Guangxi Xin Fu Yuan v Commission (Dumping – Imports of ceramic tableware and kitchenware originating in China - Judgment) [2022] EUECJ T-144/20 (08 June 2022)

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(Dumping – Imports of ceramic tableware and kitchenware originating in China – Review investigation – Circumvention – Article 13 of Regulation (EU) 2016/1036 – Related companies – Procedural obligations – Article 5(10) and (11) of Regulation 2016/1036 – Articles 6.1, 6.2 and 12.1 of the Anti-Dumping Agreement – Rights of the defence – Equal treatment – Legitimate expectations – Manifest error of assessment)

Guangxi Xin Fu Yuan Co. Ltd, established in Bobai (China), represented by J. Cornelis and T. Zuber, lawyers,

European Commission, represented by P. Němečková and M. Gustafsson, acting as Agents,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2019/2131 of 28 November 2019 amending Implementing Regulation (EU) 2019/1198 imposing a definitive anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2019 L 321, p. 139),

composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and P. Zilgalvis, Judges,

having regard to the written part of the procedure and further to the hearing on 14 October 2021,

1 The applicant, Guangxi Xin Fu Yuan Co. Ltd., is a company incorporated under Chinese law that produces and exports ceramic tableware and kitchenware.

2 On 16 February 2012, following a complaint lodged on behalf of EU producers, the European Commission initiated an anti-dumping proceeding concerning imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2012 C 44, p. 22) (‘the initial investigation’).

3 The initial investigation led to the adoption of Commission Regulation (EU) No 1072/2012 of 14 November 2012 imposing a provisional anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2012 L 318, p. 28), followed by Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2013 L 131, p. 1).

4 The applicant cooperated in the initial investigation and, to that end, alongside three other Chinese companies, submitted a consolidated reply to the sampling form provided by the Commission. The companies in question were Shenzhen Worthyway Fine Porcelain Co. Ltd, which specialised in the export of ceramic tableware and kitchenware manufactured by its shareholders (‘Shenzhen Worthyway’), Evershine Fine China Co., Ltd, which produced high-end ceramic tableware and marketed it both on the domestic market and abroad (‘Evershine’), and Guangxi Beiliu XinFuYuan Porcelain Co. Ltd, which produced low-end ceramic tableware sold only on the domestic market. In that consolidated reply it was stated that the applicant was owned mainly by A, who had a shareholding of 71.25%, as well as by other individual shareholders. It was also stated that Shenzhen Worthyway was owned in equal shares by two persons who were sons of A, namely B and C. It was further stated that Evershine was 30% owned by Shenzhen Worthyway and 70% owned by Worthyway GEN.TRD.L.L.C, a company with its registered office in Dubai (United Arab Emirates), the shareholders of which were D (51%), B (one of A’s sons) (46%), and E (3%).

5 Under Article 1(1) of Implementing Regulation No 412/2013, ‘a definitive anti-dumping duty is hereby imposed on imports of ceramic tableware and kitchenware, excluding ceramic knives, ceramic condiment or spice mills and their ceramic grinding parts, ceramic peelers, ceramic knife sharpeners and cordierite ceramic pizza-stones of a kind used for baking pizza or bread, currently falling within CN codes ex 6911 10 00, ex 6912 00 10, ex 6912 00 30, ex 6912 00 50 and ex 6912 00 90 (TARIC codes 6911100090, 6912001011, 6912001091, 6912003010, 6912005010 and 6912009010) and originating in the [People’s Republic of China]’.

6 In accordance with Article 1(2) of Implementing Regulation No 412/2013, individual anti-dumping duties ranged from 13.1 to 23.4%. Under that same provision, a definitive anti-dumping duty rate of 17.9% was imposed on the applicant and Evershine, like all the non-sampled cooperating Chinese exporting producers listed in Annex 1 to that regulation. The applicant received, on that basis, the TARIC additional code B588 and individual TARIC codes. The other exporting producers were subject to the residual duty rate of 36.1%.

7 On 12 August 2017, the Commission announced, by a notice published in the Official Journal (OJ 2017 C 268, p. 5), that, in accordance with the provisions of Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic regulation’), unless a review was carried out in accordance with the procedure set out in that notice, the anti-dumping measures imposed by Implementing Regulation No 412/2013 would expire on 16 May 2018.

8 On 15 May 2018, in the light of the EU producers’ request to that effect, the Commission announced the initiation of an expiry review of the anti-dumping measures provided for in Implementing Regulation No 412/2013, in accordance with Article 11(2) of the basic regulation (OJ 2018 C 167, p. 6).

9 The applicant replied individually to the sampling form provided by the Commission in the context of the review procedure (‘the second investigation’). In its reply to that form, the applicant specified, inter alia, its activities and those of the companies related to it within the meaning of Article 127 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ 2015 L 343, p. 558), namely Shenzhen Worthyway and Evershine. The applicant also stated in its reply that it was still 71.25% owned by A and that Shenzhen Worthyway was also still held in equal shares by B and C. It was also stated in that reply that, although Evershine was still 30% owned by Shenzhen Worthyway, it was now also 70% owned by One And Only Trade Co. Limited, the latter being 49% owned by B and 51% owned by C.

10 On 12 July 2019, the Commission adopted Implementing Regulation (EU) 2019/1198 imposing a definitive anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) No 2016/1036 (OJ 2019 L 189, p. 8). By that regulation, the Commission extended the anti-dumping measures imposed by Implementing Regulation No 412/2013 and maintained the duty rate and individual TARIC codes applied to the applicant and Evershine.

11 When examining the data gathered during the second investigation, the Commission analysed the available evidence relating to the patterns and channels of sales of ceramic tableware and kitchenware since the imposition of anti-dumping measures by Implementing Regulation No 412/2013. The Commission noted that the comparison of the export figures for 2014 and 2018 revealed a sharp rise or fall in the exports of certain exporting producers, which constituted an indicator of channelling practices. In addition, the Commission noted that, in some cases, certain exporting producers’ actual exports exceeded their declared production. The issue of the misuse of company-specific TARIC additional codes also arose. The Commission concluded that it was apparent from those indicators that certain companies that were subject to a high individual duty rate or to the residual duty rate of 36.1% were selling their ceramic tableware and kitchenware through other exporting producers that were subject to a lower duty. The Commission also observed that those practices appeared to lead to a change in the pattern of trade concerning exports of ceramic tableware and kitchenware originating in China after the imposition of anti-dumping measures by Implementing Regulation No 412/2013, without sufficient due cause or economic justification other than the imposition of the duty.

12 On 7 March 2019, the Commission drafted a note attached to the file on the ex officio initiation of an investigation into circumvention of the anti-dumping measures applicable to imports of ceramic tableware and kitchenware originating in China. In that note, the Commission set out two indicators of channelling of the product subject to the anti-dumping measures imposed by Implementing Regulation No 412/2013. The first indicator was the fact that various companies which were subject to the duty of 17.9% and which exported 330 tonnes or more to the European Union in 2018 had increased their exports by more than 210% in volume during the period from 2014 to 2018. The second indicator was the fact that the export figures of certain companies exceeded their declared production capacity on the basis of their replies to the sampling form issued in the context of the expiry review of the anti-dumping measures imposed by Implementing Regulation No 412/2013. In that same note, the Commission stated that it had been informed of ongoing investigations by the customs authorities regarding misuse of individual TARIC codes. The Commission stated that, on the basis of those indicators and that information, it considered that it had sufficient evidence of channelling practices, for the purposes of Article 13(1) of the basic regulation, as regards 50 companies. The companies in question included Evershine and Shenzhen Worthyway, but not the applicant.

13 On 21 March 2019, the Commission adopted Implementing Regulation (EU) 2019/464 initiating an investigation concerning possible circumvention of anti-dumping measures imposed by Implementing Regulation No 412/2013, and making such imports subject to registration (OJ 2019 L 80, p. 18) (‘the initiating regulation’).

14 Article 1 of the initiating regulation provides that ‘an investigation is initiated pursuant to Article 13(3) of [the basic regulation], in order to determine if imports into the Union of ceramic tableware and kitchenware, excluding ceramic condiment or spice mills and their ceramic grinding parts, ceramic coffee mills, ceramic knife sharpeners, ceramic sharpeners, ceramic kitchen tools to be used for cutting, grinding, grating, slicing, scraping and peeling, and cordierite ceramic pizza-stones of a kind used for baking pizza or bread, currently falling under CN codes ex 6911 10 00, ex 6912 00 21, ex 6912 00 23, ex 6912 00 25 and ex 6912 00 29 (TARIC codes 6911100090, 6912002111, 6912002191, 6912002310, 6912002510 and 6912002910) and originating in the People’s Republic of China, imported under the TARIC additional codes listed in [the] Annex, are circumventing the measures imposed by [Implementing Regulation No 412/2013]’.

15 The first paragraph of Article 2 of the initiating regulation provides that, pursuant to Article 13(3) and Article 14(5) of the basic regulation, customs authorities are to take the appropriate steps to register imports into the European Union declared under the TARIC additional codes listed in the annex to the initiating regulation.

16 That annex contains a table which sets out a list of 50 TARIC additional codes, the identity of the companies to which those codes corresponded, and the duty rate to which imports from those companies were subject. That list contains Evershine’s TARIC additional code, B514, as well as its company name and the duty rate of 17.9% imposed on it by Implementing Regulation No 412/2013. The applicant’s TARIC additional code does not appear on that list.

‘1. Interested parties must make themselves known by contacting the Commission within 15 days from the date of entry into force of this Regulation.

2. Interested parties, if their representations are to be taken into account during the investigation, must present their views in writing and submit questionnaire replies or any other information within 37 days from the date of the publication of this Regulation in the Official Journal of the European Union, unless otherwise specified.

3. Interested parties may also apply to be heard by the Commission within the same 37-day time limit.

18 In that regard, recitals 13 and 14 of the initiating regulation state that, in order to obtain information it deems necessary for its investigation, the Commission will send questionnaires to the exporting producers listed in the annex, but that, in any event, all interested parties should contact the Commission forthwith, but not later than the time limit set in Article 3(1) of that regulation, and that the time limit laid down in Article 3(2) of that regulation applies to all interested parties.

19 According to recital 16 of the initiating regulation, ‘all interested parties including the Union industry, importers and any relevant association are invited to make their views known in writing and to provide supporting evidence provided that such submissions are made within the deadline provided for in Article 3(2). Furthermore, the Commission may hear interested parties, provided that they make a request in writing and show that there are particular reasons why they should be heard’.

20 Recital 20 of the initiating regulation states that the exercise of procedural rights set out in the basic regulation depends on the party making itself known within the time limits laid down in Article 3 of that regulation.

