CJEU, 2nd chamber, April 23, 2018, No T-675/15

THE GENERAL COURT (Second Chamber),

1 The applicant, Shanxi Taigang Stainless Steel Co. Ltd, is a company established in China, which primarily manufactures and sells steel products, including stainless steel cold-rolled flat products ('the products concerned').

2 Following a complaint lodged on 13 May 2014 by Eurofer, Association européenne de l'acier, ASBL, the European Commission published, on 26 June 2014, a Notice of initiation of an anti-dumping proceeding concerning imports of stainless steel cold-rolled flat products originating in the People's Republic of China and Taiwan (OJ 2014 C 196, p. 9), pursuant to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22, 'the basic regulation') (replaced by 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).

3 The investigation of dumping and injury covered the period from 1 January to 31 December 2013 ('the investigation period'). The examination of trends relevant for the assessment of injury covered the period from 1 January 2010 to 31 December 2013 ('the period considered').

4 For purposes of determining dumping and injury, the notice of initiation provided for sampling of exporting producers from China and Taiwan ('the countries concerned') and Union producers. The applicant was selected as part of the sample of four exporting producers from China, composed in the context of the investigation.

5 In the notice of initiation, the Commission informed the interested parties that it envisaged the United States as an appropriate market economy third country within the meaning of Article 2(7)(a) of the basic regulation (now Article 2(7)(a) of Regulation 2016/1036) ('the appropriate analogue country'). It invited the interested parties to comment on the appropriateness of that choice, while informing them that, according to the information available to it, the other market economy countries that could be considered for the selection of the appropriate analogue country were India, South Africa, South Korea and Taiwan.

6 The applicant did not submit a claim for market economy treatment under Article 2(7)(b) of the basic regulation (now Article 2(7)(b) of Regulation 2016/1036) and submitted comments on 6 July 2014 on the choice of the appropriate analogue country, contending that the United States represented an inappropriate choice, and suggesting that Taiwan should be chosen.

7 On 13 February 2015, a hearing took place with the Commission services following a request by the applicant and, on 24 March 2015, the Commission adopted Implementing Regulation (EU) 2015/501, imposing a provisional anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People's Republic of China and Taiwan (OJ 2015 L 79, p. 23, 'the provisional regulation'). The provisional regulation imposed a provisional anti-dumping duty of 24.3% on the applicant's exports of the products concerned to the European Union as from 26 March 2015 for a period of six months.

8 On 25 March 2015, the Commission informed the applicant of the essential facts and considerations on the basis of which it had been decided to impose a provisional anti-dumping duty ('the provisional disclosure').

9 On 20 April 2015, the applicant submitted its comments on the provisional disclosure. It objected to the use of the United States as the appropriate analogue country and stated that it was appropriate to use Taiwan for that purpose.

10 On 4 May 2015, the applicant participated in a hearing which, following a request by it, was organised by the Commission.

11 On 23 June 2015, the Commission sent its definitive disclosure to the applicant. On 3 July 2015, the applicant submitted comments on that disclosure.

12 On 26 August 2015, the Commission adopted Implementing Regulation (EU) 2015/1429, imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People's Republic of China and Taiwan (OJ 2015 L 224, p. 10, 'the contested regulation'), which amended the provisional regulation and imposed an anti-dumping duty of 24.4% on the imports to the European Union of the products concerned produced by the applicant.

Procedure and forms of order sought

13 By application lodged at the Court Registry on 20 November 2015, the applicant brought the present action.

14 By decision of 23 December 2015, the case was assigned to the First Chamber of the Court.

15 By document lodged at the Court Registry on 18 March 2016, Eurofer applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

16 By document lodged at the Court Registry on 10 May 2016, the applicant applied for certain information in the application to be treated as confidential with regard to Eurofer if the latter were to be granted leave to intervene. It included a non-confidential version of the application as an annex to its application for confidential treatment.

17 By order of 19 July 2016, the President of the First Chamber of the Court granted Eurofer leave to intervene.

18 By document lodged at the Court Registry on 6 September 2016, the intervener challenged the application for confidential treatment.

19 By decision of 4 October 2016, the case was assigned to the Second Chamber of the Court pursuant to Article 27(5) of the Rules of Procedure of the General Court.

20 By order of 11 January 2017, the President of the Second Chamber of the Court granted in part the application for confidential treatment submitted by the applicant.

21 On 14 December 2017, the Court (Second Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

22 The applicant claims that the Court should:

- annul the contested regulation in so far as it is concerned by it;

- order the Commission to pay the costs.

23 The Commission contends that the Court should:

- dismiss the action as unfounded;

- order the applicant to pay the costs.

24 The intervener contends that the Court should:

- dismiss the action as unfounded;

- order the applicant to pay the costs.

Law

25 In support of the action, the applicant puts forward three pleas in law, alleging, first, the infringement of Article 2(7)(a) of the basic regulation, secondly, the infringement of Article 2(10) of that regulation (now Article 2(10) of Regulation 2016/1036) and, thirdly, the infringement of Article 3(2), (6) and (7) of that regulation (now Article 3(2), (6) and (7) of Regulation 2016/1036).

The first plea in law, alleging an infringement of Article 2(7)(a) of the basic regulation

26 The first plea in law, alleging an infringement of Article 2(7)(a) of the basic regulation, is divided into two parts. First, the Commission allegedly infringed that provision by selecting the United States as the appropriate analogue country.According to the applicant, that selection was based on an erroneous interpretation and application of that provision as well as on manifest errors of appraisal of the facts. Secondly, even if the Commission could have validly selected the United States as the appropriate analogue country, it failed, when constructing normal value, pursuant to Article 2(7)(a) of the basic regulation, to make the required adjustments on account of differences in the production process and regarding access to raw materials.

