Caviro Distillerie and Others v Commission (Dumping - Imports of tartaric acid originating in China - Judgment) [2019] EUECJ C-345/18P (10 July 2019)

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(Appeal — Commercial policy — Dumping — Implementing Decision (EU) 2016/176 — Imports of tartaric acid originating in China and produced by Hangzhou Bioking Biochemical Engineering Co. Ltd — Regulation (EC) No 1225/2009 — Article 3(2), (3) and (5) — No material injury — Manifest error of assessment — Determination of injury — Evaluation of all relevant economic factors and indices having a bearing on the state of the EU industry — Market share)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 May 2018,

European Commission, represented by J.-F. Brakeland and A. Demeneix, acting as Agents,

composed of F. Biltgen, President of the Chamber, A. Prechal (Rapporteur), President of the Third Chamber, and C.G. Fernlund, Judge,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By their appeal, Caviro Distillerie Srl, Distillerie Bonollo SpA, Distillerie Mazzari SpA and Industria Chimica Valenzana (ICV) SpA ask the Court of Justice to set aside the judgment of the General Court of the European Union of 15 March 2018, Caviro Distillerie and Others v Commission (T‑211/16, ‘the judgment under appeal’, EU:T:2018:148), by which the General Court dismissed their action for annulment of Article 1 of Commission Implementing Decision (EU) 2016/176 of 9 February 2016 terminating the anti-dumping proceeding concerning imports of tartaric acid originating in the People’s Republic of China and produced by Hangzhou Bioking Biochemical Engineering Co. Ltd (OJ 2016 L 33, p. 14, ‘the decision at issue’).

2 At the time of the events giving rise to the dispute, the provisions governing the adoption of anti-dumping measures by the European Union were contained in 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, and corrigendum, OJ 2010 L 7, p. 22, ‘the basic regulation’). That regulation was repealed by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of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).

‘It is necessary to lay down clear and detailed guidance as to the factors which may be relevant for the determination of whether the dumped imports have caused material injury or are threatening to cause injury. In demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by a Community industry, attention should be given to the effect of other factors and in particular prevailing market conditions in the Community.’

4 Article 3 of the basic regulation, entitled ‘Determination of injury’, provided:

‘1. Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2. A determination of injury shall be based on positive evidence and shall involve an objective examination of both:

(a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and

3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Community. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Community industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of these factors can necessarily give decisive guidance.

5. The examination of the impact of the dumped imports on the Community industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity; factors affecting Community prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Community industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material.

5 The background to the dispute was set out by the General Court, in paragraphs 1, 7 to 9 and 11 to 14 of the judgment under appeal, in the following terms:

‘1 The applicants, Caviro Distillerie ..., Distillerie Bonollo ..., Distillerie Mazzari ... and [ICV], are EU producers of tartaric acid representing more than 25% of the total production of that substance.

7 On 21 October 2014 the applicants lodged another anti-dumping complaint with the [European] Commission, in consequence of which, on 4 December 2014, that institution published in the Official Journal of the European Union a notice of initiation of an anti-dumping proceeding concerning imports of tartaric acid originating in the People’s Republic of China, limited to one Chinese exporting producer, Hangzhou Bioking [Biochemical Engineering Co. Ltd (“Hangzhou Bioking”)] (OJ 2014 C 434, p. 9).

8 For the purpose of assessing the dumping and injury, the Commission examined the period from 1 October 2013 to 30 September 2014 ... With respect to the trends relevant for the injury assessment, the Commission analysed data covering the period from 1 January 2011 to 30 September 2014 (“the period considered”).

9 In the notice of initiation of 4 December 2014, the Commission stated that it had selected a provisional sample of EU producers, in accordance with Article 17 of the basic regulation. ... The three producers included in the provisional sample were two of the applicants, namely Caviro Distillerie and Distillerie Mazzari, established in Italy, and a Spanish company, Comercial Quimica Sarasa.

11 During the investigation, the three companies included in the sample [and Hangzhou Bioking] were subject to verification visits at their premises ...

12 On 14 December 2015 the Commission sent the applicants a general disclosure document in which it concluded that, despite the existence of a dumping margin of 42.8%, the imports from Hangzhou Bioking were not causing material injury to the Union industry. By letter of 4 January 2016, the applicants submitted their observations on that document. They also requested a hearing, which took place on 13 January 2016.