21 According to recital 21 of the initiating regulation, ‘if any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made on the basis of facts available in accordance with Article 18 of the basic regulation’.

22 It was stated in recital 24 of the initiating regulation that, pursuant to Article 13(3) of the basic regulation, the investigation would be concluded within nine months of the date of entry into force of that regulation.

23 Furthermore, Article 2 of the initiating regulation provides that, pursuant to Article 13(3) and Article 14(5) of the basic regulation, customs authorities are to take the appropriate steps to register the imports into the European Union declared under the TARIC additional codes listed in the annex to the initiating regulation and that that registration is to expire nine months after the date of entry into force of that regulation.

24 The Commission’s questionnaire stated that the investigation period ran from 1 January 2015 to 31 December 2018; it also contained various questions. One of the questions concerned the organisation of the group of which Evershine was a member. Evershine was thus asked to provide a diagram of that group detailing the world-wide corporate structure of that group and its affiliations, including parent companies, subsidiaries or other companies directly or indirectly related to Evershine.

25 On 6 May 2019, Evershine submitted to the Commission its reply to the questionnaire. As regards, in particular, the question relating to the group of which it was a member, Evershine mentioned Shenzhen Worthyway and another company owned by the latter, Liling Taiyu Porcelain Industries Co., Ltd.

26 By letter of 28 May 2019, the Commission informed Evershine that, after examining its reply to the questionnaire, it had found a number of deficiencies as regards the information requested. The Commission observed in particular that, in its reply, Evershine had not provided a complete and accurate picture of all the subsidiaries or related undertakings. It stated that, through the Chinese National Enterprise Credit Information Publicity System, it had been able to identify companies related to Evershine or that were related to it during the investigation period, which were not mentioned in Evershine’s reply to the questionnaire. The Commission stated that those companies were most likely actively operating in the tableware sector as producers or traders and were therefore supposed to submit their own replies to the questionnaire. The related companies identified by the Commission included, inter alia, Guangxi Beiliu XinFuYuan Porcelain Co. Ltd and the applicant.

27 In the same letter, the Commission pointed out that the applicant was considered to be a related company during the investigation period, since it and Shenzhen Worthyway were directly or indirectly owned by members of the same family. The Commission thus stated that the applicant had been mentioned as a related company during the initial investigation and during the second investigation, but that no relationship had been mentioned in the reply submitted in the context of the investigation initiated by the initiating regulation. The Commission observed that the investigation had made it possible to establish the following facts with regard to the applicant:

– Before [5 July 2018], the main shareholder, [A], was the father of the shareholders of [Shenzhen Worthyway], [B] and [C];

– On [5 July 2018], the majority of [the applicant’s shares] (56.25%) were transferred from [A] to [B];

– After the investigation period, on [17 April 2019], [B] transferred his shares [in the applicant]. However, it has been concluded that: 1) the transfer of [those] shares took place several weeks after the initiation of the investigation and after the questionnaire [had been] sent; 2) the preparation of some tables of the questionnaire took place just the day after the transfer of the shares; 3) the share transfer took place after the investigation period, and, consequently, the information requested in the questionnaire concerning related companies should have been provided.’

28 In the same letter, the Commission pointed out that, in accordance with recitals 21 to 23 of the initiating regulation, and as was announced in the questionnaire, it intended to base its findings on the facts available, as permitted by Article 18(1) of the basic regulation where an interested party does not provide the necessary information. The Commission stated that the analysis of the EU customs database showed that the applicant had increased its exports of the product concerned to the European Union from 1 657 tonnes in 2014 to 3 929 tonnes in 2018. The Commission stated in that regard that, in view of the deficiencies identified in Evershine’s reply to the questionnaire, the available evidence at that stage was such as to indicate that there was no economic justification for that increase other than channelling production from other Chinese tableware producers. Lastly, the Commission pointed out that, in accordance with Article 18(4) of the basic regulation, Evershine had the right to provide further explanations as regards that preliminary assessment.

29 By email of 25 June 2019, the applicant informed the Commission that Evershine had sent it its reply to the questionnaire of 6 May 2019, and the Commission’s letter of 28 May 2019, on 17 and 19 June 2019 respectively. In that email, the applicant stated that it had not until then been aware of the investigation initiated by the initiating regulation and asked the Commission to allow it to reply to the questionnaire. The applicant stated that it was prepared to bear the costs of an on-site inspection if the Commission considered such an inspection to be necessary. Furthermore, the applicant maintained that the increase in its production capacity to an average of 12 000 tonnes per year during recent years was sufficient to explain the increase in its export volume. The applicant also claimed that the tableware products manufactured by Evershine were entirely different from those which it produced, both as regards their nature and as regards their respective prices.

30 By email of 9 July 2019, the Commission informed the applicant that since the investigation initiated by the initiating regulation was still ongoing, it could not comment on the results of that investigation and, in particular, on its impact on the anti-dumping duty rate applicable to the applicant. In the same email, the Commission confirmed that the applicant was not on the list of companies annexed to the initiating regulation. It pointed out, however, that the applicant had itself revealed its relationship with Evershine and Shenzhen Worthyway during the initial investigation and the second investigation. The Commission pointed out in that regard that the applicant had revealed not only that it had common shareholders with Evershine and Shenzhen Worthyway, but also that it had commercial dealings with those companies. The Commission also observed that, according to the information in its possession, those relationships between the three companies had continued during the investigation period and that it was only on 17 April 2019, after the anti-circumvention investigation had been initiated, that changes in those relationships had occurred. However, in the absence of clear information and documentation concerning the circumstances and the persons behind the change in the shareholding structure of the applicant, the Commission stated that it would continue to regard that company as related to Evershine and Shenzhen Worthyway for the purposes of the investigation. The Commission asked the applicant to provide it, by 12 July 2019, with any information or documentation concerning the change in its shareholding structure that took place on 17 April 2019.

31 By email of 11 July 2019, the applicant informed the Commission that, on 17 April 2019, B had transferred the shares he held in the applicant to D, his wife, and provided the documents relating to that transfer.

32 By letter of 27 September 2019, the Commission first of all informed the applicant that, in the context of the ongoing investigation, it had informed Evershine that it intended to apply Article 18 of the basic regulation to that company on account of certain deficiencies it had identified and that it had concluded that that company was engaged in circumvention practices. The Commission then informed the applicant that, in view of the latter’s links with Evershine, there was a risk of channelling and that, in order to mitigate that risk, it intended to repeal the applicant’s TARIC additional code and, consequently, to subject it to the residual duty rate of 36.1%. The Commission also informed the applicant that it had the right to contest its relationship with Evershine by submitting its comments to that end by 18 October 2019. Lastly, the Commission reminded the applicant that it could apply to be heard by the Commission services, if it submitted a request to that effect within three days, or by the Hearing Officer for trade proceedings.

33 On the same day, the Commission sent a general disclosure document setting out the reasons for initiating the investigation, how it had been conducted and the findings thereof.

34 On 10 October 2019, the applicant disputed the Commission’s findings at a hearing organised at its request. On 18 October 2019, it also submitted written observations to the Commission concerning the letter of 27 September 2019, in which it claimed that the repeal of its own TARIC additional code was not justified either in fact or in law. It also claimed that there was no risk of inter-company channelling between itself and its related companies. Moreover, it enquired as to what additional guarantees and commitments it could give to allow the Commission to monitor the ceramic tableware manufactured by the company and imported under its company-specific TARIC additional code.

35 On 28 November 2019, the Commission adopted Implementing Regulation (EU) 2019/2131 amending Implementing Regulation 2019/1198 (OJ 2019 L 321, p. 139) (‘the contested regulation’).

36 Article 1(1) of the contested regulation provides that the definitive anti-dumping duty of 36.1% applicable to ‘all other companies’ imposed by Article 1(2) of Implementing Regulation 2019/1198 is, as of Saturday 23 March 2019, extended to imports declared by the companies listed in that first provision and that the TARIC additional codes of those companies, as referred to in Article 1(2) of Implementing Regulation 2019/1198 and Annex I thereto, are to be repealed and replaced by TARIC additional code B999. Evershine is one of the companies listed in Article 1(1) of the contested regulation.

37 Article 1(2) of the contested regulation provides that, because of their relationship to the companies listed in Article 1(1) of that regulation, the definitive anti-dumping duty of 36.1% applicable to ‘all other companies’ imposed by Article 1(2) of Implementing Regulation 2019/1198 is, as of Saturday 23 March 2019, also extended to imports declared by the companies listed in Article 1(2) of the contested regulation and that the TARIC additional codes of those companies, as set out in Annex I to Implementing Regulation 2019/1198, are to be repealed and replaced by TARIC additional code B999. The applicant is one of the companies listed in Article 1(2) of the contested regulation.

38 In recital 47 of the contested regulation, the Commission stated that it had rejected the arguments put forward by the applicant at its hearing on 10 October 2019 and in its written observations of 18 October 2019, as follows:

‘According to the definition of related companies in Article 127 of [Implementing Regulation 2015/2447], the [applicant] is related to [the company] that filled out a highly deficient questionnaire reply ([Evershine]). At the time of the initiation, there was a strong financial tie, and after the divestment of the shareholding shortly thereafter the relationship continued by virtue of family bonds. Moreover, [the applicant] wrote in its letter of 18 October 2019 that “there [was] still a family relation (i.e. husband and wife)” between one of the current shareholders of that company and one of the current shareholders of the other companies, thereby confirming that they are related. It follows that [Evershine’s] omission to report all related companies in a questionnaire reply can also be attributed to [the applicant]. Together, they missed the opportunity to share relevant facts with the Commission, despite a letter of 28 May 2019 to [Evershine] to do so. In addition, the past behaviour of [the applicant] indicates that there is a strong risk for inter-company channelling between the related companies. [The applicant] increased its exports from 1 657 tonnes in 2014 to 3 929 tonnes in 2018, for which there was no economic justification. Finally, the Commission noted that the possibility to offer an undertaking under Article 8 of the basic Regulation [did] not exist for anti-circumvention cases under Article 13 of the basic Regulation. Accordingly, it is appropriate to repeal [the applicant’s] company-specific TARIC additional code.’

39 By application lodged at the Court Registry on 5 March 2020, the applicant brought the present action.

41 The applicant lodged its reply on 31 August 2020. The Commission lodged its rejoinder on 13 November 2020.

42 As a member of the Ninth Chamber was prevented from sitting in the present case, the President of the Ninth Chamber, by decision of 21 June 2021, designated another Judge to complete the Chamber, in accordance with Article 17(2) of the Rules of Procedure of the General Court.