First part of the first plea in law

27 In the first place, the applicant submits that the Commission erroneously interpreted and applied the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation (now the second sentence of the second subparagraph of Article 2(7)(a) of Regulation 2016/1036). According to the applicant, the Commission was, given the circumstances of the case, obliged to choose Taiwan as the appropriate analogue country, because, in particular, it was a 'market economy third country subject to the same investigation' within the meaning of that provision. More specifically, according to the applicant, the Commission had first of all to establish whether or not the market economy country subject to the same investigation, namely Taiwan, was an appropriate analogue country, before being able - only if that had not been the case - to choose the United States as the appropriate analogue country. The applicant submits that neither in the provisional regulation nor in the contested regulation had the Commission found that Taiwan was not an appropriate analogue country.

28 The Commission and the intervener dispute the applicant's arguments.

29 The Court notes, first of all, that in the case of imports from a non-market economy country, the second subparagraph of Article 2(7)(a) of the basic regulation provides as follows:

'An appropriate market economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits; where appropriate, a market economy third country which is subject to the same investigation shall be used.'

30 It is, therefore, for the EU institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country(judgment of 22 March 2012, GLS, C 338/10, EU:C:2012:158, paragraph 21).

31 It should be remembered, next, that the choice of reference country is a matter falling within the discretion enjoyed by the institutions in analysing complex economic situations. However, the exercise of that discretion is not excluded from judicial review. It is for the Court to verify whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (judgment of 22 October 1991, Nölle, C 16/90, EU:C:1991:402, paragraphs 11 and 12).

32 As regards, in particular, the choice of reference country, it is necessary to verify whether the institutions have neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and whether the information contained in the file in the case was considered with all the care required for it to be held that the normal value was determined in an appropriate and not unreasonable manner (see judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C 687/13, EU:C:2015:573, paragraph 51 and the case-law cited).

33 First of all, it must be noted that the applicant does not complain that the Commission sought to ascertain the appropriate analogue country without the required care by limiting its choice - as is apparent, in particular, from recital 38 of the provisional regulation - between Taiwan and the United States. It is common ground that the Commission envisaged taking into account other third countries as the reference country and that it tried to no avail to contact producers established in those third countries. Given that the producers in the envisaged analogue third countries are not required to cooperate, the fact that they do not accept the Commission's invitation to cooperate cannot constitute a breach of the duty of care incumbent on that institution (see, to that effect, judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C 687/13, EU:C:2015:573, paragraph 55).

34 In the present case, it is apparent from recitals 39 and 40 of the provisional regulation and recitals 25 to 33 of the contested regulation that the Commission carried out a comparative analysis between the United States and Taiwan in order to determine which of the two was the more appropriate analogue country. The Commission reached the conclusion that Taiwan should not be used as the appropriate analogue country, mainly because of the level of competition and size of its market, but that the United States should be used as that country.

35 Consequently, contrary to the applicant's submissions, it must be found that the Commission carried out the analysis as to whether or not it was suitable to use Taiwan as the appropriate analogue country and concluded that that was not the case since the United States was a more appropriate analogue country.

36 Contrary to the applicant's claims, nor can the Commission be validly criticised for showing bias towards the United States, solely on the ground that it had envisaged at that stage, in the notice of initiation, selecting the United States as the appropriate analogue country, since it was above all that country which had been proposed by the complainant adducing evidence that, according to the Commission, showed prima facie and on a provisional basis that that choice was appropriate.

37 Lastly, the fact that the second sentence of the second subparagraph of Article 2(7)(a) of the basic regulation states that, 'where appropriate, a market economy third country which is subject to the same investigation shall be used' cannot in itself invalidate the Commission's choice in the present case, since the Commission found, at the end of a comparative analysis of the potential analogue countries, that the United States was a more appropriate choice. Contrary to the applicant's claims, the Commission was not required to use Taiwan as the appropriate analogue country solely because it was a market economy third country which was subject to the same investigation, on pain, in particular, of infringing the obligation - stemming from the case-law mentioned in paragraph 30 above, incumbent upon the EU institutions - of trying to find, whilst taking account of the possible alternatives, a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export. The Commission therefore correctly carried out, in the present case, a comparative analysis between the United States and Taiwan in order to determine, in a not unreasonable manner, the more appropriate analogue country of the two.

38 In the second place, the applicant submits that the Commission made a manifest error in the assessment of the facts and erred in law in concluding that the United States was a more suitable analogue country than Taiwan on account of the competitiveness and size of its market.

39 First, the applicant submits, in referring in particular to the judgments of 29 May 1997, Rotexchemie (C 26/96, EU:C:1997:261, paragraph 15), and of 10 September 2015, Fliesen-Zentrum Deutschland (C 687/13, EU:C:2015:573, paragraph 66), that the Commission could not conclude that the Taiwanese market was not competitive for the products concerned or was less competitive than the market in the United States, while imports of the products concernedrepresented about 37% of total consumption in Taiwan and there were a number of small non-integrated domestic producers and one large integrated group in Taiwan.

40 Secondly, the applicant denies that the size of the domestic market concerned is a factor capable of influencing the price on that market. It notes in that regard that it has been held (judgment of 29 May 1997, Rotexchemie, C 26/96, EU:C:1997:261, paragraph 23) that the difference in size of the domestic markets at issue was not a relevant factor pursuant to Article 2(7)(a) of the basic regulation, when determining the appropriate analogue country, as long as during the period of the investigation there was a sufficient number of transactions to ensure the representative nature of the market in relation to the exports in question.The Commission confirmed, in recital 67 of the provisional regulation, that domestic sales by the investigated exporting producers in Taiwan were indeed representative. In any event, the market in Taiwan is larger than the market in the United States interms of consumptionper person of the products concerned.

