19 September 2022 (*)

(Action for annulment – Commercial policy – Dumping – Imports of aluminium flat-rolled products originating in China – Definitive anti-dumping duty – Independent importer – No individual concern – Inadmissibility)

In Case T‑788/21,

TDK Foil Italy SpA,

established in Rozzano (Italy), represented by F. Di Gianni, A. Scalini and G. Pregno, lawyers,

applicant,

European Commission,

represented by G. Luengo and M. Gustafsson, acting as Agents,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed of S. Gervasoni (Rapporteur), President, L. Madise and R. Frendo, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure,

makes the following

2By its action based on Article 263 TFEU, the applicant, TDK Foil Italy SpA, seeks the annulment of Commission Implementing Regulation (EU) 2021/1784 of 8 October 2021 imposing a definitive anti-dumping duty on imports of aluminium flat-rolled products originating in the People’s Republic of China (OJ 2021 L 359, p. 6) (‘the contested regulation’), in so far as that regulation includes raw aluminium foil used to produce high-voltage anode and tab foils for aluminium electrolytic capacitors (‘raw aluminium foil’) within the scope of the anti-dumping duty.

Background to the dispute

3Following a complaint lodged by an association representing European producers of aluminium flat-rolled products (‘the product concerned’), the Commission published, on 14 August 2020, a notice of initiation of an anti-dumping proceeding concerning imports of the product concerned originating in the People’s Republic of China (OJ 2020 C 268, p. 5), pursuant to Article 5 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), as amended.

4On 12 April 2021, the Commission adopted Implementing Regulation (EU) 2021/582 imposing a provisional anti-dumping duty on imports of aluminium flat-rolled products originating in the People’s Republic of China (OJ 2021 L 124, p. 40) (‘the provisional regulation’).

5Following the adoption of the provisional regulation, the applicant and TDK Foil Hungary Components Kft submitted observations as to the definition of the product concerned in the case of aluminium flat-rolled products intended for use in aluminium electrolytic capacitors. The applicant requested that the raw aluminium foil used in the manufacture of those capacitors be excluded from payment of the anti-dumping duty.

6On 8 October 2021, the Commission adopted the contested regulation. In particular, it rejected the observations from the applicant and from TDK Foil Hungary Components. It took the view that the aluminium flat-rolled products intended for use in aluminium electrolytic capacitors came within the definition of the product concerned and shared the same basic physical, technical and chemical characteristics as other aluminium flat-rolled products.

Forms of order sought

7The applicant claims that the Court should:

–annul the contested regulation in so far as it includes raw aluminium foil within the scope of the anti-dumping duty and, in the alternative, annul Article 1(1) of that regulation to the same extent;

–order the Commission to pay the costs.

8In the plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the Court should:

–dismiss the action as inadmissible;

–order the applicant to pay the costs.

Law

9Under Article 130(1) and (7) of the Rules of Procedure, on application by the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, taking the view that it has sufficient information from the documents in the file, has decided to rule on that application without taking further steps in the proceedings.

10The Commission claims that the present action is inadmissible on the ground that the contested regulation is not of individual concern to the applicant and entails implementing measures.

11It must be recalled that the admissibility of an action brought by a natural or legal person against an act which is not addressed to that person, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that that person is recognised as having standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to that person. Secondly, such a person may institute proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to that person (see judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 29 and the case-law cited).

12In the present case, first, the contested regulation is not addressed to the applicant.

13Second, it is common ground that the contested regulation is of direct concern to the applicant. According to settled case-law, an undertaking, such as the applicant, an importer of the product subject to anti-dumping duties, is directly concerned by the regulation imposing those duties (see, to that effect, orders of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 23, and of 2 May 2022, Airoldi Metalli v Commission, T‑328/21, EU:T:2022:277, paragraph 16).

14Third, it is not disputed that the contested regulation entails implementing measures. According to equally settled case-law, regulations which impose definitive anti-dumping duties entail implementing measures with regard to importers liable to pay those duties, consisting in the communication or notification to the importer of the customs debt resulting from those duties (order of 2 May 2022, Airoldi Metalli v Commission, T‑328/21, EU:T:2022:277, paragraph 24; see also, to that effect, judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 60, and of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraphs 38 and 39).

15Consequently, it is necessary to examine whether the contested regulation is of individual concern to the applicant.