45 In support of its action, the applicant raises three pleas in law. The first plea alleges infringement of Article 13(3) of the basic regulation, read in conjunction with Article 5(10) and (11) of that regulation and Articles 6.1, 6.2 and 12.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’), set out in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3), as well as infringement of the principles of non-discrimination and of the protection of legitimate expectations. The second plea alleges a lack of legal basis for the contested regulation, a manifest error of assessment and failure to examine all the relevant evidence. The third plea alleges infringement of the rights of the defence and of the principle of non-discrimination.

The first plea in law, alleging infringement of Article 13(3) of the basic regulation, read in conjunction with Article 5(10) and (11) of that regulation and Articles 6.1, 6.2 and 12.1 of the Anti-Dumping Agreement, as well as infringement of the rights of the defence and infringement of the principles of non-discrimination and of the protection of legitimate expectations

The first part of the first plea, alleging infringement of Article 13(3) of the basic regulation, read in conjunction with Article 5(10) and (11) of that regulation and Articles 6.1, 6.2 and 12.1 of the Anti-Dumping Agreement

47 The applicant claims, in essence, that the Commission failed to comply with the procedural obligations under Article 13 of the basic regulation concerning anti-circumvention investigations, and that it altered the scope of the investigation between the initiating regulation and the contested regulation and consequently infringed the applicant’s rights of defence. Those three claims must be examined separately.

– The first claim, relating to the failure to comply with procedural obligations under Article 13 of the basic regulation

48 The applicant submits that the Commission failed to comply with the procedural obligations laid down in Article 13(3) of the basic regulation, read in conjunction with, in particular, Article 5(10) and (11) of that regulation and Articles 6.1, 6.2 and 12.1 of the Anti-Dumping Agreement.

50 In that regard, it should be noted that Article 13 of the basic regulation, as amended by Regulation (EU) No 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1), under the heading ‘Circumvention’, provides as follows:

‘1. Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place.

Anti-dumping duties not exceeding the residual anti-dumping duty imposed in accordance with Article 9(5) may be extended to imports from companies benefiting from individual duties in the countries subject to measures when circumvention of the measures in force is taking place.

Circumvention shall be defined as a change in the pattern of trade between third countries and the Union or between individual companies in the country subject to measures and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence …

The practice, process or work referred to in the third subparagraph includes, inter alia:

(c) the reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to the Union through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers;

3. Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1 of this Article. Initiations shall be made by means of a Commission regulation which shall also instruct customs authorities to subject imports to registration in accordance with Article 14(5) or to request guarantees. The Commission shall provide information to the Member States once an interested party or a Member State has submitted a request justifying the initiation of an investigation and the Commission has completed its analysis thereof, or where the Commission has itself determined that there is a need to initiate an investigation.

Where the facts as finally ascertained justify the extension of measures, this shall be done by the Commission acting in accordance with the examination procedure referred to in Article 15(3). The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5), or on which guarantees were requested. The relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article.

51 It follows that, as regards anti-circumvention investigations, the Commission is required, in accordance with Article 13(3) of the basic regulation, to initiate an investigation by means of the adoption of a regulation, on its own initiative or at the request of a Member State or any interested party, on the basis of sufficient evidence. The Commission is also required to provide the Member States with information on the initiation of such investigations. Lastly, the Commission is required to instruct the customs authorities to subject the imports concerned to registration or to request guarantees. It also has the ability to extend the measures adopted where it considers that this is justified by the facts finally ascertained.

52 In the present case, it is apparent from both the initiating regulation and the contested regulation that the Commission initiated its investigation on its own initiative and informed the Member States and the authorities of the People’s Republic of China that there was sufficient evidence to initiate that investigation in accordance with those provisions. The Commission also informed the exporting producers listed in the annex to the initiating regulation, requesting information in respect of their related companies and making their imports subject to registration.

53 The applicant nevertheless claims that, in accordance with Article 5(10) and (11) of the basic regulation, on the one hand, and Articles 6.1, 6.2 and 12.1 of the Anti-Dumping Agreement, on the other, the Commission is required, in anti-circumvention investigations, to notify all interested parties of the initiation of that investigation, informing them, more specifically, of the products and countries concerned, and giving those parties the opportunity to participate in the investigation by producing, inter alia, evidence.

54 In the first place, Article 5(10) and (11) of the basic regulation provides, under the heading ‘Initiation of proceedings’, as follows:

‘10. The notice of initiation of proceedings shall announce the initiation of an investigation, indicate the product and countries concerned, give a summary of the information received, and provide that all relevant information is to be communicated to the Commission.

It shall state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(5).

11. The Commission shall advise the exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as representatives of the exporting country and the complainants, of the initiation of the proceedings and, with due regard to the protection of confidential information, provide the full text of the written complaint received pursuant to paragraph 1 to the known exporters and to the authorities of the exporting country, and make it available upon request to other interested parties involved. Where the number of exporters involved is particularly high, the full text of the written complaint may instead be provided only to the authorities of the exporting country or to the relevant trade association.’

55 In that regard, it should be noted that the last sentence of the third subparagraph of Article 13(3) of the basic regulation provides that ‘the relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article’.

56 As regards, first, Article 5(10) of the basic regulation, that provision lays down obligations for disclosing the initiation of an investigation and informing interested parties, which must be invited to participate in the investigation procedure within prescribed time limits.

57 In the present case, it should be noted that the Commission complied with those obligations, in that, as is apparent from the initiating regulation, it announced the initiation of an anti-circumvention investigation pursuant to Article 13(3) of the basic regulation, while indicating the product subject to the investigation and the country concerned. It also provided a summary of the information justifying the initiation of the investigation and asked the companies listed in the annex to the initiating regulation as well as the interested parties to provide it with all relevant information. As regards, in particular, the interested parties, Article 3 of the initiating regulation expressly provides that they must make themselves known by contacting the Commission within 15 days from the date of entry into force of that regulation and present their views in writing and submit replies to the investigation questionnaire within 37 days from the date of publication of that regulation. Lastly, the Commission informed the interested parties that they could also apply for a hearing within the same 37-day period.

58 As regards, second, Article 5(11) of the basic regulation, that provision requires in particular that the Commission advise the exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as representatives of the exporting country and the complainants, of the initiation of the proceedings. That obligation applies in the context of anti-circumvention proceedings, although it cannot follow from it, as the applicant claims, that the Commission is required to notify all interested parties of the initiation of the investigation and its essential facts. As the Commission rightly points out, unlike anti-dumping investigations, which are conducted in respect of a country as a whole and which concern all exporters in that country, anti-circumvention investigations examine specific practices, listed in Article 13 of the basic regulation, which may not involve a country as a whole, and target known companies suspected of participating therein.

59 In the present case, the annex to the initiating regulation published in the Official Journal contained a list of 50 companies suspected of being involved in channelling practices, to which the Commission sent a questionnaire that sought, inter alia, to reveal the identity of related companies which might also be involved in those same practices. The fact that the Commission did not notify other companies of the notice of initiation in a particular way and that it also did not confine its anti-circumvention investigation to the 50 companies mentioned in the list in the annex to the initiating regulation cannot be regarded as an infringement of Article 5(11) of the basic regulation. Otherwise, the purpose of investigations conducted in accordance with Article 13 of the basic regulation, which, according to the case-law of the Court of Justice, is to ensure the effectiveness of anti-dumping duties and to prevent their circumvention (see, to that effect, judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 50), would be undermined, in so far as companies related to the suspected companies, which could be involved in circumvention practices, including, in particular, channelling, would remain outside the Commission’s investigative scope.

60 It follows that the applicant cannot claim that the Commission infringed Article 13(3) of the basic regulation, read in conjunction with Article 5(10) and (11) of that regulation.

61 As regards, in the second place, Articles 6.1, 6.2 and 12.1 of the Anti-Dumping Agreement, it must be stated that, even if those provisions may be relied on in the present case, the applicant does not explain how the Commission infringed those provisions in a manner distinct from the alleged infringement of Article 5(10) and (11) of the basic regulation on which it relies.

62 It follows from the foregoing that, contrary to the applicant’s assertions, the Commission did not fail to comply with its procedural obligations when initiating and implementing the anti-circumvention investigation.

– The second claim, relating to the alteration of the scope of the investigation between the initiating regulation and the contested regulation

64 The applicant submits that the Commission infringed Article 13(3) of the basic regulation by altering the scope of its anti-circumvention investigation in the contested regulation. It points out, in that regard, that the Commission was not entitled to extend its investigation to companies with an individual TARIC additional code different from those of the companies listed in the annex to the initiating regulation. It adds that the Commission had been aware of its relationship with Evershine since 2013. Lastly, the applicant complains that the Commission departed from its usual practice in such matters.

66 First of all, it should be noted that the initiating regulation, in recitals 1, 7, 11, 13 and 14 thereof, states as follows:

‘1. [The Commission] has decided on its own initiative, pursuant to Articles 13(3) and 14(5) of [the basic regulation], to investigate the possible circumvention of the anti-dumping measures imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China and to make such imports subject to registration.

7. It appears from [the] indicators that certain companies currently subject to the residual duty rate of 36.1% (TARIC additional code B999) or companies subject to an individual duty rate are selling their products via other companies which are subject to a lower duty. A list of companies possibly involved in such practices is attached in [the] Annex.

11. Should circumvention practices covered by Article 13 of the basic Regulation, other than the ones mentioned above, be identified in the course of the investigation, the investigation may also cover these practices.

13. In order to obtain information it deems necessary for its investigation, the Commission will send questionnaires to the Chinese exporting producers listed in [the] Annex.

14. In any event, all interested parties should contact the Commission forthwith, but not later than the time limit set in Article 3(1) of this Regulation. The time limit set in Article 3(2) of this Regulation applies to all interested parties.’

‘An investigation is initiated pursuant to Article 13(3) of [the basic regulation], in order to determine if imports into the Union of ceramic tableware and kitchenware, excluding [certain products] originating in the People’s Republic of China, imported under the TARIC additional codes listed in [the] Annex, are circumventing the measures imposed by Council Implementing Regulation (EU) (No) 412/2013.’

68 Lastly, in the questionnaire sent by the Commission to the 50 companies listed in the annex to the initiating regulation, the following is stated:

The investigation may also cover other circumvention practices identified during the course of this investigation, other than the ones mentioned above.

4. Although the questionnaire is addressed to your company, it is understood that any related company, located in the People’s Republic of China, should also complete this questionnaire, answering questions where appropriate, if they are or have been involved in the manufacture, production, sales or re-sales of ceramic tableware and kitchenware since the start of the original investigation against imports of ceramic tableware and kitchenware from the People’s Republic of China.

69 It follows from the foregoing that it is indeed true that the initiating regulation does not expressly mention the applicant in its annex and that that regulation refers, according to Article 1 thereof, to the circumvention practices relating to the listed companies and their TARIC additional codes.