41 The Commission and the intervener dispute the applicant's arguments.

42 It is apparent from the Court of Justice's case-law, as the applicant notes, that the mere fact that there is only one producer in the reference country does not in itself preclude the prices there from being the result of genuine competition, since such competition may just as well result, in the absence of price controls, from the presence of significant imports from other countries(judgments of 29 May 1997, Rotexchemie, C 26/96, EU:C:1997:261, paragraph 15, and of 10 September 2015, Fliesen-Zentrum Deutschland, C 687/13, EU:C:2015:573, paragraph 66).

43 However, in the present case, as is apparent from recital 39 of the provisional regulation, the Commission noted the existence in the United States of at least four large producers of a like product whereas, in Taiwan, it found that there was one large vertically integrated group of producers and a couple of small non-integrated producers. Recital 39 also states that imports of a like product into the United States and Taiwan were substantial, because they represented about 17% and 37% respectively of their total consumptions during the investigation period. Recital 40 of the provisional regulation states that the market in the United States is very competitive, whereas the market and prices of the products concerned in Taiwan are driven, to a large extent, by one group of companies, which, moreover, the applicant does not dispute. The provisional findings were confirmed in recital 30 of the contested regulation.

44 The fact that the market and prices of the products concerned in Taiwan are driven, to a large extent, by one large group of companies underlines the fact that those prices are not due to a normal competitive interaction. In addition, although the market share representing the imports from other countries may be considered significant, it must be found that those imports do not exert sufficient competitive pressure on the market in the products concerned in Taiwan, since, as the applicant acknowledges, the market and prices remain driven by the group of companies at issue. It must, therefore, be held that the Commission was able to find, without making a manifest error of assessment, that the Taiwanese market was less competitive than the United States market.

45 As regards the criterion relating to market size, the Court of Justice has held that while it is true that that criterion was not in principle a factor capable of being taken into consideration in the choice of a reference country, it was also necessary for that market to be representative in relation to the exports in question (see, to that effect, judgments of 22 October 1991, Nölle, C 16/90, EU:C:1991:402, paragraph 20, and of 29 May 1997, Rotexchemie, C 26/96, EU:C:1997:261, paragraph 23).

46 More recently, as pointed out in paragraph 30 above, the Court of Justice has stated that the objective of Article 2(7)(a) of the basic regulation was to try to find an analogue country in which the prices for a like product were formed in circumstances which are as similar as possible to those in the country of export (judgment of 22 March 2012, GLS, C 338/10, EU:C:2012:158, paragraph 21).

47 Contrary to the applicant's argument, it cannot be inferred from the case-law mentioned in paragraph 45 above that the difference in size, which is considerable in the present case, between the countries from which the appropriate analogue country must be chosen, may not be relevant in assessing whether the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, within the meaning of the case-law mentioned in paragraph 46 above. That is all the more so since, as the Commission observes, the cases giving rise to the judgments relied upon by the applicant did not concern the situation in which two analogue countries were compared to the non-market economy country subject to the investigation and in which one of those two countries was considered more appropriate than the other on the basis of the size of the domestic market among other criteria taken into consideration, as is the case in this instance. First, in the cases giving rise to the judgments of 11 July 1990, Neotype Techmashexport v Commission and Council (C 305/86 and C 160/87, EU:C:1990:295, paragraph 31), and of 22 October 1991, Nölle (C 16/90, EU:C:1991:402, paragraph 20), it was a question of assessing whether the country chosen as the reference country for the purposes of establishing normal value was inappropriate because of the size of its relevant market. Secondly, the case giving rise to the judgment of 29 May 1997, Rotexchemie (C 26/96, EU:C:1997:261, paragraph 23), concerned a situation in which it was assessed whether the size of the market had been able to justify the decision not to use certain countries among those that might be chosen as reference countries.

48 In addition, in so far as the applicant argues in that context that the consumption per inhabitant of the products concerned is greater in Taiwan than in the United States, it suffices to note that that argument manifestly does not concern the relevance of market size as a criterion to be taken into consideration in determining the analogue country, but only the consumption per inhabitant of the products concerned.

49 Lastly, irrespective of the merits of the Commission's argument that the size of the domestic market was, in the present case, a decisive additional circumstance for the purposes of choosing the United States as the reference country, rather than Taiwan, in that the size of the domestic market is, from a competition point of view,a factor capable of influencing the price for a product, it must be pointed out that the decisive conclusion which, as found in paragraph 44 above, is not vitiated by a manifest error, according to which the United States market was more competitive than the Taiwanese market, is not, in any event, put in question solely on the ground that the size of the American and Taiwanese domestic markets was taken into consideration.

50 In the third place, the applicant submits that the differences, found in recital 26 of the contested regulation as regards the sourcing of nickel, one of the primary raw materials in the production of the products concerned, between China, on the one hand, and the United States and Taiwan, on the other, cannot make the United States a more appropriate analogue country than Taiwan. In addition, the fact that one of the Taiwanese producers uses black coils produced from nickel pig iron, a raw material used almost exclusively in China, leads to the proximity of the costs of production in Taiwan and China. Nor is the fact that the Commission replaced the purchase prices of the black coils, which allegedly reflected the costs of production in China, with the costs of production in Taiwan, where nickel pig iron is not used, such as to make the United States a more appropriate analogue country than Taiwan.

51 The Commission and the intervener dispute the applicant's arguments.

52 As the Court of Justice found in the judgment of 22 October 1991, Nölle (C 16/90, EU:C:1991:402, paragraph 26), it follows from the EU institutions' established practice that the comparability of access to raw materials must be taken into consideration for the choice of reference country.

53 In the present case, it is apparent from recital 26 of the contested regulation that the sourcing of nickel in China differed from that in the United States and Taiwan. It is, therefore, apparent that the Commission did indeed take into consideration the comparability of access to raw materials.In addition, the Commission deduced that that factor was not decisive since it could not be concluded from that circumstance that the United States or Taiwan was a more appropriate analogue country.