16The Commission maintains that this is not the case. It claims that the applicant is an independent importer which was not part of the sample of independent importers. The applicant, it submits, did not participate in the administrative procedure until after the provisional regulation had been published and did not provide any reply to the questionnaire. The Commission did not use any information from the applicant as regards export prices. Furthermore, the applicant is not individually concerned by reason of exceptional circumstances. It provides no evidence as to how its commercial activities are affected by the contested regulation. It does not allege difficulties in obtaining supplies from other sources, such as undertakings established in third countries. It is not the only importer of raw aluminium foil. If the applicant is mentioned several times in the contested regulation, that is because the Commission responded to its arguments, in accordance with its obligation to state reasons.

17The applicant disputes the Commission’s line of argument. It claims that it was the only importer of raw aluminium foil during the investigation period and the only entity to have submitted a request for the exclusion of that foil from the scope of the anti-dumping duty. It points out that it sought annulment of the contested regulation only in so far as it concerns that foil and it takes the view that the condition of individual concern must be assessed with regard to the particular subject matter of its action. It states that it participated actively in the administrative procedure and is mentioned in the contested regulation. In its observations on the plea of inadmissibility, it states that it is the main importer and user of raw aluminium foil in the European Union. There is no production of raw aluminium foil in the European Union and the number of manufacturers of that product internationally is limited.

18According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if the measure in respect of which annulment is sought affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (see judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 34 and the case-law cited).

19The possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that those persons must be regarded as being individually concerned by that measure, as long as it is applied by virtue of an objective legal or factual situation defined by the measure at issue (see judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 35 and the case-law cited).

20Regulations imposing anti-dumping duties are normative inasmuch as they apply generally to all traders concerned (see judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 31 and the case-law cited).

21Regulations imposing anti-dumping duties may nevertheless, in certain cases, be of individual concern to several types of traders, without prejudice to the possibility that other traders may be individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons. In the first place, those among the producers and exporters of the product in question which have been charged with engaging in dumping on the basis of information relating to their commercial activities may be individually concerned. In the second place, that may also be so in the case of importers of that product whose resale prices were taken into account for the construction of export prices and which are, therefore, concerned by findings relating to the existence of dumping. In the third place, that may also be so in the case of importers associated with exporters of the product in question, particularly where the export price has been calculated on the basis of those importers’ resale prices on the European Union market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgments of 4 February 2016, C & J. Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 59 to 62; of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraphs 32 to 35; and of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraphs 35 and 36).

22According to the case-law, the use of information from an independent and sampled importer, in combination with the same information from other independent importers also included in the sample, for the purposes of adjusting the export price where the producer-exporters exported the product concerned to the European Union via a linked company acting as an importer, is not sufficient for that independent importer to be regarded as being individually concerned by the findings as to the existence of dumping (see, to that effect, judgment of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 32; orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 37, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 42).

23In the present case, in the first place, it should be noted, with regard to the case-law referred to in paragraph 20 above, first, that the applicant is not a producer-exporter of the product concerned.

24Secondly, the Commission did not use either the applicant’s resale prices or, moreover, any other information from the applicant in order to construct the export prices.

25Thirdly, the applicant has the status of independent importer and is not associated with the producer-exporters of the product concerned.

26In those circumstances, as the Commission maintains, the applicant does not belong to any of the categories of traders identified by the case-law, referred to in paragraph 20 above, which are likely to be individually concerned by the contested regulation (see, on the General Court’s jurisdiction to carry out that verification, judgment of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraph 34).

27In the second place, as regards the applicant’s participation in the procedure leading to the adoption of the contested regulation, it is settled case-law that, although participation by an undertaking in an anti-dumping proceeding may be taken into account, amongst other factors, in order to establish whether that undertaking is individually concerned by the regulation introducing anti-dumping duties adopted at the conclusion of that proceeding, if there are no other factors giving rise to a particular situation which distinguishes that undertaking from all other traders, with respect to the measure in question, such participation does not, of itself, give rise to a right enabling the undertaking to bring a direct action against that regulation (judgments of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 61, and of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 34).

28The same applies with regard to the mention of an undertaking’s name in a regulation imposing a definitive anti-dumping duty. Since the mere participation of an undertaking in an anti-dumping proceeding is not sufficient, in the absence of other factors, to confer on it a right to bring a direct action against the regulation in question, an applicant cannot derive that right from the mention of its name in one or more recitals of that regulation, since that mention merely notes its participation in the proceeding (judgment of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 35, and order of 2 May 2022, Airoldi Metalli v Commission, T‑328/21, EU:T:2022:277, paragraph 44).