70 However, the fact that, first, the Commission extended its investigation to the applicant, even though the applicant was not mentioned in the list in the annex to the initiating regulation and that, second, the individual TARIC additional code repealed is different from the TARIC additional codes referred to in that regulation cannot be regarded as an extension of the scope of the investigation contrary to Article 13 of the basic regulation.

71 Although the applicant is not included in the list annexed to the initiating regulation, it should be regarded as subject to the investigation as a company related to Evershine; a fact which was expressly emphasised by the Commission in the questionnaire sent to Evershine, and which is also apparent from recital 7 of the initiating regulation. A contrary interpretation of Article 13 of the basic regulation would be liable to undermine the objective of that provision, in that related companies which could be involved in circumvention practices such as channelling could not be included in the scope of the Commission’s investigations. In that regard, it should be noted that, once the Commission became aware of the links between the applicant and Evershine, it was entitled to include it in the remainder of the investigation.

72 Moreover, the applicant’s assertion that the reference to specific TARIC codes in the initiating regulation means that the companies linked to the listed companies were not covered, unless their TARIC codes were included in the same list, cannot be accepted. In that regard, it must be stated that Article 1 of the initiating regulation mentions the products imported under the TARIC additional codes listed in the annex to that regulation, and not the products manufactured and exported by the producers that had been assigned the TARIC additional codes in question, as being subject to the anti-circumvention investigation.

73 It must therefore be concluded that the reference to the TARIC additional codes listed in the annex to the initiating regulation did not limit the investigation to the companies to which those codes were assigned, in as much as channelling specifically means that certain companies wrongly use the TARIC codes of other companies. An investigation into that type of practice is therefore likely to target more companies than those which have received a TARIC additional code in respect of which the Commission suspects misuse.

74 The finding in paragraph 73 above cannot be called into question by the applicant’s assertion that the wording of Article 13 of the basic regulation does not allow the reference to ‘other practices’, in recital 11 of the initiating regulation, to be interpreted as meaning ‘exporters other than those listed in the annex’.

75 Indeed, that interpretation of Article 13 of the basic regulation runs counter to the very principle of investigations aimed at countering channelling. In the context of such practices, companies use a TARIC code which has not been assigned to them because it is subject to a lower anti-dumping duty rate. It is therefore necessary for the Commission, in order to determine whether a given company is circumventing anti-dumping measures, to be in a position to investigate not only other forms of circumvention but also companies other than those to which TARIC codes corresponding to a lower rate of duty have been assigned, including related companies, which could misuse those codes where their own TARIC codes correspond to a higher duty rate, or which could themselves be engaged in channelling practices consisting in allowing other companies to misuse their company-specific TARIC additional code.

76 The applicant also cannot complain that the Commission failed to follow its usual practice in relation to the publication of a new notice of initiation in order to include in the list in the annex to the initiating regulation companies which were not initially mentioned therein.

77 On the one hand, it should be noted that the applicant adduces no evidence of that alleged usual practice. In that regard, it must be stated that the applicant merely provides related examples codified in Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55, as amended), the content and subject of which differ from the basic regulation. On the other hand and in any event, it should be noted that, according to settled case-law, the existence of a previous practice on the part of the Commission in anti-dumping matters does not in itself deprive that institution of the possibility of subsequently changing that practice (see, to that effect, judgment of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraph 125 and the case-law cited).

78 It follows from the foregoing that the Commission did not unlawfully extend the scope of the investigation in breach of Article 13(3) of the basic regulation.

– The third claim, relating to the alleged infringement of the rights of the defence

80 The applicant complains, in essence, that the Commission infringed its rights of defence by not including it in the annex to the initiating regulation and as a result granting it fewer opportunities to put forward its arguments than if it had been made aware from the outset of its inclusion in the investigation.

81 According to settled case-law, where the EU institutions enjoy a broad discretion, as is the case in the sphere of measures to protect trade, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and the right of the person concerned to make its views known and to have an adequately reasoned decision (see, to that effect, judgment of 20 March 2019, Foshan Lihua Ceramic v Commission, T‑310/16, EU:T:2019:170, paragraph 103 and the case-law cited).

82 In particular, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegations (see, to that effect, judgment of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317, paragraph 289 and the case-law cited).

83 However, a procedural irregularity can render a regulation on anti-dumping unlawful only if, as a result of that defect, the parties were not in a position to defend their interests effectively (see judgment of 14 December 2017, AETMD v Council, T‑460/14, not published, EU:T:2017:916, paragraph 81 and the case-law cited).

84 First, as regards the applicant’s argument that the fact that it was not one of the companies whose TARIC additional codes were mentioned in the annex to the initiating regulation misled it as to the scope of the investigation and, therefore, deprived it of the opportunity to participate in the investigation from the outset, it should be noted that the applicant had itself declared, in the context of the second investigation, that it was related to Evershine, whose TARIC additional code was mentioned in the annex to the initiating regulation. It should also be noted that the products referred to in Article 1 of the initiating regulation are identical to those in respect of which an anti-dumping duty rate of 17.9% was imposed on the applicant by Implementing Regulation No 412/2013. It should further be noted that recital 11 of the initiating regulation stated that, should circumvention practices covered by Article 13 of the basic regulation, other than those referred to in that regulation, be identified in the course of the investigation, the investigation could also cover them.

85 In those circumstances, the applicant could not be unaware that, although it was not one of the companies whose TARIC additional codes were mentioned in the annex to the initiating regulation, it was, at the very least, an interested party within the meaning of Article 3 of that regulation and could, in that capacity, take part in the investigation from the outset, provided that, in accordance with Article 3(1) of that regulation, it made itself known to the Commission within 15 days of the entry into force of that regulation.

86 It should be borne in mind in that regard that, in accordance with Article 3(2) of the initiating regulation, interested parties who made themselves known within the period prescribed by Article 3(1) of that regulation had the opportunity to present their views in writing, to reply to the questionnaire and to provide any other information, which, in order to be taken into account, had to be submitted, unless otherwise specified, within 37 days of publication of that regulation in the Official Journal.

87 The time limit laid down in Article 3(1) of the initiating regulation, which entered into force on 23 March 2019, expired on 7 April 2019. It is common ground between the parties that the applicant contacted the Commission for the first time, in the context of the anti-circumvention investigation initiated by the initiating regulation, on 25 June 2019.

88 It follows that it is because of that belated contact, for which it was responsible, that the applicant was not in a position to participate in the anti-circumvention investigation from the outset and not, as it wrongly claims, because it had not been included in the list of companies whose TARIC additional codes were mentioned in the annex to the initiating regulation.

89 Second, as regards the applicant’s argument that it had less time to submit its arguments than the companies whose TARIC additional codes were mentioned in the annex to the initiating regulation, it should be noted that it is true that, in its email of 9 July 2019, the Commission granted the applicant three days to provide information and to produce supporting documents regarding the change in its shareholding structure (see paragraph 30 above). However, such a period cannot be compared with the 37-day period from which the other companies participating in the investigation benefited under Article 3(2) of the initiating regulation, in so far as, since the applicant did not make itself known to the Commission within the period prescribed by Article 3(1) of that regulation, it did not, accordingly, receive the questionnaire or reply to it within the prescribed period.

90 It must therefore be held that, having regard to the circumstances of the present case, the applicant was given a period consistent with the time remaining for the Commission to close its investigation.

91 Third, as regards the applicant’s assertion that, in essence, it was deprived of the opportunity to submit its observations on the final disclosure, given that it had only 20 days, whereas the other companies had 37 days, it must be stated that that assertion must be rejected in so far as it is based on a confusion between, on the one hand, the time granted to the interested parties to submit their views in writing, their replies to the questionnaire and any other information, in accordance with Article 3(2) of the initiating regulation, and, on the other hand, the time granted by the Commission to the interested parties to take a position on the individual disclosure to the parties of its intentions in their regard before the adoption of the contested regulation.

92 Fourth, as regards the applicant’s argument that the Commission also deprived it of the possibility to request an exemption, it must be stated that the Commission, on several occasions, gave the applicant the opportunity to make such a request both in the context of its correspondence with the Commission’s services in June and July 2019 and at the hearing in October 2019, and that the applicant did not take that opportunity, with the result that that argument must be rejected.

93 It follows that the third claim must be rejected as unfounded, as must, therefore, the first part in its entirety.

The second part of the first plea, alleging infringement of the principle of non-discrimination

94 The applicant claims that, by not including it in the initial list of companies subject to the investigation, even though it was a known related exporter, the Commission treated it differently from the exporters that were included in that list. The applicant adds that the fact that it did not satisfy the criteria set out in the note of 7 March 2019 cannot objectively justify it being treated differently as compared with the other companies.

95 The applicant considers that that difference in treatment put it at a disadvantage as compared with the other exporters, in that it benefited from less time to prepare and exercise its rights of defence, which therefore constituted an infringement of the principle of non-discrimination.

97 By the second part of the first plea, the applicant alleges, in essence, that the Commission infringed the principle of non-discrimination by not including it in the initial list of companies subject to the investigation. It maintains that it was subject to discriminatory treatment, without such treatment being based on an objective difference between it and the companies listed in the annex to the initiating regulation.

98 According to settled case-law, the principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 13 December 2007, Asda Stores, C‑372/06, EU:C:2007:787, paragraph 62 and the case-law cited).

99 Therefore, for the EU institutions to be accused of discrimination, they must be shown to have treated companies in comparable situations differently, thereby placing some companies at a disadvantage by comparison with others, without such differentiation being justified by the existence of substantial objective differences (see judgment of 23 October 2003, Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, T‑255/01, EU:T:2003:282, paragraph 60 and the case-law cited).

100 In the present case, the applicant considers that it was in a similar situation to that of the exporters listed in the annex to the initiating regulation.

101 However, the applicant can neither claim that it was in the same situation as the companies listed in the annex to the initiating regulation, nor that it was treated differently from other companies.

102 First, as is apparent from the note attached to the file of 7 March 2019 (see paragraph 12 above), only the companies which satisfied the objective criteria set by the Commission were included in the list published in the annex to the initiating regulation. The non-inclusion of the applicant’s name in that annex suggests that it may engage in circumvention practices in a manner different from that specifically referred to in that note, which, moreover, was drawn up in accordance with the broad discretion which the Commission is recognised as having when carrying out investigations in the sphere of trade policy (see, to that effect, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 71 and the case-law cited).

103 In that regard, it should be added that the applicant has not shown that the objective criteria established by the Commission do not demonstrate a difference between the companies which satisfied those criteria and those which did not, and how the definition of those criteria went beyond that discretion.

104 Second, it is apparent from the examination carried out in paragraphs 80 to 93 above that the applicant has not shown that it had fewer opportunities to exercise its rights of defence than the companies listed in the annex to the initiating regulation, which, in essence, forms the basis of the claim made against the Commission in the context of this part of the present plea.