54 Similarly, as regards the difference in the costs of production in the United States and China, it follows from recital 27 of the contested regulation that that finding did not make either the United States or Taiwan a more appropriate analogue country than the other. Consequently, the Commission deduced that that factor was not decisive in the choice of the appropriate analogue country either.

55 Given that, contrary to what the applicant seems to suggest, neither the differences in the sourcing of nickel nor the difference in the costs of production in the United States and China therefore influenced the choice of the appropriate analogue country in the present case, the applicant's argument must, in any event, be rejected as ineffective.

56 In the light of all the foregoing considerations, the first part of the first plea in law must be rejected.

The second part of the first plea in law

57 The applicant submits that should the Court find that the Commission had not erred in choosing the United States as the appropriate analogue country, it had, nonetheless, failed to make the required adjustments on account of differences in the production process and regarding access to raw materials, in the context of constructing normal value pursuant to Article 2(7)(a) of the basic regulation. Such adjustments ought not to have been rejected with reference to possible adjustments having to be made pursuant to Article 2(10) of the basic regulation. The applicant relies in that regard, in particular, on the judgment of 22 October 1991, Nölle (C 16/90, EU:C:1991:402, paragraph 26), in which the Court of Justice held that the comparability of access to raw materials must be taken into consideration for the choice of reference country and that the advantages resulting from access to raw materials cannot be excluded simply because there is no market economy in the exporting country, and also on paragraph 110 of the judgment of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (T 558/12 and T 559/12, not published, EU:T:2015:237).

58 The Commission and the intervener dispute the applicant's arguments.

59 It should be noted that, under Article 2(7)(a) of the basic regulation, in the case of imports from non-market economy countries, in derogation from the rules laid down in Article 2(1) to (6) of that regulation (Article 2(2) to (6) of that regulation now Article 2(2) to (6) of Regulation 2016/1036), normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country.

60 The aim of Article 2(7)(a) of the basic regulation is, therefore, to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of market forces (see judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C 687/13, EU:C:2015:573, paragraph 48 and the case-law cited).

61 The Court has also held that it is not only the prices and costs in the appropriate analogue country which must be taken into account when determining the normal value, but all data concerning that market(judgment of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, T 558/12 and T 559/12, not published, EU:T:2015:237, paragraph 110).

62 In the light of the case-law mentioned in paragraphs 60 and 61 above, the EU institutions cannot be required to make adjustments in the light of factors which are not directly or indirectly the normal result of market forces.

63 Since China was not, at the material time, considered a market economy and the applicant, as an exporting producer of the products concerned, did not submit a claim for market economy treatment underArticle 2(7)(b) of the basic regulation, there is nothing to indicate that the sourcing of nickel or the production process of an undertaking operating in non-market economy conditions are not influenced by parameters which are not the result of market forces.

64 Adjustments cannot, therefore, be made, on account of differences in the production process and access to raw materials observed in China, in the context of the construction of normal value pursuant to Article 2(7)(a) of the basic regulation, given that, as noted in paragraph 60 above, the aim of that provision is precisely to prevent account being taken of prices and costs in force in non-market economy countries.

65 In addition, while the Court of Justice has held that the comparability of access to raw materials had to be taken into consideration for the choice of reference country and that the advantages resulting from access to raw materials cannot be excluded simply because there is no market economy in the exporting country (see, to that effect, judgment of 22 October 1991, Nölle, C 16/90, EU:C:1991:402, paragraph 26), it must be borne in mind that, as the Commission correctly stated, that case-law is not transposable to the present case. In the context of the case giving rise to that judgment, the Court of Justice ruled on factors which ought to be taken into account in choosing the reference country. In that regard, it is apparent from recital 26 of the contested regulation that the Commission had indeed taken into account the comparability of access to raw materials before concluding that the differences observed did not render the United States an inappropriate analogue country in the present case, as the final products from the United States and China were still comparable.

66 It is apparent from all the above considerations that the second part of the first plea in law cannot be upheld either.

67 Consequently, the first plea in law, alleging the infringement of Article 2(7)(a) of the basic regulation, must be rejected in its entirety.

The second plea in law, alleging an infringement of Article 2(10) of the basic regulation

68 The applicant submits that the Commission infringed Article 2(10) of the basic regulation by refusing to make required adjustments for internal transport costs of one of the United States exporting producers on the basis of Article 2(10)(e) of that regulation (now Article 2(10)(e) of Regulation 2016/1036). The Commission should have assessed on its own initiative the need for such an adjustment on the basis of Article 2(10)(k) of that regulation (now Article 2(10)(k) of Regulation 2016/1036). The fact that the applicant was not the producer making the claim for adjustment is irrelevant, since the existence of such costs was not a factor specific to the applicant.

69 The Commission and the intervener dispute the applicant's arguments.

70 Article 2(10)(k) of the basic regulation provides that an adjustment may also be made for differences in other factors not provided for under Article 2(10)(a) to (j) of that regulation (now Article 2(10)(a) to (j) of Regulation 2016/1036) if it is demonstrated that they affect price comparability as required under Article 2(10), in particular that customers consistently pay different prices on the domestic market because of the difference in such factors.

71 In accordance with the case-law of the Court of Justice, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified. The burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C 191/09 P and C 200/09 P, EU:C:2012:78, paragraphs 58 and 60 and the case-law cited).

72 In support of the second plea in law, the applicant relies on the fact that another Chinese exporting producer referred to in the investigation had made a claim for adjustment of normal value after noting that one of the American producers had additional costs related to internal transport between sites in the production process within its group. The Commission incorrectly relied on Article 2(10)(e) of the basic regulation in order to refuse to make that adjustment on the ground that that provision did not cover internal transport costs. According to the applicant, theCommission ought to have assessed the need to make such an adjustment, not under the abovementioned provision, but pursuant to Article 2(10)(k) of the basic regulation.