13 Following the dumping investigation, the Commission adopted [the decision at issue], in which it concluded that the Union industry had not suffered any material injury within the meaning of Article 3 of the basic regulation.

14 Indeed, in recitals 140 and 141 of the [decision at issue], the Commission observed that injury indicators such as production, sales volume and market share showed negative trends during the period considered, but that those trends had not had a negative impact on the overall financial situation of the Union industry. The Commission considered that, on the contrary, some indicators such as the Union industry’s profitability, cash flow, return on investment and employment had displayed a positive trend during the period considered. The Commission emphasised that, while recognising that the Union industry had, to a certain extent, been negatively impacted by the dumped imports from Hangzhou Bioking, the investigation had not established that the Union industry had suffered material injury within the meaning of Article 3 of the basic regulation. Consequently, by Article 1 of the [decision at issue] the Commission terminated the anti-dumping proceeding concerning imports into the European Union of tartaric acid produced by Hangzhou Bioking.’

6 By application lodged at the General Court Registry on 4 May 2016, the appellants sought annulment of the decision at issue.

7 The parties presented oral argument and answered the questions put to them by the General Court at the hearing on 28 September 2017.

8 As is stated in paragraph 19 of the judgment under appeal, at that hearing, the Commission informed the General Court that it was not in a position to make certain information requested public because of its confidential nature. Subsequently, pursuant to Article 91(b), Article 92(3) and Article 103 of its Rules of Procedure, the General Court, having examined that information, concluded that it was relevant in order for it to rule in the case and that it could not remain confidential vis-à-vis the appellants. As the Commission had not requested confidential treatment of that information vis-à-vis the public, the General Court made that information public and heard the observations of the parties regarding that information.

9 In support of their action, the appellants raised two pleas in law, alleging, first, a manifest error of assessment by the Commission in selecting the sample of producers and infringement of Article 3(2) and Article 17(1) of the basic regulation, and, second, manifest errors of assessment and infringement of Article 3(2), (3) and (5) of the basic regulation inasmuch as the Commission concluded that the Union industry had not suffered material injury.

10 By the judgment under appeal, the General Court rejected both pleas in law and consequently dismissed the action in its entirety.

– set aside the judgment under appeal to the extent that the General Court wrongly substituted its own reasoning for that of the Commission when evaluating the second plea raised in the appellants’ application;

– set aside the judgment under appeal on the grounds that it manifestly distorted the evidence put before the General Court in respect of the evolution and final situation of market share of the Union industry;

– uphold the appellants’ second plea in law, concerning the General Court’s defective evaluation of the market share situation, and exercise its powers to adjudicate itself on this plea and render final judgment;

– in the alternative, refer the case back to the General Court in order for it to properly decide upon the appellants’ plea on this point;

– confirm that the General Court made a manifest error of assessment and infringed Article 3(2) and (5) of the basic regulation when it ruled that the Commission did not make any manifest error of assessment when adopting its findings relating to material injury;

– confirm that the General Court’s reasoning in the judgment under appeal was insufficient and contradictory; and

– order the Commission to pay the costs incurred by the appellants in the present proceedings and in the proceedings at first instance.

12 The Commission contends that the Court should dismiss the appeal as being manifestly inadmissible and, in any event, unfounded, and order the appellants to pay the costs.

13 In support of their appeal, the appellants put forward three grounds of appeal, alleging, first, that the General Court erred in law by substituting its own reasoning for that of the Commission and/or manifestly distorted the evidence produced before it; second, that the General Court made a manifest error of assessment and infringed Article 3(2) and (5) of the basic regulation; and, third, that the General Court failed to fulfil its obligation to state reasons (first limb) and that the General Court engaged in contradictory reasoning (second limb).

14 As a preliminary point it should be noted, in the first place, that, by reason of the settled case-law of the Court, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine (judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 63 and the case-law cited).

15 This broad discretion covers, inter alia, the determination of the existence of injury caused to the Union industry in the context of an anti-dumping proceeding. 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 (judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46 and the case-law cited).

16 The Court of Justice has also held that the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see, in particular, judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 64).

17 Moreover, in reviewing the legality of acts under Article 263 TFEU, the Court of Justice and the General Court cannot under any circumstances substitute their own reasoning for that of the author of the contested act (see, in particular, judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 56).