105 The Commission cannot therefore be accused of having infringed the principle of non-discrimination.

The third part of the first plea, alleging infringement of the principle of the protection of legitimate expectations

107 The applicant submits that, given the Commission’s conduct, it had acquired a legitimate expectation that it would not be subject to the Commission’s investigation and that its individual TARIC code would not be repealed.

108 The applicant submits, in that regard, that the Commission treated it separately from Evershine during the initial investigation and in the context of review measures, by granting them in particular separate individual TARIC codes, by including only Evershine in the initiating regulation and by not making the applicant’s imports subject to registration, contrary to its usual practice.

110 The applicant submits that the Commission infringed the principle of the protection of legitimate expectations by subsequently extending the scope of the review to include it, even though the Commission had previously, by its conduct, caused the applicant to entertain a legitimate expectation that it would not be designated as being subject to the investigation or have its TARIC code repealed.

111 The right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where an EU authority has caused him or her to have justified expectations. Nevertheless, the right to rely on that principle requires that three conditions be satisfied cumulatively. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (judgment of 12 May 2017, Costa v Parliament, T‑15/15 and T‑197/15, not published, EU:T:2017:332, paragraph 73 and the case-law cited).

112 As regards the first of those conditions, it follows, in particular, that a party is not, in principle, entitled to rely on the silence of the administration in order to plead infringement of the principle of the protection of legitimate expectations (judgment of 12 May 2017, Costa v Parliament, T‑15/15 and T‑197/15, not published, EU:T:2017:332, paragraph 74 and the case-law cited).

113 Nevertheless, a mere administrative practice or concession that is not contrary to the legislation in force and does not involve the exercise of discretion may give rise to a legitimate expectation on the part of the persons concerned, and the expectation therefore does not necessarily have to be founded on a communication which is generally applicable (judgment of 28 September 2004, MCI v Commission, T‑310/00, EU:T:2004:275, paragraph 112).

114 In the present case, in order to determine, first, whether the Commission could have given the applicant a legitimate expectation that it would not be subject to the investigation and, second, whether the Commission infringed the applicant’s legitimate expectations by withdrawing its individual TARIC code from it, it is necessary to examine the nature and content of the exchanges which took place between the Commission and the applicant during the investigation.

115 In that regard, it must be stated at the outset that there is nothing in the documents before the Court to indicate that alleged assurances were made relating to the non-inclusion of the applicant in the scope of the investigation. The Commission acknowledges that it had been in contact with the applicant between 9 July and 10 October 2019 in the context of, in particular, responding to the applicant, which had offered to cooperate, and with a view to informing the applicant of its intention to repeal the applicant’s individual TARIC code, as well as in the context of a hearing.

116 However, none of the information communicated by the Commission to the applicant is liable to give the applicant such assurances. Indeed, it is apparent from the documents before the Court that the Commission placed greater emphasis, at the beginning of the review, on the fact that it had not yet adopted a position on the outcome of the investigation in respect of the applicant. Thus, the following is apparent from the email sent by the Commission to the applicant on 9 July 2019:

‘… we can currently not comment on any impact the investigation would have on the applicable anti-dumping duty for your company … The impact of any relationship of a certain company to their related companies listed in the Annex (EU) No 2019/464 still has to be analysed.’

117 Similarly, the Commission informed the applicant of its intention to repeal the applicant’s individual TARIC code as well as of the potential developments in the investigation, in particular in its communication of 27 September 2019, which states as follows:

‘Since you are related to the abovementioned company, there is a risk of inter-company channelling. In order to mitigate that risk, we are intending to repeal your own TARIC additional code (B588). Consequently, you will become subject to the countrywide residual duty of 36.1%. This disclosure does not prejudice any subsequent decision which may be taken by the Commission, but where such decision is based on any different facts and considerations, these will be disclosed to your company as soon as possible.’

118 It follows that the Commission did not give the applicant any precise and unconditional assurances that it would be definitively excluded from the scope of the investigation and the measures adopted.

119 The foregoing finding cannot be called into question by the various factors relied on by the applicant.

120 First, the applicant states that it was not listed among the companies under investigation. However, on that basis, while it is accepted by the Commission itself, in its email of 9 July 2019, that the applicant was indeed not included in the annex to the initiating regulation, the Commission did state, as is apparent from the passage cited in paragraph 116 above, that the impact on related companies of any relationship that they might have with companies listed in that annex had not yet been decided at that stage.

121 In addition, in that same email, the Commission stated that, on the basis of the information that had been provided at that stage, the applicant was considered to be a related company:

‘… we continue to consider your company as related to the other companies for the purpose of the investigation.’

122 Lastly, the Commission also added, in the individual disclosure of 27 September 2019, the following:

‘Since you are related to the abovementioned company, there is a risk of inter-company channelling.’

123 It cannot therefore be held that, by not including the applicant in the annex to the initiating regulation, the Commission gave the applicant unconditional assurances that its exclusion from the scope of the investigation was definitive.

124 Second, the applicant maintains that it was not contacted by the Commission in the context of the investigation. That assertion must, however, be rejected.

125 It should be noted that the Commission informed the applicant of the state of the investigation in its letters of 9 July and 27 September 2019 and indeed invited it to provide further information concerning its links with Evershine before 12 July 2019. The Commission cannot therefore be said not to have contacted the applicant.

126 Third, the applicant argues that its imports were not registered under Article 2 of the initiating regulation. The applicant bases its alleged legitimate expectation in part on ‘the Commission’s standard practice to first make imports subject to registration, before imposing anti-circumvention measures on these imports’.

127 In that regard, it should be borne in mind that the Commission has a discretion as regards the decision to make imports subject to registration and that the existence of a previous practice does not, in itself, deprive the institutions of the possibility of subsequently amending that practice (see, to that effect and by analogy, judgment of 17 July 1998, Thai Bicycle v Council, T‑118/96, EU:T:1998:184, paragraphs 68 and 69).

128 The examples relating to different cases referred to by the applicant do not prove consistent practice on the part of the Commission. While it is true that it is, at most, normal for the Commission to precede the imposition of anti-circumvention measures with the registration of imports, that practice alone cannot give rise to a legitimate expectation on the part of the applicant that it would not be subject to anti-circumvention measures given that its imports were not registered.

129 Fourth, the applicant submits that it was treated ‘separately’ from Evershine, in particular given the fact that the Commission assigned them individual TARIC codes, and that the Commission also assessed their respective situations separately. In that regard, it is sufficient to note that the Commission repeatedly reminded the applicant that it considered it to be related to Evershine and of the potential impact that this might have on the applicant. In addition, the Commission explained, without being effectively contradicted by the applicant, that, in view of the large number of companies, such as the applicant and Evershine, which had cooperated during the initial investigation and benefited, as a result, from a reduced rate of duty, those companies had all been assigned individual TARIC codes in order to enable their exports to be identified and thus to limit the risks of channelling practices. The applicant cannot therefore maintain that the fact that the Commission assigned it a different TARIC code from that assigned to Evershine justified its legitimate expectation that it was not concerned by the investigation initiated by the initiating regulation.

130 In the light of the foregoing considerations, it must be held that the arguments put forward by the applicant are not capable of demonstrating that the Commission infringed the principle of the protection of legitimate expectations.

131 The third part of the first plea must therefore be rejected as unfounded, as must, therefore, the first plea in its entirety.

The second plea in law, alleging a lack of legal basis, a manifest error of assessment and failure to examine all the relevant evidence

133 In the first place, the applicant submits that the repeal of its TARIC additional code is based solely on an alleged strong risk of circumvention on account of its relationship with Evershine which, according to the Commission, is itself engaged in circumvention practices.

134 However, according to the applicant, first, such a situation does not come within the scope of Article 13(1) of the basic regulation, which defines the conditions for establishing the existence of circumvention and not merely a risk of circumvention, as was confirmed by the General Court in the judgment of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896).

135 Second, the Commission’s argument that there was a ‘real risk’ of the circumvention practices in which Evershine was engaged being continued via the applicant cannot obscure the fact that the Commission failed to adduce evidence that the applicant itself was engaged in circumvention practices.

136 Third, the risk of circumvention relied on by the Commission to justify the repeal of the applicant’s TARIC additional code already existed when Regulation No 1072/2012 which imposed the original anti-dumping measures was adopted, which justified the inclusion of a special monitoring clause in that regulation and the allocation of different TARIC additional codes to companies subject to the same duty rate.

137 Fourth, the alleged ‘real risk’ of circumvention is based only on the applicant’s investment relationship with Evershine and the other companies related to Evershine during the investigation period. However, the Commission has neither alleged nor shown that the applicant and Evershine or the companies related to Evershine have or would be able to channel products through each other.

138 Fifth, the Commission also failed to demonstrate that Evershine had actually engaged in circumvention practices; it merely assumed those practices were taking place on the basis of the increase in Evershine’s exports to the European Union during the investigation period. It follows that the risk of circumvention relied on by the Commission on account of the applicant’s links with Evershine has not been established within the meaning of the case-law, but is merely hypothetical.

139 In the second place, the applicant claims that it is apparent from Article 13(3) of the basic regulation that the registration of imports is a prerequisite for the imposition and extension of anti-circumvention measures. That article requires, in its view, that the registration of imports or the imposition of other guarantees is the starting point of the extension of measures. The measures can therefore be extended, from the date of registration, only for imports actually registered.

140 The applicant points out in that regard that it follows from the Commission’s practice that the imposition of provisional measures is an essential precondition for the imposition of retroactive duties and maintains that it could not be the subject of anti-circumvention measures, since its imports were at no time subject to registration. The Commission thus did not base its decision on any legal basis.

142 The applicant claims that the Commission based the repeal of its TARIC additional code on an alleged risk of circumvention arising solely from its links with Evershine, even though, first, such a risk does not come within the situations referred to in Article 13(1) of the basic regulation and, second, the Commission has not shown, in the present case, that that risk was established.

143 It should be borne in mind that the third subparagraph of Article 13(1) of the basic regulation defines circumvention as follows:

‘Circumvention shall be defined as a change in the pattern of trade between third countries and the Union or between individual companies in the country subject to measures and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2 …’

144 Circumvention of anti-dumping measures is established, in accordance with the third subparagraph of Article 13(1) of the basic regulation, where four conditions are met. First, there must be a change in the pattern of trade between a third country and the European Union or between individual companies in the country subject to measures and the European Union. Second, that change must stem from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty. Third, there must be evidence of injury to EU industry or that the remedial effects of the anti-dumping duty are being undermined. Fourth, there must be evidence of dumping (judgment of 26 January 2017, Maxcom v Chin Haur Indonesia, C‑247/15 P, C‑253/15 P and C‑259/15 P, EU:C:2017:61, paragraph 55).