73 In that regard, it suffices to note that it was for the applicant during the administrative procedure to make a claim for adjustment under Article 2(10)(k) of the basic regulation. However, the applicant acknowledges that it did not, at any time during the administrative procedure, claim an adjustment under Article 2(10) of the basic regulation. Consequently, it has not adduced evidence, in accordance with the case-law noted in paragraph 71 above, to show that a difference in internal transport costs would be such as to affect price comparability within the meaning of Article 2(10) of the basic regulation between the normal value and its own export prices and that an adjustment had to be made under Article 2(10)(k) of the basic regulation.

74 The applicant's argument that the existence of additional costs related to internal transportwas not a factor specific to its undertaking but that it was sufficient for another exporting producer to make a claim for an adjustment under Article 2(10) of the basic regulation cannot be accepted. As noted in paragraph 73 above, it was for the applicant to prove that a difference in internal transport costs was such as to affect price comparability within the meaning of Article 2(10) of the basic regulation between the normal value and its own export prices.

75 Moreover, the Chinese exporting producer which made a claim for adjustment of normal value had relied on Article 2(10)(e) of the basic regulation, not Article 2(10)(k) of that regulation. It cannot, therefore, be complained that the Commission failed to examine the claim in the light of that latter provision, since the burden of proving that the specific adjustments set out in Article 2(10)(a) to (k) of the basic regulation must be made lies with the person wishing to rely on them.

76 Consequently, the second plea in law must in any event be rejected and there is no need to rule on the Commission's objection that that plea in law is inadmissible.

The third plea in law, alleging an infringement of Article 3(2), (6) and (7) of the basic regulation

77 By its third plea in law, divided into two parts, the applicant submits that the Commission infringed Article 3(2) and (6) of the basic regulation and Article 3(7) of that regulation.

The first part of the third plea in law, alleging an infringement of Article 3(2) and (6) of the basic regulation

78 The applicant submits, in essence, that the assessment of the causal link between the imports from the countries concerned and their impact on the Union industry is vitiated by manifest errors of assessment and that the Commission, therefore, infringed Article 3(2) and (6) of the basic regulation. It thereby disputes the Commission's analysis carried out on the basis of positive attribution provided for in Article 3(6) of that regulation, which consists in establishing that the volume and/or price levels of the dumped imports have been, during the period considered, responsible for an impact on the Union industry as provided for inArticle 3(5) of that regulation (now Article 3(5) of Regulation 2016/1036) which may be classified as material.

79 As regards, in the first place, the correlation between the volume of imports from the countries concerned and their impact on the Union industry, the applicant submits that the conclusion in recital 161 of the provisional regulation confirmed in the contested regulation, according to which 'the strong increase of dumped imports led not only to deteriorating profitability but also to lost market share by the Union industry' is contradicted, in particular, by the Union producers' increased volume of sales and by the size of their market share in 2012 and the relatively small fluctuations in those sales and market share during the period considered.In that context, the applicant submits, first, that the Commission made a manifest error of appraisal since it failed to justify the Union producers' 2012 market share increasefor the products concerned and, secondly, that it failed to examine with care and impartiality the specific data presented to it in merely examining the volume of imports over two extra years only.

80 As regards, in the second place, the correlation between the price levels of the imports from the countries concerned and their impact on the Union industry, the applicant states that it is apparent from recital 138 of the provisional regulation that the prices charged by the Union industry follow an 'alloy-surcharge' mechanism, under which prices consist of a fixed 'base price', which is negotiated with customers and depends on market supply and demand, and an 'alloy surcharge', which is intended to off-set price increases in raw materials and fluctuates in particular depending on the quotations of the alloys on the London Metal Exchange (United Kingdom). Consequently, the prices charged by the Union industry are linked to the development of raw material costs. In that context, the applicant submits that the Commission infringed its obligation to examine the data with care and impartiality, since it failed to examine (i) the precise effect of the declining prices of nickel - which are not disputed - on the prices charged in the countries concerned and in the European Union for the products concerned, including carrying out an assessment of how the Union producers' base price was formulated and the extent to which it was also affected by fluctuations in the raw material prices and (ii) the existence and extent of any alleged price-undercutting by imports from the countries concerned, in the light of the data on declining raw material prices.

81 The Commission and the intervener dispute the applicant's arguments.

82 It should be borne in mind, first of all, that in accordance with Article 3(2) of the basic regulation, a determination of injury must be based on positive evidence and must involve an objective examination of, first, the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products and, secondly, the consequent impact of those imports on the Union industry.

83 In accordance with Article 3(6) of the basic regulation, it must be demonstrated, from all the relevant evidence presented in relation to Article 3(2) of that regulation, that the dumped imports are causing injury within the meaning of that regulation. Specifically, this is to entail a demonstration that the volume and/or price levels identified pursuant to Article 3(3) of that regulation (now Article 3(3) of Regulation 2016/1036) are responsible for an impact on the Union industry as provided for in Article 3(5), and that that impact exists to a degree which enables it to be classified as material.

84 It is well-established case-law that determination of injury involves the assessment of complex economic matters. In that respect, the EU institutions enjoy a wide discretion. The Courts of the European Union must therefore restrict their review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate or whether there has been a manifest error of assessment or a misuse of powers (see judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T 310/12, not published, EU:T:2015:295, paragraphs 127 and 128 and the case-law cited).

85 In addition, it is for the applicant to adduce evidence enabling the Court to find that the Commission made a manifest error of assessment when determining injury (see, to that effect, judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T 310/12, not published, EU:T:2015:295, paragraph 129).

