 760612 and 760711 of the Harmonised System include a range of products broader than only the products concerned, by analogy with the reasons set out in paragraph 48 above, that does not mean that there is a manifest error of assessment on the part of the Commission for the purposes of initiating the anti-circumvention investigation. Such an error is even less proven since, in accordance with the case-law cited in paragraph 31 above, it is not required that the information provided in the complaint constitute irrefutable proof of the existence of the facts alleged.

Moreover, it is clear that, in the application, the applicants do not dispute the Commission’s findings relating to assembly operations, which means that nor do they deny that there are in fact imports of raw material into Thailand from China.

It was only at the stage of the reply that the applicants began to challenge the existence of assembly operations.

However, under Article 84(1) of the General Court’s Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

Furthermore, according to the case-law, Article 84(1) of the Rules of Procedure is also applicable to complaints or arguments which do not amplify pleas in law or complaints set out in the application (see, to that effect, judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 59 and the case-law cited).

Lastly, it should be noted that the Commission’s findings relating to assembly operations are set out in recital 9 of the initiation regulation and in recitals 42 and 79 to 82 of the contested regulation, to which reference was also made in the complaint.

Consequently, the applicants were fully in a position to challenge those findings in the application.

As a result, the applicants’ arguments relating to the existence of assembly operations, relied on in the reply, which do not amplify the present complaint put forward in the application, are inadmissible pursuant to Article 84 of the Rules of Procedure.

In any event, the applicants merely state in the reply that, in their Thai facilities, they processed foil stock into aluminium foil. There is therefore no ‘assembly’ of separate parts to create a new single product. However, they do not substantiate their claims in any way.

It follows that the applicants have not validly called into question the facts relating to the assembly of the products concerned and, consequently, to imports of raw material into Thailand from China.

61

In the third place, it should be borne in mind that Article 13(1) of the basic regulation makes no reference to any requirement as to the replacement of imports originating in countries subject to the anti-dumping duty by those from circumvention countries as a condition necessary for a finding of circumvention (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 47).

62

Consequently, the applicants cannot validly argue that it was not demonstrated that exports from the People’s Republic of China into the European Union had been replaced by exports from Thailand into the European Union.

63

In the fourth place, as regards the allegedly outdated statistics in the complaint, first of all, in the light of the considerations set out in paragraph 24 above, the Commission’s argument to the effect that it collected more detailed data concerning the period from 1 July 2019 to 30 June 2020 must be rejected, as it has not made out proof of this.

64

It is apparent, however, from the data in the complaint that the Commission relied on a body of consistent evidence in order to find that there was circumvention and that the change in the pattern of trade between Thailand and the European Union coincided with the initiation of the anti-circumvention investigation in 2016 and the extension of the anti-dumping duty to the products concerned originating in China in 2017. That coincidence in time constitutes significant evidence making it possible to establish a link based on logic and reason between the considerable increase in imports into the European Union from Thailand and the previous anti-circumvention investigation (see judgment of 8 June 2022, Guangxi Xin Fu Yuan v Commission, T‑144/20, not published, EU:T:2022:346, paragraph 159 and the case-law cited).

65

Furthermore, it is apparent from the complaint that, at the time of initiation of the anti-circumvention investigation, the information available to the Commission appeared to suggest that there was a significant amount of assembly operations of the product concerned in Thailand (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 53).

66

Therefore, the Commission could rely solely on the information contained in the complaint for the purpose of initiating the anti-circumvention investigation.

67

In those circumstances, even though, as concluded in paragraph 63 above, the Commission has not demonstrated that it collected more detailed data concerning the period between 1 July 2019 and 30 June 2020, in accordance with the principles cited in paragraph 22 above, it was not required to do so, since the complaint contained sufficient evidence, without its being necessary to gather such more detailed data.

68

Furthermore, it should be noted that, in the context of a challenge to the Commission’s assessment, an applicant cannot merely propose its interpretation of the various economic factors, but must state the reasons why the Commission should have reached a different conclusion on the existence of circumvention on the basis of those factors (see, by analogy, judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 54). That is all the more so at the stage of the initiation of an investigation which may be justified as soon as there is a risk of circumvention in accordance with Article 5(3) of the basic regulation.