18 In the second place, it is appropriate to recall the various provisions of Article 3 of the basic regulation on determination of injury caused to the Union industry and the case-law relating thereto, which may be summarised as follows.

19 The objective examination regarding the determination of injury caused to the Union industry, provided for in Article 3(2) of the basic regulation, must relate, first, to the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products, and, second, to the consequent impact of those imports on the Union industry (judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 52).

20 Thus, as regards the determination of that volume or those prices, Article 3(3) of the basic regulation sets out the factors to be taken into account in that examination, while specifying that one or more of those factors cannot in themselves give decisive guidance (judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 53 and the case-law cited).

21 The same is true with respect to the impact of the dumped imports on the Union industry. It follows from Article 3(5) of the basic regulation that the EU institutions have the task of evaluating all relevant economic factors and indices which have a bearing on the state of that industry, and one or more of those factors does not necessarily give decisive guidance. That provision thus gives those institutions discretion in the examination and evaluation of the various items of evidence (judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 54 and the case-law cited).

22 Finally, with respect to the causal link, under Article 3(6) of the basic regulation the EU institutions must demonstrate that the volume and/or price levels identified pursuant to Article 3(3) 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 (judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 55).

23 In the present case, in recitals 87 and 88 of the decision at issue the Commission identified a dumping margin of 42.8%, but concluded, in recitals 140 to 142 of that decision, that the Union industry had not suffered material injury.

24 For the purposes of determining injury, the Commission examined the economic situation of the Union industry on the basis of an evaluation of each of the relevant factors referred to in Article 3(5) of the basic regulation which it subdivided into a series of ‘macroeconomic’ indicators, including market share of the Union industry, examined in recitals 111 to 123 of the decision at issue, and a series of ‘microeconomic’ indicators, including profitability, cash flow, investments and return on investments of that industry (‘profitability’), examined in recitals 124 to 139 of that decision.

25 In particular, in recital 117 of the decision at issue, the Commission concluded from a table set out in recital 115 of that decision and containing indexed values that ‘the market share held by the Union industry decreased throughout the period considered and overall fell by 21%’.

26 In recital 140 of the decision at issue, the Commission included that market share among the ‘injury indicators [showing] negative trends during the period considered’. In recital 141 of that decision, the Commission recognised that certain elements, including the loss of market share, indicated that the Union industry had been ‘to a certain extent negatively impacted’ by the dumped imports concerned.

27 Again in recital 141, the Commission concluded that there was nevertheless no material injury, within the meaning of Article 3 of the basic regulation, mainly on the basis of the fact that all the financial indicators, in particular profitability, showed positive trends and that the Union industry had been able to increase prices to a greater extent than its production cost, despite the dumped import prices that had undercut the Union industry prices.

28 Having thus concluded that there was no material injury, the Commission addressed the comments which it had received from interested parties.

29 In that context, the Commission noted in recital 147 of the decision at issue that those parties had, in particular, maintained that the 21% decrease in sales and market share of the Union industry over the period considered was a clear indication of material injury.

30 The Commission responded to that as follows in recital 148 of the decision at issue:

‘Indeed, the investigation showed an increase of volumes and market shares of imports made by [Hangzhou] Bioking. However the market share of the Union industry remained at a relatively high level in the period considered. Nevertheless, market share and import volumes are not the only elements that have been analysed in order to establish whether the Union industry suffered material injury or not. As noted in recital 144 above, in line with Article 3(5) of the basic Regulation, the Commission made an assessment of all economic indicators having a bearing on the state of the Union industry, none of them being given prominence over the others. The argument was therefore rejected.’

31 Following a measure of inquiry by the General Court, it became apparent that the Union industry’s market share, which the decision at issue indicated had decreased by 21% over the period considered, was 44% at the end of that period. In other words, over that period, the Union industry’s market share had fallen from 65% to 44%.

32 That led the General Court to state the following in the last sentence of paragraph 98 of the judgment under appeal:

‘The Commission could not therefore reasonably consider, in recital 148 of the [decision at issue], that that market share had remained at a relatively high level during the period considered.’

33 That statement is then recalled in paragraph 112 of the judgment under appeal, in which the General Court concluded that ‘the Commission, despite its evaluation of the Union industry’s market share (see paragraph 98 above), did not commit any manifest error of assessment in its overall determination of material injury on the basis of all the factors relied on in the context of the second plea in law’.