86 Lastly, it must be pointed out that the applicant does not deny that, as noted in recital 118 of the contested regulation, the effects of the dumped imports from China and Taiwan were cumulatively assessed within the meaning of Article 3(4) of the basic regulation (now Article 3(4) of Regulation 2016/1036), in accordance with the findings of recitals 97 to 102 of the provisional regulation confirmed in recital 72 of the contested regulation.

87 The Court must examine in the light of those considerations the applicant's claims concerning the alleged manifest errors of assessment made by the Commission in the assessment of the causal link between the injury sustained by the Union industry and, on the one hand, the volume of imports from the countries concerned and, on the other, the price levels of those imports.

88 As regards, in the first place, the correlation between the volume of imports from the countries concerned and their impact on the Union industry, it is apparent from the provisional regulation and, in particular, from recitals 157 and 161 thereof, that the Commission carried out a detailed assessment of the impact of the volume of the dumped imports on the Union industry, in accordance with Article 3(2) of the basic regulation, and that it deduced from this that the Union industry had sustained significant material injury. In recital 207 of the provisional regulation, the Commission concluded that the increase in the low-price dumped imports from the countries concerned had led to the undercutting of Union industry prices during the investigation period and to the fragile financial situation of the Union industry, and also to the drop in production, capacity utilisation, employment and market share. Those findings were confirmed in recital 144 of the contested regulation.

89 Consequently, in recitals 105 and 106 of the provisional regulation, the Commission found, first, that the volume of cumulated imports from the countries concerned had risen by 70% during the period considered and that the cumulative market share of those imports had risen by 63% from 5.8% to 9.5% during that period. Those findings were confirmed in recital 74 of the contested regulation.

90 Next, as regards the European Union's economic situation, it was found first, in recitals 113 to 151 of the provisional regulation and in particular in recital 127 thereof - the findings of which were confirmed in recital 95 of the contested regulation - that the Union industry's sales volume had been stable throughout the period considered, that the Union industry had not, therefore, fully benefited from continuous growth of the Union's consumption by 4% throughout the period considered, found in recital 96 of the provisional regulation, and that the Union industry's market share had decreased by 5% during the same period. Next, it was found, in recital 153 of the provisional regulation, that although some injury indicators, such as production capacity and productivity, showed a slightly positive trend, this was due to the increase of consumption during the period considered and the reduction in the number of employees. In addition, as regards the indicators linked to production volume, capacity utilisation, market share, sales prices and costs of production, the Commission found, in recital 154 of that regulation, that they had had a temporarily more positive development in 2011 or 2012 in comparison to the previous year and then decreased again. Lastly, it was found in that recital that profitability had been negative in all four years of the period considered, while cash flow had been negative in three out of four years. Those findings were confirmed in recital 115 of the contested regulation.

91 Accordingly, to the extent that the weakness in the situation of the Union industry coincided with the considerable increase in the volume and market share of the dumped imports from the countries concerned, it was concluded that those imports had had a decisive impact on the material injury suffered by the Union industry.

92 The applicant submits that the increase in imports of the products concerned from the third countries concerned was the normal consequence of the development in line with Union consumption. But, as the Commission correctly noted, it cannot be validly considered that a 70% increase in imports from the countries concerned represents, as the applicant argues, 'movement in line' in the light of a 4% increase in Union consumption during the period considered.

93 In addition, first, it should be noted that although the examination by the institutions must lead to the finding that the injury to the Union industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend (judgment of 25 October 2011, CHEMK and KF v Council, T 190/08, EU:T:2011:618, paragraph 114). Secondly, the mere fact that certain injury factors improved during the period considered does not, however, mean that the Union industry has not sustained material injury (see, to that effect, judgment of 30 March 2000, Miwon v Council, T 51/96, EU:T:2000:92, paragraph 105).

94 Contrary to the applicant's claims, the mere fact that the Union producers' market share increased in 2012 cannot call in question the Commission's conclusions in the present case. That slight increase was only relative since it is common ground that it was the only exception during the period considered, as was found in recital 142 of the contested regulation.

95 In addition, contrary to the applicant's submissions, it must be found that the Commission examined with care and impartiality the specific data submitted to it since it evaluated whether the fluctuation observed in 2012 was only an anomaly or whether it was due to the cyclical nature of the development of imports, by collecting the data for two additional years, namely 2009 and 2014, thereby increasing the period covered from four to six years. It concluded from this that 2012 was only an anomaly.

96 Lastly, it must be pointed out, first, that the applicant has not called in question any of the findings of fact or figures at issue, in the provisional regulation and the contested regulation, and, secondly, that it has simply asserted, without any further details, that the Commission ought to have carried out its examination over a longer period, without proving that the Commission had committed a manifest error of assessment in limiting its examination to two additional years only.

97 Having regard to the foregoing, the applicant's argument that the Commission committed a manifest error of assessment in establishing a correlation between the volumes of imports from the countries concerned and their impact on the Union industry must be rejected.

98 As regards, in the second place, the correlation between the level of the prices of the imports from the countries concerned and their impact on the Union industry, it is apparent from recitals 96 to 104 of the contested regulation that the Commission carried out a detailed examination of the operation of the 'alloy surcharge' mechanism and the formulation of the Union producers' base price. It concluded from that examination, in recital 100 of the contested regulation, (i) that the decreasing sales prices of the Union industry were caused both by the decreasing raw material costs and, as is apparent in particular from recitals 97 and 99 of the contested regulation, the significant decrease of the base price which was unrelated to raw material cost developments and (ii) that that decrease of the base price showed that the Union industry had had to further decrease its sales prices throughout the period considered despite being loss making due to the price pressure exerted by the dumped imports from the countries concerned.