29In the present case, the applicant did not participate in the administrative procedure prior to the adoption of the provisional regulation. It did not send to the Commission, within 37 days from the date of publication of the notice of initiation of the anti-dumping proceeding in question, the user questionnaire referred to in point 5.5 of that notice. It is not one of the independent importers which were included in the sample based on the largest volume of imports in the procedure that led to the adoption of the provisional regulation.

30The fact that, subsequent to the adoption of the provisional regulation, the applicant, like many other parties, challenged the definition of the product concerned in the procedure that led to the adoption of the contested regulation, and the fact that it had claimed, in that regard, that the raw aluminium foil should be excluded from the scope of the anti-dumping duty, do not support the conclusion that the contested regulation is of individual concern to the applicant.

31Although the Commission responded, in the contested regulation, to the applicant’s arguments concerning the definition of the product concerned, it was, as the Commission claims, in the interest of a more comprehensive statement of reasons for the contested regulation and not due to a particular quality of the applicant. If the Commission had decided to exclude the raw aluminium foil from the definition of the product concerned, that exclusion would indeed have benefited any producer-exporter from the People’s Republic of China or importer of that foil into the European Union (see, to that effect and by analogy, judgment of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5).

32The Court of Justice has indeed held that an independent importer which, like the applicant, had participated in the administrative procedure after adoption of the provisional regulation and had disputed the definition of the product concerned did not have any qualities that were peculiar to it and which differentiated it from all other persons (see, to that effect, judgment of 17 March 2016, Portmeirion Group, C‑232/14, EU:C:2016:180, paragraphs 14 and 30).

The applicant’s participation in the administrative procedure also differs from that of the trader at issue in the case which gave rise to the judgment of 10 March 2021, Von Aschenbach & Voss (C‑708/19, EU:C:2021:190). In that case, the Commission had considered, in the recitals of the regulation at issue, that, given the involvement of that trader in the circumvention of the anti-dumping measures in force, it was appropriate to reject its application under Article 13(4) of Regulation 2016/1036 for exemption from the duties extended by that regulation (see, to that effect, judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraphs 44 and 45).

In the third place, as regards the possibility of traders other than those referred to in paragraph 20 above being individually concerned by reason of certain qualities which are peculiar to them and which differentiate them from all other persons, the Court of Justice has recognised the individual concern of an importer which had proved, first, that it was the largest importer of the product forming the subject matter of the anti-dumping measure and, at the same time, the end user of that product, second, that its economic activities depended, to a very large extent, on imports of that product and, third, that its activities were significantly affected by the contested regulation, given the limited number of producers of that product and the fact that it encountered difficulties in obtaining supplies from the single producer in the European Union, which was, moreover, its main competitor for the processed product (judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17).

However, the facts relied on by the applicant are not sufficient for it to be regarded as being individually concerned in the light of the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214).

First of all, although the applicant presents itself either as having been, during the investigation, the only importer of raw aluminium foil into the European Union, or as being the main importer of that product, it is not the largest importer of the product concerned, by contrast to the trader at issue in the case which gave rise to the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), as regards the product at issue in that case, or even one of the main importers of the product concerned. Moreover, so far as concerns the claim that the applicant was the only importer of raw aluminium foil, it is not disputed that, at the very least, one French company also imported that product. As regards the claim that it is the main importer of raw aluminium foil, the applicant provides no evidence, whereas it is apparent from the import statistics that imports of aluminium foil coming under TARIC codes 7607119051, 7607119091 and 7607119093 originating in the People’s Republic of China during the period from August 2020 to December 2021 represent [18 000 to 19 000 tonnes], of which only [6 000 to 7 000 tonnes] are destined for Italy, where the applicant is established. Moreover, those imports are also destined, with volumes that may exceed those destined for Italy, for countries which, in principle, do not concern the applicant, such as the Czech Republic, in the amount of [7 000 to 7 500 tonnes], the Netherlands, in the amount of [1 500 to 2 000 tonnes], and France, in the amount of [1 000 to 1 500 tonnes].

