(Appeal– Dumping– Implementing Regulation (EU) 2017/804– Imports of certain seamless pipes and tubes originating in China– Definitive anti-dumping duty– Regulation (EU) 2016/1036

15By application lodged at the General Court Registry on 7August 2017, Hubei sought annulment of the regulation at issue.

16By order of 24January 2018, the President of the Seventh Chamber of the General Court granted ArcelorMittal Tubular Products Roman SA, Válcovny trub Chomutov a.s. and Vallourec Deutschland GmbH (‘ArcelorMittal and Others’) leave to intervene in support of the form of order sought by the Commission.

17In support of its application, Hubei put forward four pleas in law. The first plea alleged infringement of Article3(2) and (3) of the basic regulation and of Article3, paragraphs3.1 and 3.2, of the Anti-Dumping Agreement. The second plea alleged infringement of Article3(6) of the basic regulation and of Article3, paragraph3.5 of the Anti-Dumping Agreement. The third plea alleged a manifest error of assessment in the establishment of a causal link, for the purposes of Article3(6) and (7) of the basic regulation. Finally, the fourth plea alleged a breach of ‘the obligation of due diligence and proper administration’. Only the first and second pleas were examined by the General Court and therefore only those pleas are relevant to the present proceedings.

18By the first part of its first plea, Hubei argued that by analysing, in the context of the determination of injury, price undercutting by reference to the investigation period, namely 2015, the Commission erred in law. That first part was rejected by the General Court in paragraphs48 to 52 of the judgment under appeal, which are not relevant to the present appeal.

19However, the General Court upheld the second part of Hubei’s first plea, which concerned the methodology adopted by the Commission in the context of the determination of injury to compare the prices of the dumped imports with the prices of products sold by the Union industry for the purposes of the analysis of price undercutting.

20In that regard, first of all, the General Court held, in essence, in paragraphs59 to 67 of the judgment under appeal, that, although the Commission had noted the existence of three market segments relating to the product under consideration relating, first, to oil and gas, second, to construction and, third, to electricity production, the Commission did not take account of that segmentation in its analysis of price undercutting and, more generally, in the examination of the effect of the dumped imports on prices in the Union market for like products. Accordingly, the General Court held that the Commission did not base its analysis on all the relevant data in the present case, in breach of Article3(2) and (3) of the basic regulation.

21In reaching that conclusion, the General Court relied, inter alia, on the report of the Appellate Body established by the WTO Dispute Settlement Body in the dispute ‘China– Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes (“HP‑SSST”) from Japan’ (WT/DS 454/AB/R and WT/DS 460/AB/R, report of 14October 2015, ‘the Appellate Body’s HP‑SSST report’) and on its own judgment of 28October 2004, Shanghai Teraoka Electronic v Council (T‑35/01, EU:T:2004:317).

22Secondly, in paragraphs68 to 75 of the judgment under appeal, the General Court held, in essence, that in so far as the Commission did not take into account, in the analysis of price undercutting, a certain volume of the product under consideration produced by the sampled EU producers, namely 17 of the 66 product types, referred to as ‘product control numbers’ (‘PCN’ or ‘PCNs’), representing 8% of the sales volume of those producers, which were not exported by the sampled Chinese exporting producers, it failed to take account of all the relevant data in the case at issue, in breach of Article3(2) and (3) of the basic regulation.

23Finally, the General Court held, in paragraphs77 to 79 of the judgment under appeal, that the findings that it had reached could not be called into question by the evidence put forward by the Commission after the hearing.

24In paragraphs82 to 89 of the judgment under appeal, the General Court also upheld the second plea raised by Hubei by holding, in essence, that, having found in the context of the first plea that the Commission had failed to take account of all the relevant factors for the purposes of determining price undercutting and of the effect of imports on prices in the Union market for like products, it had to be held that, as a result, the Commission’s conclusion as to the existence of a causal link, for the purposes of Article3(6) of the basic regulation, was founded on an incomplete factual basis, as a result of which the Commission failed to take into account, in the analysis of the causal link, all the relevant data in the case at issue.

25Accordingly, the General Court upheld the first and second pleas in law and, consequently, annulled the regulation at issue, in so far as it concerned Hubei, without examining the two other pleas put forward by Hubei.