99 As the Commission and the intervener correctly noted, the applicant has not proven that the Commission had made a manifest error in concluding that it was the price pressure exerted by the rapid increase in the volumes of imports from the countries concerned, undercutting the Union industry prices by 10% on average, as found in recital 118 of the contested regulation, which had prevented the Union industry from maintaining or increasing its sales prices, notwithstanding the fall in nickel prices, in order to return to profitability.

100 In the light of the foregoing, contrary to the applicant's claims, it must be found that the Commission examined the data with care and gave due reasons for its conclusion, and that the applicant has not proven that the Commission had made manifest errors in its assessment.

101 Accordingly, the first part of the third plea in law must be rejected.

The second part of the third plea in law, alleging an infringement of Article 3(7) of the basic regulation

102 The applicant submits, in essence, that the Commission infringed Article 3(7) of the basic regulation in attributing the injury caused to the Union industry to the imports from the countries concerned. Throughout the period considered, the Union industry suffered losses despite the fact that its sales volume was stable and its sales prices were above the cost of production. The injury stems from other factors, namely, first, imports from third countries, secondly, the export performance of the Union industry and, thirdly, the overcapacity which the Union industry historically suffers from.

103 As regards, first, imports from third countries, the applicant submits that the Commission committed a manifest error of appraisal by incorrectly assessing the effects of such imports and attributing the price pressure and/or injury to the dumped imports of the products concerned from the countries concerned. The applicant refers in that regard to the average import prices of the products concerned from South Korea and South Africa, which were lower than those of the imports from the countries concerned during the period considered, which the Commission ought to have taken into account in its assessment. According to the applicant, in refusing to examine the reasons for which South Korean and South African average import prices for the products concerned were lower than those of the countries concerned, the Commission failed to assess the facts with care and impartiality. In that context, the Commission ought to have taken account of the various grades and series of the steel at issue, given that prices vary from one series to another. Lastly, in its observations on the supplementary statement in intervention, the applicant argues that the Commission infringed its procedural rights in that it failed to inform it of the fact that the imports from South Africa were in part channelled through a Union producer onto the Union market. This prevented the applicant from requesting the Commission to consider the information available to that producer, which may have led to a different outcome of the investigation.

104 As regards, secondly, the Union industry's export performance, the applicant submits that the Commission made a manifest error of appraisal in failing to engage in a detailed examination of the effect of that performance, characterised by a fall in the level of exports and in prices, on the state of the Union industry. The applicant disputes the Commission's statement that the decrease over the period considered of the export prices of the Union industry and of the sales prices in the European Union was the same.

105 As regards, thirdly, the Union industry's structural overcapacity, the applicant submits that the Commission committed a manifest error of appraisal in attributing the decrease in the utilisation of the Union's production capacity to the allegedly dumped imports from the countries concerned, whereas, already in 2010, Union producers had negative profitability, with Union capacity utilisation as low as 77%, despite imports from the countries concerned accounting for only 5.8% of the Union market.

106 The Commission and the intervener dispute the applicant's arguments.

107 First, it must be borne in mind that Article 3(7) of the basic regulation provides that known factors other than the dumped imports which at the same time are injuring the Union industry must be examined to ensure that injury caused by those other factors is not attributed to the dumped imports under Article 3(6) of that regulation.

108 Next, it is settled case-law that the determination of the existence of injury caused to the Union industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is particularly the case as regards the determination of the factors injuring the Union industry in an anti-dumping investigation (see judgment of 10 September 2015, Bricmate, C 569/13, EU:C:2015:572, paragraph 46 and the case-law cited).

109 In determining injury, the EU institutions 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. To that end, 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. However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material, the causal link between those imports and the injury suffered by the Union industry can consequently be established (see, to that effect, judgments of 19 December 2013, Transnational Company 'Kazchrome' and ENRC Marketing v Council, C 10/12 P, not published, EU:C:2013:865, paragraphs 23 to 25, and of 16 April 2015, TMK Europe, C 143/14, EU:C:2015:236, paragraphs 35 to 37).

110 Lastly, it is for the parties pleading the illegality of a regulation such as the contested regulation to adduce evidence to show the impact of the factors that may have an effect on the injury caused to the Union industry. Those parties must, in particular, show 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).

111 As regards, in the first place, the imports into the European Union from South Korea and South Africa, it is apparent from recital 124 of the contested regulation that the market share of the imports from South Korea increased from 2.3% to 2.8% throughout the period considered, an increase of only 0.5 percentage points, whereas it is apparent from recital 173 of the provisional regulation that the market share of South African imports had decreased from 2.1% to 1.6% during the same period.

112 Similarly, it is apparent from Table 15 of the provisional regulation that the volume of imports from South Korea continued to fall between 2010 and 2012 and increased only in 2013, while imports from South Africa displayed a downward trend.

113 By way of comparison, it was found, in recital 105 of the provisional regulation, that cumulated imports from the countries concerned had risen by 70% then, in recital 106 of that regulation, that the cumulative market share had risen by 63% from 5.8% to 9.5% during the period considered. Those findings were confirmed in recital 74 of the contested regulation.

114 In the light of those data, which the applicant has not disputed, it must be found that the market shares and volumes of the imports from South Korea and South Africa are markedly lower than those from the countries concerned and that they varied only slightly during the period considered.

115 Consequently, it must be found that the Commission did not commit a manifest error of assessment when in evaluating the effects of the imports from South Korea and South Africa it concluded, in recital 206 of the provisional regulation, which was confirmed in recital 144 of the contested regulation, that those imports may have contributed to the injury but only to a very limited extent.

116 In addition, the Court notes that it is apparent from recitals 121 to 129 of the contested regulation, and specifically from recitals 121, 122, 128 and 129 of that regulation, that the Commission analysed the price levels of the imports from South Korea and South Africa and their potential impact and found, in particular, that as already stated in recital 174 of the provisional regulation the products concerned consisted of various steel grades leading to significant price differences that had not been able to be taken into account in the average price from the statistical office of the European Union (Eurostat). The Commission deduced from this that it was not meaningful simply to compare average prices which did not take into account those differences.