While the applicant claims that the statistical data relating to TARIC codes 7607119091 and 7607119093 are misleading, given that they include products other than raw aluminium foil with a purity of 99.99% by weight, it should be noted that the applicant itself referred several times to those codes in the course of the administrative procedure. Whereas, in its written pleadings, the applicant claims that those codes also cover products with a purity of 99.98% by weight, which are not suitable for its production of high-voltage anode and tab foils for electrolytic capacitators, it explicitly argued the contrary in its observations during the investigation procedure on 6 July 2021, namely that the codes at issue covered only products with a purity of 99.99%. In any event, it does not provide any information, in respect of the imports sector for aluminium foil and its actors, of a kind such as to establish its position more precisely than those statistical data allow.

In those circumstances, the applicant fails to establish that it is the largest importer of the product forming the subject matter of the anti-dumping measure, within the meaning of the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214).

Furthermore, the applicant does not dispute the statement in recital 233 of the contested regulation, according to which it can reasonably be expected that imports of the product concerned from the People’s Republic of China will continue, given the level of the definitive anti-dumping duty. In addition, it is important to note that the applicant does not claim to be unable to bear the amount of that duty (see, to that effect, order of 27 January 2006, Van Mannekus v Council, T‑278/03, not published, EU:T:2006:31, paragraph 144). Whilst the applicant claims that, in the aluminium sector, profit margins are very small, that allegation, which, moreover, is not substantiated, concerns all operators in that sector without distinction.

In so far as the applicant, which is both an importer and a user of the product concerned, claims that there is currently no producer of raw aluminium foil in the European Union, it must be held that that situation concerns all users of raw aluminium foil and differs from that of the trader at issue in the case that gave rise to the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), which was faced with a refusal of supply from its main competitor. The applicant, which did not complete the questionnaire mentioned in paragraph 28 above, does not, however, describe the sector of use of raw aluminium foil and its actors.

Lastly, it is important to note that the procurement of raw aluminium foil from producers other than Chinese producer-exporters is not, in the present case, excluded (see, to that effect and by analogy, judgment of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 41; orders of 5 February 2013, BSI v Council, T‑551/11, not published, EU:T:2013:60, paragraph 36, and of 2 May 2022, Airoldi Metalli v Commission, T‑328/21, EU:T:2022:277, paragraph 53). While it is true that the applicant argues that the number of producers of raw aluminium foil internationally is limited, it does not adduce any evidence to substantiate that assertion. Indeed, it does not claim to be facing difficulties in obtaining supplies from third-country producer-exporters. The import statistics tend, moreover, to confirm that it is possible for the applicant to procure supplies from third-country producer-exporters. Thus, for the period from August 2020 to December 2021, the total volume of imports into the European Union of aluminium foil coming under TARIC codes 7607119051, 76077119091 and 7607119093 amounts to [32 000 to 33 000] tonnes, including [18 000 to 19 000] tonnes originating in the People’s Republic of China, [7 000 to 8 000] tonnes originating in Turkey, [2 000 to 3 000] tonnes originating in Norway and [2 000 to 3 000] tonnes originating in Malaysia.

Accordingly, the applicant does not put forward any evidence to show that its imports are significantly affected by the contested regulation to the point of distinguishing it from other importers of the product concerned (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 65). The case-law has stated in this regard that the fact that certain operators are more affected, in economic terms, by a measure than their competitors is not sufficient for them to be regarded as being individually concerned by that measure (orders of 13 November 2008, Lemaître Sécurité v Commission, T‑301/06, not published, EU:T:2008:495, paragraph 24, and of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 55).

Consequently, even if account is taken of the fact that the applicant is seeking annulment of the contested regulation only in so far as the anti-dumping duty applies to raw aluminium foil, it has not established the existence of a set of factors constituting a particular situation of such a kind as to differentiate it, with regard to the contested regulation, from all other traders, within the meaning of the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214).

Lastly, it should be borne in mind that the finding of inadmissibility is consistent with the system of remedies provided for by EU law, since importers may, under the rules of national law, contest before the national courts individual measures taken by the national authorities in application of an anti-dumping regulation (order of 8 July 1987, Frimodt Pedersen v Commission, 301/86, EU:C:1987:345, paragraph 20).

It follows from all of the foregoing that the applicant is not individually concerned by the contested regulation, with the result that the present action must be dismissed as being inadmissible.

Costs

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay, in addition to its own costs, the costs incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.TDK Foil Italy SpA shall pay the costs.

Luxembourg, 19 September 2022.

Registrar

President

—

Language of the case: English.