69

In the present case, first, the applicants have not challenged the findings of fact or the figures in the complaint on which the Commission relied. Second, they merely stated that the export statistics were outdated. However, they have not adduced the slightest evidence that the Commission made a manifest error of assessment in using statistics covering the period from 2015 to 2019. Nor have they provided more recent statistics to substantiate their allegations, even though they claim that they could be obtained easily by the complainant.

70

Moreover, the more recent data in Tables 1 and 2 of the general disclosure document of 24 June 2021, reproduced in recitals 44 and 48 of the contested regulation, show that, during the reporting period, from 1 July 2019 to 30 June 2020, exports of jumbo rolls from Thailand to the European Union rose, as did exports of raw materials from China to Thailand. Thus, in any event, the applicants could not have found support in those more recent statistics.

71

In the light of all the foregoing, the present complaint must be rejected.

The lack of evidence relating to the undermining of the remedial effects of the original duties

It should be noted that, in order to establish circumvention, Article 13(1) of the basic regulation refers to the maintenance of the remedial effects of the anti-dumping duty in terms of prices and/or quantities of the like product. It follows from that criterion that it is sufficient for such remedial effects to be established alternatively, either in terms of the prices of like products or in terms of the quantities of such products.

75

In the present case, it is apparent from the complaint that the allegations relating to the undermining of the remedial effects of the original duties are based not only on a line of reasoning about the prices of like products, but also on factors relating to the quantities of such products imported into the European Union from Thailand.

76

In the reply, the applicants admit that they did not raise any specific argument about the undermining of the remedial effects of the anti-dumping measures in relation to the quantities of like products. They nevertheless justify that omission by stating that it is the logical corollary of their arguments relating to the incorrect and outdated statistics provided in the complaint.

77

In that regard, first, in the light of the considerations set out in paragraphs 54 and 55 above, that argument must be rejected as out of time, since it is apparent from the complaint and from recital 10 of the initiation regulation that the anti-circumvention investigation was initiated, inter alia, because of the undermining of the remedial effects of the existing anti-dumping measures in terms of quantities as well. Hence, the applicants were in a position to put forward arguments in that regard at the stage of the application.

78

Second, under Article 76(d) of the Rules of Procedure, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. It follows from the case-law that the application must specify the nature of the grounds on which the action is based. Thus, the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst it is true that the body of the application may be supported and supplemented in the reply, that cannot make up for the absence of essential arguments in law which, in accordance with the abovementioned provision, must appear in the application. The application must specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. In order to guarantee legal certainty and the sound administration of justice, the summary of the applicant’s pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent Court to rule on the action. Thus, it is not for the Court to seek and identify the pleas on which it may consider the action to be based (see, to that effect, judgments of 14 May 1998, Mo och Domsjö v Commission, T‑352/94, EU:T:1998:103, paragraph 333, and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 110).

79

Consequently, the applicants cannot rely on a logical correlation which is not readily apparent from the application.

80

Accordingly, the applicants’ arguments relating to the undermining of the remedial effects of the anti-dumping measures in relation to quantities, put forward for the first time in the reply, even though they could have been included in the application and do not amplify the present complaint put forward in the application, must be rejected as inadmissible.

81

It follows that the present complaint is based solely on reasoning relating to the prices of like products whereas, under Article 13(1) of the basic regulation, the Commission could refer solely to the undermining of the remedial effects in terms of quantities of like products, without also being required to refer to the prices of such products.

82

Therefore, since the present complaint is formulated solely in terms of prices of the like product, it must be rejected as ineffective.

The lack of evidence of dumping

85

In the light of the conclusion set out in paragraph 24 above, the present complaint must be analysed solely in the light of the evidence and information contained in the complaint.

86

That said, as is apparent from the case-law cited in paragraph 28 above, in accordance with Article 13(1) of the basic regulation, circumvention of anti-dumping measures is established, inter alia, where there is evidence of dumping in relation to the normal value previously established for the like product.

87

As regards the determination of the normal value, it is apparent from the complaint that the demonstration of dumping was based on the data used in Implementing Regulation 2015/2384 in connection with an expiry review.

88

It follows that the complaint took into account the normal value established previously.