117 As the Commission stated, no exporting producer from South Korea or South Africa had cooperated in the investigation. Accordingly, since the Commission had no means available to force producers to cooperate, it was in fact impossible for it to carry out an in-depth examination of the effects of the imports of the products concerned from South Korea and South Africa in the light of the prices of the various grades of steel concerned.

118 Consequently, in relying on the data available to it, it must be found that the Commission examined the facts with care and impartiality.

119 In the light of the foregoing, the applicant has not proven that the Commission had committed a manifest error of assessment in evaluating the effects of those imports and in attributing the price pressure and/or injury to the imports of the products concerned dumped from the countries concerned.

120 Consequently, nor is it apparent that those imports could have had such an impact that the existence of material injury to the Union industry and of the causal link between that injury and the dumped imports was no longer reliable.

121 As regards, lastly, the applicant's complaint alleging an infringement of its procedural rights on the ground that the Commission ought to have informed it, during the administrative procedure, of the information that the imports from South Africa were largely channelled through a Union producer onto the Union market, information of which the applicant only become aware through the supplementary statement in intervention (see paragraph 103 above), it suffices to note that the applicant simply asserted that if it could have requested the Commission 'to consider' that partial information on the grades of steel imported from South Africa, this 'may have led to a different' outcome of the Commission's investigation, without in any way explaining that assertion. As was noted in paragraph 115 above, it was, in any event, only to a very limited extent that the imports from South Korea and South Africa may have contributed to the injury caused to the Union industry.

122 As regards, in the second place, the export performance of the Union industry, it is apparent from recital 179 of the provisional regulation that the Commission found, first, that the export volumes of the sampled Union producers had decreased after a single increase in 2011 in both volumes and sales prices and, secondly, that the export volumes of the sampled producers represented around 12% of their combined production. The Commission had thereby inferred from this that although the decreased exports may have contributed to the drop in production, any contribution of exports to the injury suffered by the Union industry could only have been very limited, given the low level of exports in relation to sales in the European Union.

123 It must be held that the Commission was entitled to reach that conclusion, confirmed in recital 144 of the contested regulation, without making a manifest error of assessment. Admittedly, while the Union industry's export volume, which represented a 12% share, does not constitute a negligible proportion, it must be noted that that volume represents only a minimal share of its overall sales. Consequently, a decrease in exports could only have had a limited impact on the Union industry's financial performance.

124 As regards the decrease in the Union industry's export prices during the period concerned, which the applicant has relied on as a factor that contributed to the damage sustained by that industry, it must be found that, contrary to the applicant's claims, that decrease was very similar to that of the sales prices on the Union market, as is apparent in particular from Tables 11 and 16 of the provisional regulation and recital 131 of the contested regulation, and is not such as to call in question the conclusion that the impact of the exports on the industry's financial performance could only have been limited.

125 Lastly, in any event, it must be pointed out that the applicant does not establish that the Union industry's export performance has had such an impact that the existence of material injury caused to the Union industry and of the causal link between that injury and the dumped imports was no longer reliable.

126 It follows from the foregoing that the applicant's complaint that the Commission committed manifest errors of assessment during the evaluation of the possible impact of the Union industry's export performance on the injury caused to that industry is unfounded.

127 As regards, in the third place, the Union industry's overcapacity, it is apparent from recital 181 of the provisional regulation and recital 133 of the contested regulation that capacity utilisation of the Union industry had decreased from 77% in 2010 to 70% in the period considered, mainly due to a decrease in production volumes, whereas the production capacity of the Union industry and the consumption on the Union market had developed in parallel, both increasing by 4% during the same period. The Commission had inferred from this that the loss in capacity utilisation was caused by the inability of the Union industry to take advantage of the growing market, as this growth was absorbed by dumped imports from the countries concerned. It had, therefore, been concluded that the resulting alleged overcapacity was more a result of the dumped imports than a cause of the injury suffered by the Union industry.

128 In that regard, the applicant submits that that conclusion is not based on an objective assessment of the facts, since that overcapacity already existed in 2010 and, therefore, pre-existed any alleged dumping of imports from the countries concerned in the period considered. It thus complains that the Commission failed to explain how the low amount of imports from the countries concerned could have been responsible for the low capacity utilisation as early as 2010.

129 However, as the Commission correctly noted, 2010 had been the year with the highest capacity utilisation throughout the period considered and had marked the beginning of a downward trend of capacity utilisation, decreasing from 77% to 70%. In that context, the applicant has failed to establish that the Commission had committed a manifest error of assessment in finding that the Union industry's overcapacity was linked to the increased level of dumped imports and that that overcapacity was not a factor capable of undermining the relevance of the link between those imports and the injury sustained by the European Union.

130 Accordingly, the applicant's complaint that the Commission committed a manifest error of assessment during the evaluation of the possible impact of the Union industry's overcapacity on the damage suffered by that industry must be rejected.

131 It follows from all the foregoing that the second part of the third plea in law must also be rejected.

132 Consequently, the third plea in law, alleging the infringement of Article 3(2), (6) and (7) of the basic regulation, must be rejected and, therefore, the action must be dismissed in its entirety.

Costs

133 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 bear its own costs and to pay the costs incurred by the Commission and by the intervener, in accordance with the form of order sought by them.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1. Dismisses the action;

2. Orders Shanxi Taigang Stainless Steel Co. Ltd to bear its own costs and to pay those incurred by the European Commission and by Eurofer, Association européenne de l'acier, ASBL.

Prek Buttigieg Berke

Delivered in open court in Luxembourg on 23 April 2018.