34 By their first ground of appeal, the appellants submit that the General Court erred in law by substituting its own reasoning for that of the Commission and/or by distorting the evidence, in that the General Court first of all found, in paragraph 98 of the judgment under appeal, that the decision at issue was vitiated by a manifest error of assessment with regard to the development of the Union industry’s market share, and then itself evaluated the significance of that factor in concluding, in paragraph 112 of that judgment, that it did not influence the assessment that there was no material injury.

35 The Commission contends that the first ground of appeal is inadmissible since the appellants’ arguments seek to call into question the factual assessments made by the General Court, without showing a substantive error or distortion of the evidence.

36 In its submission this ground of appeal is, moreover, inoperative inasmuch as, by questioning only the relevance of the General Court’s finding in relation to the market share, and irrespective of the merits of their arguments, the appellants are attempting to ensure that decisive guidance is given by that isolated injury factor, in breach of the basic regulation and the case-law relating thereto.

37 As to the substance of the first ground of appeal, the Commission maintains that, in their appeal, the appellants do not identify any error of law made by the General Court, but repeat their own attempt to substitute their own assessment for that of the Commission, and now for that of the General Court.

38 As regards the first ground of appeal, it is the case, as the Commission submits, that, in the judgment under appeal, the General Court did not expressly indicate that the Commission made a manifest error of assessment with respect to the evaluation of the Union industry’s market share when it stated, in recital 148 of the decision at issue, that that market share had remained at ‘a relatively high level in the period considered’.

39 In paragraph 98 of the judgment under appeal, the General Court indicated only that the Commission ‘could not ... reasonably consider’ that that was the case and, in paragraph 112 of that judgment, the General Court merely referred to that paragraph 98 as an ‘evaluation’ by the Commission of that market share.

40 That said, it is not clear, having regard to the principles governing the General Court’s limited judicial review in respect of the broad discretion enjoyed by the EU institutions over the determination of injury caused to the Union industry, recalled in paragraphs 14 and 15 of the present judgment, that the error identified in paragraph 98 of the judgment under appeal comes within one of the categories of error that may be penalised by the General Court in the context of that limited judicial review, and in particular within the category of manifest error of assessment of the facts relied on.

41 The error identified concerns an assessment of the facts and did not clearly relate to verification as to whether relevant procedural rules were complied with, whether the facts relied on were accurately stated or whether there had been a misuse of powers.

42 Even on the assumption that, in paragraph 98 of the judgment under appeal, the General Court implicitly found that there was a manifest error of assessment in so far as the Commission asserted, in recital 148 of the decision at issue, that the Union industry’s market share had ‘remained at a relatively high level in the period considered’, when it had fallen from 65% to 44% over that period, the General Court cannot be accused of having substituted its own reasoning for that of the Commission and/or of having distorted the evidence in ruling, in paragraph 112 of the judgment under appeal, that, despite that erroneous evaluation, the Commission did not make any manifest error of assessment in the overall evaluation of material injury that led it to conclude that there was no such injury.

43 In accordance with the principles laid down by the case-law recalled in paragraphs 14 to 16 and 21 of the present judgment, the General Court, respecting the limits of its judicial review of the determination of injury, correctly verified whether, in accordance with Article 3(5) of the basic regulation, the Commission, without making a manifest error of assessment, evaluated all relevant economic factors and indices having a bearing on the state of the Union industry while not concluding that any one or more of those factors can give decisive guidance.

44 In paragraph 91 of the judgment under appeal, the General Court, without erring in law, was able to infer from the conclusion reached in recital 140 of the decision at issue from the evaluation of macroeconomic factors in recitals 111 to 123 of that decision, including the market shares of the Union industry, and from the evaluation of microeconomic factors in recitals 124 to 139 of that decision, including profitability, that, against the background of the broad discretion which the Commission has in this case when assessing economic data in the context of the determination of injury pursuant to Article 3 of the basic regulation, the Commission had examined the relevance of all the factors and weighed up the positive and negative trends of the factors in question.

45 It must be recalled in that regard that, in the conclusion in recitals 140 and 141 of the decision at issue, the 21% fall in the Union industry’s market share, noted in recital 117 of that decision, was expressly taken into account as a ‘negative trend’, or as a factor that ‘to a certain extent negatively impacted’ the Union industry.