89

In that regard, first, it should be noted that, according to the case-law, where the product concerned contains several product types, as is the case here, the basic regulation does not require that the complaint provide information on all those product types. Rather, it follows from Article 13(1) and (3) of that regulation that the evidence relating to dumping of the product as a whole must be sufficient for the Commission to be able to conclude that there is sufficient evidence to justify the initiation of the investigation. Therefore, evidence relating to dumping of an insignificant subcategory of the product imported would not be sufficient in that context (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 100).

90

The applicants have not claimed that the product referred to in Implementing Regulation 2015/2384, namely aluminium foil of a thickness of not less than 0.008 mm and not more than 0.018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm, of a weight exceeding 10 kg, constitutes an insignificant subcategory of the products concerned.

91

Second, it must also be ascertained whether, in the complaint, the normal value established related to like products, namely the products concerned, in relation to the product referred to in Implementing Regulation 2015/2384, in accordance with Article 13(1) of the basic regulation.

92

Under the first subparagraph of Article 13(1) of the basic regulation, ‘anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries, of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place’.

93

In the light of the first subparagraph of Article 13(1) of the basic regulation, the products listed in paragraph 7 above, to which the initial anti-dumping duty was extended by Implementing Regulation 2017/271, must be regarded as being like the product referred to in Implementing Regulation 2015/2384.

94

It should also be borne in mind that the determination of the like product falls within the exercise of the wide discretion conferred on the institutions and is therefore subject to limited review (see judgment of 11 July 2013, Hangzhou Duralamp Electronics v Council, T‑459/07, not published, EU:T:2013:369, paragraph 71 and the case-law cited).

95

It follows that the taking into account, in the complaint, of the normal value previously established for the only product referred to in Implementing Regulation 2015/2384 is consistent with Article 13 of the basic regulation.

96

The Commission accordingly could, without making a manifest error of assessment, rely on the data contained in the complaint relating to the normal value previously established in Implementing Regulation 2015/2384.

97

As regards the determination of the export price, it is apparent from the complaint that that price was determined by reference to products falling within CN code 76071119 of the Combined Nomenclature.

98

It is true, as the applicants maintain, that the products falling within CN code 76071119 of the Combined Nomenclature cover a wide array of products which are not limited to the products concerned.

99

However, the applicants themselves acknowledge that CN code 76071119 of the Combined Nomenclature covered the most representative product types.

100

In any event, as observed in paragraphs 30 and 89 above, under Article 5(3) of the basic regulation, applicable in the present case by reason of the third subparagraph of Article 13(3) of that regulation, the Commission must determine whether there is sufficient evidence, assessed as a whole, justifying the initiation of an investigation. In the light of the considerations set out in the context of the present plea, the Commission could, without making a manifest error of assessment, conclude that the complaint contained sufficient evidence and rely on a body of consistent evidence in order to decide to initiate the anti-dumping investigation (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 52). In that regard, it should be borne in mind that, in accordance with the case-law cited in paragraph 32 above, the legal test to be applied in accordance with Article 13(3) of the basic regulation is not the accuracy and adequacy per se of the evidence, but rather its sufficiency.

101

In addition, first, according to the case-law cited in paragraph 44 above, the definition of the term ‘circumvention’ is set out in Article 13(1) of the basic regulation in very general terms which leave a broad discretion to the EU institutions. That principle must apply a fortiori in the context of the initiation of an anti-circumvention investigation provided for in Article 5(3) of that regulation.

102

Second, as has been stated in paragraphs 31, 34 and 49 above, the Commission could rely on a risk of circumvention, without its being required that the information provided in the complaint constitute irrefutable evidence of the existence of the facts alleged. An anti-dumping investigation is a process where certainty on the existence of all of the elements necessary in order to adopt a measure is reached gradually as the investigation moves forward (see, to that effect, in the context of the WTO, the Panel Report entitled ‘Mexico – Anti-dumping duties on steel pipes and tubes from Guatemala’, adopted on 8 June 2007) (WT/DS331/R, paragraph 7.22).

Consequently, the present complaint must be rejected, as must, therefore, the present plea in its entirety.

On those grounds,

hereby:

Dismisses the action;

Orders Hangzhou Dingsheng Industrial Group Co., Ltd, Dingheng New Materials Co., Ltd and Thai Ding Li New Materials Co., Ltd to bear their own costs and to pay those incurred by the European Commission.

da Silva Passos

Gervasoni

Reine

Delivered in open court in Luxembourg on 21 June 2023.

[Signatures]

*1 Language of the case: English.

1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.