145 The definition of circumvention is formulated in very general terms, which leaves a broad discretion to the EU institutions, since no details of the nature and form of the change in the pattern of trade between third countries and the Union are given (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 48).

146 In that regard, first, it should be noted that the applicant’s line of argument is based on the premiss that the Commission justified the repeal of the applicant’s TARIC additional code by a risk of circumvention resulting solely from its relationship with Evershine.

147 However, it is apparent from recital 47 of the contested regulation that the Commission based the repeal of the applicant’s TARIC additional code on the finding that that company was related to Evershine, which had provided highly deficient replies to the questionnaire. The Commission added that the applicant’s past conduct indicated that there was a strong risk of inter-company channelling between those related companies. The Commission then stated in that regard that the applicant had increased its exports from 1 657 tonnes in 2014 to 3 929 tonnes in 2018 and that that increase was not explained by any economic justification. The Commission went on to state that the possibility of offering an undertaking under Article 8 of the basic regulation did not exist in the event of circumvention under Article 13 of that regulation. It concluded that it was necessary to repeal the applicant’s TARIC additional code.

148 It follows that, contrary to the applicant’s assertions, the Commission justified the repeal of its TARIC additional code by the strong risk of circumvention resulting from (i) the applicant’s links with Evershine and (ii) the applicant’s own conduct during the investigation period.

149 Second, the applicant’s argument that Article 13(1) of the basic regulation is not applicable to a risk of circumvention must be rejected. It should be noted that, contrary to the applicant’s assertions, in the judgment of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896, paragraphs 83 and 84), the General Court did not exclude that, when imposing anti-dumping duties or in the context of the refusal to grant an individual duty, the EU institutions could rely on a risk of circumvention, but merely stated that such a risk could not be purely hypothetical. That finding was, moreover, confirmed by the Court of Justice in its judgment on appeal, in which it stated that, even though the risk of circumvention of anti-dumping measures is higher in the case of related exporters on which different anti-dumping duties might be imposed, the EU institutions were nonetheless required to demonstrate that, in the light of the particular circumstances of the investigation concerned, there was a genuine risk of circumvention (judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 84).

150 Third, as regards the applicant’s argument that the Commission did not adduce evidence that it itself had engaged in circumvention practices, it must be borne in mind that the Commission justified the repeal of the applicant’s TARIC additional code by reference to the strong risk of circumvention resulting not only from its links with Evershine, but also from the applicant’s conduct, namely an increase in its exports to the European Union between 2014 and 2018, which could not be explained by any economic justification.

151 It should also be borne in mind that, in its notice of initiation of the investigation, the Commission stated that ‘the channelling [resulted] in extra transportation costs in the People’s Republic of China without any added value’ and that ‘therefore, this change in the pattern of trade [came] without sufficient due cause or justification other than the imposition of the duty for such a change’.

152 It should further be borne in mind that the Commission mentioned the increase in the applicant’s exports and the lack of justification for that increase in its letter of 28 May 2019, which was sent to the applicant by Evershine on 19 June 2019.

153 However, the applicant, which was at least an interested party (see paragraph 85 above), did not contact the Commission until 25 June 2019, that is to say, several months after the expiry of the time limit laid down in Article 3(1) of the initiating regulation (see paragraph 87 above), and therefore, on account of that delay in making contact, for which it was responsible, did not participate in the anti-circumvention investigation from the outset (see paragraph 88 above).

154 In addition, as the only explanation for the increase in its exports to the European Union during the investigation period, the applicant merely indicated to the Commission, in its email of 25 June 2019 and in its letter of 18 October 2019, that its production capacity could sufficiently support its volume of exports.

155 As regards the standard of proof required to demonstrate circumvention where there is insufficient or indeed no cooperation on the part of exporting producers, it should be noted that there is no provision in the basic regulation which confers on the Commission, in an investigation to establish whether there has been circumvention, the power to compel producers or exporters which are the subject of a complaint to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to provide it with the necessary information (judgment of 26 January 2017, Maxcom v Chin Haur Indonesia, C‑247/15 P, C‑253/15 P and C‑259/15 P, EU:C:2017:61, paragraph 60).

156 It is for that reason that the EU legislature provided in Article 18(1) of the basic regulation that, in cases where an interested party refuses access to, or otherwise does not provide, necessary information, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available (judgment of 26 January 2017, Maxcom v Chin Haur Indonesia, C‑247/15 P, C‑253/15 P and C‑259/15 P, EU:C:2017:61, paragraph 61 and the case-law cited).

157 Furthermore, Article 18(6) of the basic regulation provides that if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than it would have been if it had cooperated.

158 The Court has stated in that regard that it follows from Article 18 of the basic regulation that it was not the intention of the EU legislature to establish a legal presumption whereby it is possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, thereby exempting the EU institutions from any requirement to adduce proof. However, given that it is possible to make findings, even definitive findings, on the basis of the facts available and to treat a party which does not cooperate or does not cooperate fully less favourably than if it had cooperated, it is equally evident that the EU institutions are authorised to act on the basis of a body of consistent evidence showing the existence of circumvention for the purposes of Article 13(1) of the basic regulation (judgment of 26 January 2017, Maxcom v Chin Haur Indonesia, C‑247/15 P, C‑253/15 P and C‑259/15 P, EU:C:2017:61, paragraph 64 and the case-law cited).

159 By way of example, such a practice may be identified where the change in the pattern of trade between a country and the European Union began immediately after the imposition of the anti-dumping duty on imports from another third country. That coincidence in time constitutes significant evidence making it possible to establish a link based in logic and reason between the considerable increase in imports from the first third country and the imposition of the anti-dumping duty (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 52).

160 It must be stated that the increase in the applicant’s exports to the European Union between 2014 and 2018 constitutes significant evidence of circumvention within the meaning of the case-law cited in paragraph 159 above.

161 In those circumstances, it must be held that, in the light of the applicant’s lack of cooperation during the investigation, the Commission was entitled to base its conclusions regarding the applicant’s past conduct on the facts available relating to the increase in the applicant’s exports during the investigation period.

162 Fourth, as regards the applicant’s argument that the risk of circumvention relied on by the Commission already existed when the original anti-dumping measures were adopted, it is sufficient to note that when those measures were adopted the applicant and Evershine were indeed allocated different TARIC additional codes, but they were also subjected to an identical amount of anti-dumping duty, with the result that, contrary to the applicant’s assertions, there was no risk of inter-company channelling between the applicant and Evershine.

163 Fifth, it is necessary to reject as being based on an incorrect premiss the applicant’s argument that, in as much as the repeal of its TARIC additional code was justified solely by the investment links between it and Evershine, the Commission was required to show that the applicant, Evershine or the other companies related to Evershine had channelled or would be able to channel products through each other. Contrary to the applicant’s assertions, it is apparent from the documents before the Court and from recital 47 of the contested regulation that the Commission found the existence during the investigation period not only of financial links, but also of shareholding links and family ties between the applicant and Evershine.

164 Sixth, as regards the applicant’s argument that the Commission did not adduce evidence that Evershine had actually engaged in circumvention practices, but presumed that Evershine had engaged in such practices, it should be noted that it is apparent from the contested regulation that Evershine was one of the exporting producers which submitted highly deficient replies to the Commission’s questionnaire and that, consequently, the Commission established its findings with regard to Evershine on the basis of, on the one hand, the facts available, in particular the facts relating to trends in exports to the European Union and, on the other hand, its assessment of the level of deficiency in the replies to that questionnaire, pursuant to Article 18(1) of the basic regulation (see recital 35 of the contested regulation). It is also apparent from the contested regulation that, in the absence of any economic justification other than circumvention practices, the Commission concluded that Evershine was engaged in channelling practices (see recital 36 of the contested regulation).

165 However, the applicant does not dispute the very incomplete nature of Evershine’s reply to the Commission’s questionnaire and does not explain how, in those circumstances, in the light of the case-law referred to in paragraph 158 above, the Commission was wrong to base its findings concerning Evershine’s conduct on the facts available.

166 The applicant’s argument that the Commission did not adduce evidence that Evershine had actually engaged in circumvention practices must therefore be rejected.

167 In the light of the foregoing considerations, the first claim of the first part of the present plea must be rejected as unfounded.

168 As regards the condition of registration of imports, the applicant claims that the Commission acted without legal basis by extending the anti-circumvention measures taken against it without having first subjected its imports to registration, which it regards as an essential prerequisite, as, in its view, is apparent from Article 13(3) of the basic regulation.

169 It should be borne in mind that, under Article 13(3) of the basic regulation, as amended by Regulation No 2018/825, ‘initiations shall be made by means of a Commission regulation which shall also instruct customs authorities to subject imports to registration in accordance with Article 14(5) or to request guarantees’.

170 According to settled case-law, it is apparent from Article 13(3) of the basic regulation that the sole purpose of a regulation extending an anti-dumping duty is to ensure the effectiveness of that duty and to prevent its circumvention. Furthermore, the obligation to register the imports concerned, in the specific context of such circumvention, is also intended to ensure the effectiveness of the extended definitive measures by making possible the retroactive application of duties in order to avoid a situation in which the definitive measures to be applied are deprived of their effectiveness (judgments of 6 June 2013, Paltrade, C‑667/11, EU:C:2013:368, paragraphs 28 and 29, and of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 50).

171 The Commission has, for that purpose, as with all its prerogatives, a broad discretion regarding the measures which it may implement in the context of its investigations, in order to ensure the effectiveness of the measures which it chooses to implement (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 48).

172 In the present case, the Court considers, as the Commission does, that, since Article 13(3) of the basic regulation does not identify the imports which are to be subject to registration, the Commission may choose, as regards channelling practices, to register only the imports in respect of which it has solid evidence of such circumvention.

173 Such a conclusion follows from the logic of anti-circumvention investigations, which are extended to a greater number of undertakings than the undertakings directly covered by the regulation initiating the investigation concerned. Since the Commission is not in a position, at the time of the regulation initiating the investigation concerned, to identify individually all companies relevant to its investigation, it is logical for the Commission to be able to limit the registration of imports to certain identified companies.

174 Moreover, that finding cannot be called into question by the applicant’s assertion relating to the Commission’s consistent practice of registering all imports. First, the applicant cannot demonstrate the existence of such a practice solely on the basis of a single example. Second, even if the applicant had succeeded in establishing that consistent practice, the Commission has the possibility of altering that practice by virtue of its discretion, as is apparent from the case-law cited in paragraph 77 above.