46 However, in the context of the overall evaluation and weighing up of all relevant economic factors and indices having a bearing on the state of the Union industry, an analysis that must be carried out in accordance with Article 3(5) of the basic regulation, the Commission found, in recitals 140 and 141 of the decision at issue, that certain factors and indices showing positive trends, in particular those relating to profitability and the financial situation of that industry, had to outweigh the negative trends already noted and thus tipped the balance in favour of concluding that that industry had not suffered material injury.

47 Having found that, in the decision at issue, the Commission had correctly carried out an overall evaluation and weighing up of all relevant economic factors and indices having a bearing on the state of the Union industry, the General Court was entitled, without thereby erring in law, to rule in paragraph 112 of the judgment under appeal that, despite the Commission’s evaluation of the Union industry’s market share, it had not made any manifest error of assessment in concluding that there was no material injury to the Union industry.

48 In that regard, paragraph 112 of the judgment under appeal must be understood as meaning that the Commission’s error in recital 148 of the decision at issue with regard to the evaluation of the Union industry’s market share cannot call into question the overall conclusion reached by the Commission, following an examination of all the economic indicators, with the result that the Commission was entitled to conclude that there was no injury to the Union industry (see, by analogy, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraphs 64 and 69).

50 First, it is apparent from the actual wording of Article 3(5) of the basic regulation that no one or more of the factors mentioned in that provision can necessarily give decisive guidance.

51 Second, it is common ground that, in the overall evaluation of all relevant indices and factors required by that provision, the Commission did, in the present case, take account of the overall fall of 21% in the Union industry’s market share as a negative trend, even though, in the second stage of its analysis, it considered it necessary to add — erroneously, according to the General Court — that that market share, which had fallen from 65% to 44% over the period considered, had remained at a ‘relatively high level’. That error therefore, in any event, affected only part of the evaluation of the relevant factor of market share and could thus have had only a relative impact on the Commission’s overall assessment.

52 That is confirmed by recital 148 of the decision at issue inasmuch as the Commission states in that recital that market share and import volumes are not the only elements analysed in order to establish whether the Union industry suffered material injury or not and, as already noted in recital 144 of that decision, the Commission made an assessment of all economic indicators having a bearing on the state of the Union industry, none of them being given prominence over the others, in line with Article 3(5) of the basic regulation.

53 This is not, therefore, a case of the General Court having made a new assessment of the facts replacing that made by the Commission in the context of the latter’s broad discretion in the field of commercial policy, contrary to the principle laid down by the case-law and recalled in paragraph 16 of the present judgment, nor is it a case of substitution by the General Court, in reviewing the legality of acts under Article 263 TFEU, of its own reasoning for that of the author of the contested act, contrary to the principle also laid down by the case-law and recalled in paragraph 17 of the present judgment.

54 Nor, moreover, in arriving at the conclusion reached in paragraph 112 of the judgment under appeal, did the General Court distort the facts or evidence; rather, it respected the terms and sequence of the analysis of injury as set out in the decision at issue.

55 In that regard, it is apparent from the settled case-law of the Court that, if any distortion of facts and evidence is relied on by the appellant, the distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of those matters (see, in particular, judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 62).

56 There is distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. It is for the appellant relying on distortion to indicate precisely the evidence which has been distorted and show the errors of appraisal which have allegedly been made (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 70 and the case-law cited).

57 In the light of that case-law, it must be noted that the appellants have not indicated precisely which evidence has allegedly been distorted.

58 In view of the foregoing, the first ground of appeal must be rejected as unfounded.

59 By their second ground of appeal, the appellants claim that the General Court made a manifest error of assessment when it ruled, in paragraph 98 of the judgment under appeal, that the Commission had not made any manifest error of assessment, in that, by so doing, the General Court implicitly dismissed the significance of its own findings relating to the evolution and situation of the Union industry’s market share. Moreover, in their submission, the General Court infringed Article 3(2) and (5) of the basic regulation by facilitating a determination that did not involve an objective examination of the injury indicators, notably the elements concerning the Union industry market share evolution.