175 It follows that the Commission did not act in breach of its obligations under Article 13(3) of the basic regulation.

176 The second claim in the first part of the second plea must therefore be rejected as unfounded.

The second part of the second plea, relating to a manifest error of assessment and failure to examine all the relevant evidence

178 The applicant claims, in essence, that the Commission made a manifest error of assessment and failed to examine carefully and impartially all the relevant evidence regarding the risk of channelling practices. It also considers that the Commission’s reasoning is inconclusive, is not based on facts, and is insufficient to fulfil the relevant EU law criteria.

179 The applicant puts forward those arguments with regard, first, to the Commission’s assessment of its links with Evershine and, second, to the Commission’s assessment of the correlation between the increase in exports and circumvention practices.

– The first claim, relating to the links found by the Commission between the applicant and Evershine

180 The applicant submits that the Commission’s analysis of relations between companies in the context of an anti-circumvention investigation is prospective and must be based on the most recent state of the relationship between the parties. The applicant does not dispute the Commission’s finding regarding the existence of family ties and shareholder relationships between itself and Evershine, but submits that the Commission cannot explain how that mere link makes it possible to assume the existence of reciprocal involvement in or control over operations between the companies or a risk of channelling. Although its situation is consistent with the definition of ‘related’ companies in Article 127 of Implementing Regulation 2015/2447, that consistency is rebuttable in the light of both the Commission’s practice and the case-law of the World Trade Organisation (WTO), where the link referred to proves to be insufficiently close – which is the case here, in the light of the companies’ operations being actually entirely separate and the recent changes in their management and shareholding.

181 In addition, the applicant submits that, even if there were a sufficient economic relationship between the companies, that relationship would be insufficient in itself to justify the Commission’s presumption of a strong risk of circumvention. The Commission failed to analyse the additional significant evidence adduced by the applicant relating to the differences between the products exported by the applicant and Evershine, which result from their production processes and make inter-company channelling unlikely.

182 The applicant concludes from this that its non-inclusion in the initial list of exporters in the initiating regulation confirms that neither the Commission nor the customs authorities of the European Union had observed changes in the past in relation to the exported products.

184 It should be noted that, in recital 47 of the contested regulation, the Commission stated that, according to the definition of related companies in Article 127 of Implementing Regulation 2015/2447, the applicant was related to a company that had provided very inadequate replies to the questionnaire, namely Evershine. The Commission stated in that regard that, ‘at the time of the initiation, there was a strong financial tie, and after the divestment of the shareholding shortly thereafter the relationship continued by virtue of family bonds’. The Commission also noted that the applicant had stated in its letter of 18 October 2019 that there was still a family relationship between one of the applicant’s shareholders and one of the shareholders of the other companies, which confirmed that the companies were related (see paragraph 38 above).

185 Article 127 of Implementing Regulation 2015/2447 defines the concept of ‘related’ companies as follows:

‘1. For the purposes of this Chapter, two persons shall be deemed to be related if one of the following conditions is fulfilled:

(d) a third party directly or indirectly owns or controls or holds 5% or more of the outstanding voting stock or shares of both of them;

2. Persons who are associated in business with one another in that one is the sole agent, sole distributor or sole concessionaire, however described, of the other shall be deemed to be related only if they fall within the criteria referred to in paragraph 1.

3. For the purposes of paragraph 1(e), (f) and (g) one person is deemed to control another when the former is legally or operationally in a position to exercise direction over the latter.’

186 The Commission’s questionnaire sent to Evershine reproduced that definition and stated that persons were deemed to be members of the same family within the meaning of Article 127(1)(h) of Implementing Regulation 2015/2447 only ‘if they [stood] in any of the following relationships to one another: (i) husband and wife, (ii) parent and child, (iii) brother and sister (whether by whole or half blood), (iv) grandparent and grandchild, (v) uncle or aunt and nephew or niece, (vi) parent-in-law and son-in-law or daughter-in-law, (vii) brother-in-law and sister-in-law’.

187 In the present case, the applicant submits, in the first place, that the link between it and Evershine was not sufficiently close – given that the actual operations of the companies are entirely separate and given the recent changes in their management and shareholders – for them to be regarded as related companies. There is ‘only [one] technical relationship between the applicant and Evershine and Liling Taiyu’.

188 That argument must be rejected in so far as, as has already been stated in paragraph 163 above, the Commission did not merely establish a technical relationship between the applicant and the other two companies, but also found the existence of common shareholding between the companies in question and the applicant, as well as investment links and family ties.

189 In addition, that finding cannot, in the light of the documents before the Court, be called into question by the applicant, which has not produced any evidence of the separation of those companies’ activities and which has provided sometimes contradictory answers concerning their family ties and their common shareholding, without providing proof that those links have been broken, as it claims.

190 Thus, in its response to the Commission’s final communication of 27 September 2019, the applicant first emphasised that it had indicated that it was related to Evershine from the outset.

191 However, the applicant then stated at the hearing held on 10 October 2019 that, since April 2019, changes had taken place in its shareholding and that there were no longer any family ties between itself and Evershine.

192 Subsequently, the applicant claimed, however, in its letter of 18 October 2019, that it ‘[did] not deny that there [was] still a family relation (i.e. [husband-wife]) between one of [its] current shareholders … and one of the current shareholders of Evershine and [Shenzhen] Worthyway, but [submitted] that the restructuring of the shareholding in April 2019 still [manifested] a formal separation of these already factually independent companies’. The applicant explained in that regard before the Court that B and F had been divorced since 8 October 2019.

193 It is apparent from the documents before the Court that, until 5 July 2018, A was the applicant’s main shareholder with a share of 71.25%. On 5 July 2018, A transferred the majority of his shares in the applicant to B (one of his sons) and transferred the remaining shares to the applicant’s General Manager, G. From that date, B became the applicant’s main shareholder, with a shareholding of 56.25%. On 17 April 2019, B himself transferred his shares in the applicant to his wife, F (see paragraph 27 above). It is also apparent from the documents before the Court that Evershine was 30% owned by Shenzhen Worthyway – itself owned in equal shares by B and C (both of whom were sons of A) – and 70% owned by One And Only Trade, which was 49% and 51% owned by B and C respectively (see paragraph 9 above).

194 It must therefore be held that, during the investigation period, which ran from 1 January 2015 to 31 December 2018, the relationship between the applicant and Evershine was first characterised, until 5 July 2018, by the father-son family ties that existed between their respective shareholders. From 5 July 2018 to 17 April 2019, that relationship was characterised by the family ties between B, who was the applicant’s main shareholder, and his brother, C, who was a shareholder of Evershine’s two parent companies, as well as by a common shareholding, as B had become a shareholder of both the applicant and Evershine.

195 In that regard, it should be noted that the changes that occurred from April 2019 as regards the ownership of the applicant and the family ties between the applicant’s shareholders and Evershine’s shareholders are not, by definition, such as to call into question the circumstances which prevailed during the investigation period.

196 In addition, it should be noted that, although the transfer to F of the shares which B held in the applicant did indeed put an end to the situation of the applicant and Evershine having a common shareholding, family ties between the shareholders of the two companies continued, in view of B and F’s marital status. The applicant cannot usefully rely in that regard on the fact that B and F divorced on 8 October 2019, since, first, it has adduced no evidence in support of that assertion and, second, it itself indicated in the last observations it sent to the Commission on 18 October 2019 that there was a ‘[husband-wife]’ family link between one of its shareholders and one of Evershine’s shareholders.

197 Furthermore, the applicant submits that neither B or F ‘had any involvement in the operations or management of the applicant’ and that that company was managed by G, who in 2016 had taken on the role of legal representative of the applicant, a role previously occupied by A, and had no connection with Evershine. In that regard, it should be noted that the applicant’s reply to the sampling questionnaire in the second investigation was in fact signed by G, as the applicant’s legal representative. It is also stated in the reply in question that G holds the position of General Manager within the applicant. However, it must be noted that that mere statement cannot lead to the conclusion that the successive majority shareholders of the applicant – A, then B, and then F – were not in a position to intervene in the management of that company.

198 Moreover, it should be noted that the investment relationship between the applicant and Evershine was confirmed by the applicant when it first contacted the Commission and was not subsequently called into question by the applicant. In that regard, the following is set out in the email that the applicant sent to the Commission on 25 June 2019:

‘… we had an investment relationship with Evershine Fine China Co., Ltd and Liling Taiyu Porcelain Industries Co., Ltd during the period of investigation.’

199 In the light of all the abovementioned factors, the Commission was entitled to take the view, in recital 47 of the contested regulation, that the relationship between the applicant and Evershine was defined, during the investigation period, by investment relationships, family ties and the existence of a common shareholding.

200 It cannot therefore be held that the Commission made a manifest error of assessment in concluding that the applicant was a company related to Evershine.

201 In the second place, the applicant submits that the mere finding that Evershine and itself are related companies does not permit the conclusion that there is a risk of circumvention. Although that assertion is correct in law, in the present case that claim must be rejected in so far as the Commission did not base the measures adopted solely on the existence of links between the applicant and Evershine. Furthermore, it is apparent from the findings made in paragraphs 188 to 199 above, as well as from the documents before the Court examined in paragraphs 202 to 207 below, that the Commission correctly relied on a sufficient body of evidence in order to identify circumvention.

202 In that regard, first of all, it is apparent from the Commission’s note of 7 March 2019 on the ex officio initiation of the investigation that the Commission opened its initial investigation on the basis of evidence suggesting circumvention practices, relying, primarily, on the intensification of exports to the European Union from the companies to which the applicant was related:

‘… the Surv2 statistics show an overall increase of total Chinese exports (volumes up by 7% between 2014 and 2018). The share of the exports under the 17.9% weighted average duty rate increased over that period from 84% of the total Chinese exports in 2014 to 86% in 2018. The overall share of exports under the 36.1% residual duty rate decreased from 9% in 2014 to 7% in 2018. These macro level data support the view that circumvention might be taking place.’

203 It is apparent from that note that, as regards the indications of channelling by Evershine, a company to which the applicant is related, the Commission also found that the applicant’s exports to the European Union increased significantly without economic justification:

‘The Commission has at its disposal sufficient evidence that there is a reorganisation of patterns and channels of sales of the product concerned. Indicators for such channelling practices are …’

204 In addition, in its letters of 28 May and 11 June 2019, addressed to Evershine, the Commission found that there were indications that the related trader Shenzhen Worthyway was engaged in circumvention practices. That finding was then extended to the applicant, in particular in the letter of 28 May 2019, in which the Commission stated the following:

‘The analysis of the EU customs database shows that [the applicant] increased its exports to the EU from 1 657 [tonnes] in 2014 to 3 929 [tonnes] in 2018 of the product concerned. In view of the deficiencies outlined in the Annex I, the available evidence would indicate that there is no economic justification [for] this increase other than channelling production from other Chinese tableware producers.’