60 The Commission contests that ground of appeal which is based on the erroneous premiss that the General Court found that the Commission made a manifest error of assessment. By that argument, the appellants are, it contends, distorting the General Court’s findings with a view to obtaining a new assessment by the Court of Justice of the facts and the evidence. Such a request is inadmissible. In any event, this ground of appeal is, in the Commission’s submission, unfounded.

61 It must be noted that the second ground of appeal is based on the premiss that, in paragraph 98 of the judgment under appeal, the General Court ruled that the Commission had not made a manifest error of assessment. That premiss conflicts with the argument put forward by the appellants in the context of the first ground of appeal, according to which, in paragraph 98 of the judgment under appeal, the General Court found that the Commission did make a manifest error of assessment.

62 As has already been stated in paragraphs 38 to 41 of the present judgment, although, in paragraph 98 of the judgment under appeal, the General Court did not explicitly characterise the Commission’s error as a ‘manifest error of assessment’, that characterisation could follow implicitly from the same paragraph 98 interpreted in the light of the limits on the General Court’s power of review in the context of the Commission’s determination of whether there is an injury for the purposes of the application of Article 3 of the basic regulation.

63 Furthermore, the second ground of appeal criticises paragraph 112 of the judgment under appeal rather than paragraph 98 thereof in that it seeks to call into question the General Court’s assessment of the legality of the decision at issue in terms of the weight to be attached to the error of assessment, potentially characterised as ‘manifest’, made by the Commission in recital 148 of that decision when evaluating the Union industry’s market share.

64 However, in so far as paragraph 112 of the judgment under appeal must be interpreted as meaning that, according to the General Court, that error, which only partially affects the market share factor already taken into account by the Commission as a negative trend, was not sufficiently significant to call into question the overall conclusion reached by the Commission after it had assessed and weighed up all relevant factors and indices, that paragraph contains an essentially factual assessment.

65 In essence, the General Court ruled, on the basis of the facts put forward for assessment, that the Commission did not err in law in finding, in the context of an overall examination, that while certain factors, including the decrease in the Union industry’s market share, indicated that that industry had suffered some injury, it was not a material injury, since those factors had to be weighed against other factors such as profitability and the financial situation which showed positive trends for that industry.

66 It should be recalled that, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).

67 Since the appellants have neither established, nor even alleged, any such distortion in the present case, their argument is inadmissible.

68 The appellants further submit that the General Court made a manifest error of assessment by confirming the Commission’s underpinning notion that the sizeable relative and actual 21% loss of market share by the Union industry during the period considered was compensated in some way by the allegedly relatively high market share held by the Union industry at the end of that period which allowed the Union industry to continue to perform adequately, whereas, as was subsequently established, the suggestion that that market share was relatively high was incorrect, since it was only in the order of 44%. Thus, the full impact of the loss of market share was not correctly assessed or taken into account in the overall injury assessment. Accordingly, in the appellants’ submission, the General Court also infringed Article 3(2) and (5) of the basic regulation.

69 That argument must be rejected since it is based on a misreading of the decision at issue.

70 As has already been noted in paragraph 48 of the present judgment, the General Court found, in paragraph 112 of the judgment under appeal, following an in-depth examination of the decision at issue, that when the Commission made the overall evaluation and weighed up all relevant factors and indices as required under Article 3(5) of the basic regulation, it duly took into account the factor relating to the development of the Union industry’s market share as a negative trend and considered that the Commission’s limited error in its subsequent assessment of that factor taken in isolation was not sufficiently significant to call into question the conclusion reached by the Commission following that overall evaluation and weighing up.

71 Contrary to the appellants’ submission, the decision at issue cannot, therefore, be understood as meaning that it was based on an ‘underpinning notion’ of the Commission that the sizeable relative and actual 21% loss of market share by the Union industry over the period considered was in some way ‘compensated’ by the allegedly relatively high market share held by the Union industry at the end of that period.

72 Accordingly, in the context of its limited judicial review, the General Court was entitled to rule, without thereby erring in law, that the Commission did not infringe Article 3(2) and (5) of the basic regulation by finding, after an overall examination and weighing up of all relevant factors and indices, that there was no material injury.

73 In view of the foregoing, the second ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.

74 By the first limb of their third ground of appeal, the appellants claim that the General Court failed to fulfil its obligation to state reasons in that it did not explain why the existence of a manifest error of assessment, established in paragraph 98 of the judgment under appeal, did not justify the annulment of the decision at issue requested by the appellants. No such effective reasoning on the part of the General Court is apparent in either paragraphs 98 and 112 of the judgment under appeal or anywhere else in that judgment.

75 The Commission counters that that first limb is based on the erroneous premiss that the General Court found that there was a manifest error of assessment. Since no such finding of manifest error of assessment was made by the General Court, it was not required to give reasons as to why the error did not lead it to annul the decision at issue.

76 The appellants’ line of argument is inadmissible, according to the Commission, in that it merely challenges the General Court’s findings without explaining in what respect the General Court failed to provide an adequate statement of reasons for the judgment under appeal, and is, in any event, unfounded.

77 The Court of Justice has consistently held that the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 54).

78 However, the obligation to state reasons does not require the General Court to provide an account which responds exhaustively and one by one to all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 55).

79 In the present case, it must be held that, in ruling, in paragraph 112 of the judgment under appeal, that the appellants had not put forward evidence to challenge the Commission’s conclusion, based on all the relevant factors, that there was no material injury to the Union industry, and that it therefore had to be concluded that the Commission, despite its erroneous evaluation of the Union industry’s market share, had not committed any manifest error of assessment in its overall determination of material injury on the basis of all the factors relied on in the context of the second plea in law, the General Court gave sufficient reasons for its decision not to annul the decision at issue as a result of that evaluation.

80 Thus, the General Court provided an — admittedly succinct — statement of reasons for that decision, since it is apparent from the judgment under appeal that it found, after an in-depth examination of the decision at issue, that when the Commission had made the overall evaluation and weighed up all relevant factors and indices as required under Article 3(5) of the basic regulation, it had duly taken into account the factor relating to the development of the Union industry’s market share as a negative trend and considered that the Commission’s limited error in its subsequent assessment of that factor taken in isolation was not sufficiently significant to call into question the conclusion reached by the Commission following that overall evaluation and weighing up.

81 The first limb of the third ground of appeal must therefore be rejected as unfounded.

82 By the second limb of their third ground of appeal, the appellants complain that the General Court rejected their second plea on the basis of contradictory reasoning as, on the one hand, the General Court found, in paragraph 98 of the judgment under appeal, that there was an error of assessment that was both significant and profound and which, according to the appellants, in itself justified the annulment of the decision at issue, and, on the other hand, in paragraph 112 of the judgment under appeal, the General Court dismissed the relevance of that finding despite its own extensive efforts to establish the truth of the matter.

83 The Commission maintains that this second limb, based on the false premiss that the General Court found a manifest error of assessment to exist, is inadmissible since the appellants do not identify any error of law and are in fact seeking to have the application submitted at first instance re-examined by the Court of Justice.

84 As to the merits, the Commission contends that there is no contradiction between paragraph 98 and paragraph 112 of the judgment under appeal.

85 In paragraph 112 of the judgment under appeal, the General Court took into account the Commission’s erroneous evaluation as referred to in paragraph 98 of that judgment, albeit without describing it as ‘significant’ or ‘profound’, but considered that error not to be sufficiently significant to call into question the overall assessment and weighing up by the Commission of all relevant factors and indices in accordance with Article 3(5) of the basic regulation that led it to conclude that the Union industry had not suffered material injury.

86 Paragraphs 98 and 112 of the judgment under appeal do not, therefore, show that the General Court engaged in contradictory reasoning.

87 The second limb of the third ground of appeal must therefore be rejected as unfounded.

88 Accordingly, both limbs of the third ground of appeal must be rejected as unfounded.

90 Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

91 As the Commission has applied for costs against Caviro Distillerie, Distillerie Bonollo, Distillerie Mazzari and ICV, and the latter have been unsuccessful, they must be ordered to pay the costs.

2. Orders Caviro Distillerie Srl, Distillerie Bonollo SpA, Distillerie Mazzari SpA and Industria Chimica Valenzana (ICV) SpA to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Caviro Distillerie and Others v Commission (Dumping - Imports of tartaric acid originating in China - Judgment) [2019] EUECJ C-345/18P (10 July 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C34518P.html Cite as: ECLI:EU:C:2019:589, EU:C:2019:589, [2019] EUECJ C-345/18P

Court of Justice of the European Communities (including Court of First Instance Decisions)