205 Lastly, that finding was extended by the Commission to the applicant, as a related company, in the context of the contested regulation, the Commission having held that the applicant had demonstrated conduct proving that there was a strong risk of inter-company channelling between the related companies and that the applicant had increased its exports from 1 657 tonnes in 2014 to 3 929 tonnes in 2018.

206 It follows that the Commission based its finding on repeated statistical data, in respect of which the applicant has not provided contrary or alternative evidence.

207 The applicant nevertheless argues that the Commission failed to analyse the additional evidence which it submitted concerning the differences between the products which it and Evershine exported, which made channelling unlikely. In that regard, it is sufficient to note that, while it is true that a risk of channelling is more likely where the products marketed by the various companies are identical or at least similar, the fact remains that the applicant shows neither that there is a real difference between those products nor what impact that difference would have on the existence of a risk of circumvention. The applicant merely reiterates, in essence, in its application and its reply, its explanations concerning the difference in production processes between the products marketed by itself and by Evershine.

208 It follows from the foregoing that, contrary to the applicant’s assertions, the Commission did not commit a manifest error in its assessment of the links the applicant had with Evershine for the purpose of finding that there was a risk of channelling.

– The second claim, relating to the correlation between the increase in imports and the existence of circumvention practices

210 The applicant submits that the Commission wrongly relied on the finding of a past increase in its exports in order to conclude that there was a risk of inter-company channelling, even though there is nothing to indicate that that increase was due to circumvention. In the applicant’s view, the Commission failed to examine the existence of plausible explanations for the increase in exports and to give it an opportunity to explain that phenomenon. It states, in that regard, that when its import volumes and production capacity are compared, those volumes are covered by its output, as is apparent from the sampling reply which it submitted in the expiry review. The applicant concludes from this that the Commission’s finding that the increase in exports is not explained by any ‘economic justification’ is not based on a careful examination of the relevant evidence adduced by the applicant.

211 The applicant states that it was not informed of the fact that the investigation was likely to concern it until 17 June 2019 and that, despite its direct communications with the Commission, the Commission did not directly send the applicant its request for information and never questioned it about the increase in its exports, confining itself to requesting information regarding the applicant’s shareholding structure. Accordingly, the applicant maintains that, following those exchanges, it could reasonably have expected that the Commission was no longer interested in its export volumes.

213 According to the case-law, in establishing a risk of inter-company channelling, the Commission is required to identify a change in trade and to check whether there is a plausible alternative explanation for the change in the pattern of trade and the circumvention practices, which, in practice, entails ascertaining whether there are any factors which might preclude the establishment of a causal link between that change and the circumvention practices (see, to that effect, judgment of 26 January 2017, Maxcom v Chin Haur Indonesia, C‑247/15 P, C‑253/15 P and C‑259/15 P, EU:C:2017:61, paragraph 102).

214 In the present case, the Commission based its decision concerning the applicant’s participation in circumvention practices on the finding that there was a change in the applicant’s imports. In particular, as is apparent from recital 47 of the contested regulation, the Commission considered that the applicant’s past conduct indicated that there was a strong risk of inter-company channelling between the related companies. It stated in that regard that the applicant had increased its exports from 1 657 tonnes in 2014 to 3 929 tonnes in 2018, and that that increase was not explained by any economic justification. The Commission had previously made that assertion in its letter to Evershine of 28 May 2019 on account of the latter’s incomplete reply to the questionnaire (see paragraph 28 above), by noting the following:

215 As regards the applicant’s argument that the existence of a ‘strong risk’ of circumvention in the future cannot logically be based on a past increase in exports which was not itself due to an inter-company channelling, the fact remains that the applicant did not provide any supporting evidence that would enable the Commission to rely on the most recent state or at least a more recent state of the applicant’s import and export activities. In that regard, it should be borne in mind that, in accordance with the case-law cited in paragraph 155 above, the Commission is dependent on the voluntary cooperation of the interested parties in order to obtain the necessary information.

216 Thus, since the applicant did not cooperate within the period prescribed by Article 3 of the initiating regulation, the Commission was obliged to make its findings on the basis of the facts available. It therefore used its own statistical data on imports, dating from 2018, extracted from the database established pursuant to Article 14(6) of the basic regulation, which revealed that there had been a clear change in the pattern of trade with regard to the multiplication of the applicant’s exports by more than two. The Commission also informed the applicant’s group of companies of its intention to rely on that information in its letter of 28 May 2019 to Evershine by stating the following:

‘In accordance with Article 18(4) of [the basic regulation], you have the right to provide further explanations as regards the above preliminary assessment. If you wish to do so, please reply to the functional mailbox by [5 June 2019]. In any case, you are kindly requested to provide an acknowledgement of receipt of this letter by sending us an email to the functional mailbox.’

217 In addition, the Commission informed the applicant of its intention to rely on that information in its letter sent to the applicant on 27 September 2019, in which it stated the following:

‘During the current investigation, we have informed [Evershine] of our intention to apply Article 18 (non-cooperation) of the basic Regulation due to certain deficiencies which were identified and our conclusion that it is engaged in circumvention practices.’

218 The Commission therefore rightly established the change in the applicant’s trade flows, which is characteristic of a circumvention practice, particularly in the light of the lack of additional information or data provided by the applicant despite the Commission’s requests to that end. It therefore cannot be claimed that the Commission relied on historic factors that do not demonstrate a circumvention practice.

219 A similar claim is then formulated by the applicant in relation to the Commission’s finding that there was no economic justification for the circumvention practices. According to the applicant, the Commission failed to assess all the matters raised by the applicant and, more particularly, its arguments relating to its production capacity.

220 In the present case, the Court notes that, as was established in the assessment of the first part of the present plea, the Commission complied with its obligation to seek economic justification for the change in trade.

221 Furthermore, the only justification provided in that regard by the applicant during the administrative procedure, first in its email of 25 June 2019 and then in its letter of 27 September 2019, is that, even taking account of their increase during the investigation period of the review, its exports remained significantly below its production capacity. However, it is not apparent from the documents before the Court that the applicant adduced evidence in support of that explanation.

222 That conclusion cannot be called into question by the applicant’s argument that an increase in exports due to inter-company channelling would automatically have led to a change in the type of product which it exported. No evidence was produced by the applicant to support that assertion, which was indeed briefly set out in its email to the Commission of 11 July 2019. The applicant merely highlights the differences between the production process applied to its products and that applied to Evershine’s and asserts that its products cannot be mixed with Evershine’s products, without providing any evidence to support those assertions.

223 Moreover, the applicant confuses its arguments relating to an alleged error of assessment of the facts by the Commission with those relating to the existence of a legitimate expectation that the economic justifications relating to its import flows would not be called into question. Contrary to the applicant’s assertions, the fact that the Commission did not, in its email of 9 July 2019, mention its export volumes does not mean that the applicant could reasonably have expected, following that direct communication, that the Commission would no longer be interested in its export volumes. It must be stated, in that regard, that the Commission was previously interested in those volumes and in their justification.

224 It follows that the Commission did not fail to examine certain items of evidence or make a manifest error in its assessment of the evidence in the context of the finding of a strong risk of circumvention practices attributed to the applicant.

225 In the light of the foregoing, the second part of the second plea must be rejected as unfounded, as must, consequently, the second plea in its entirety.

The third plea, alleging infringement of the rights of the defence and of the principle of non-discrimination, in that the contested regulation mentions new factual elements on which the applicant did not have the opportunity to take a position

226 The applicant submits that, despite the Commission’s obligation to inform the parties in accordance with settled case-law, the contested regulation contained two new factual elements on which the applicant had no opportunity to comment, namely (i) the increase in its exports between 2014 and 2018 and (ii) the fact that that increase was allegedly not explained by any economic justification.

227 The applicant notes that, in its communication of 27 September 2019, the Commission had informed the applicant of its intention to revoke its TARIC additional code on account of the risk of inter-company channelling resulting from its alleged links with Evershine, which, according to the Commission, was engaged in circumvention practices.

228 As regards, first, the increase in its exports, the applicant submits that the Commission at no time mentioned or directly requested information regarding its production and export patterns. It also claims that the Commission took that information out of context in the contested regulation. As regards, second, the economic justification for that increase, the applicant claims that it was only in the contested regulation that the Commission took into account, for the first time, the economic circumstances surrounding its exports. It observes that none of its exchanges with the Commission related to that issue.

229 Lastly, the applicant points out that the Commission specifically excluded it from its anti-circumvention investigation by not offering it the opportunity to provide a reply to the questionnaire. In those circumstances, it considers that the fact that it had no means of explaining the variations in its exports, whereas the other exporters under investigation were given such an opportunity, constitutes an infringement of its rights of defence and an infringement of the principle of non-discrimination.

231 In its third plea, the applicant claims that the Commission failed to inform it in good time of two elements, which it regards as new, in the contested regulation, relating to the increase in its exports to the European Union between 2014 and 2018 and the lack of economic justification for that increase, and that the Commission therefore deprived it of the opportunity to comment on those elements, unlike the other exporters under investigation, thereby infringing, first, its rights of defence and, second, the principle of non-discrimination. Those two claims must be examined separately.

232 It should be borne in mind that, according to settled case-law, where the EU institutions enjoy a broad discretion, respect for the rights guaranteed by the EU legal order is of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and the right of the person concerned to make its views known and to have an adequately reasoned decision (see judgment of 20 March 2019, Foshan Lihua Ceramic v Commission, T‑310/16, EU:T:2019:170, paragraph 103 and the case-law cited).

233 Similarly, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegations (see, to that effect, judgment of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317, paragraph 289 and the case-law cited).

234 In the present case, first of all, it should be noted that, in its letter of 28 May 2019 addressed to Evershine, the Commission stated that it had identified a number of failures in that company’s reply to the questionnaire sent to it in the context of the investigation. The Commission thus observed in particular that Evershine had not mentioned the links it had, or which it had had during the investigation period, with other companies, including the applicant. The Commission also stated that since those companies were most likely to be active in the tableware sector as producers or traders, they were supposed to submit their own replies to the questionnaire (see paragraph 26 above). As regards the applicant, the Commission expressly referred to the increase in its exports to the European Union between 2014 and 2018 and to the lack of economic justification for that increase (see paragraph 28 above). In that letter the Commission further noted that, in accordance with recitals 21 to 23 of the initiating regulation and as stated in the questionnaire, it intended to base its findings on the facts available, as it was allowed to do under Article 18(1) of the basic regulation in the event that an interested party did not provide the necessary information. It also stated that Evershine had the right to provide further explanations as regards that preliminary assessment, in accordance with Article 18(4) of the basic regulation (see paragraph 28 above).

235 In that regard, it should be noted that the Commission’s letter of 28 May 2019 was forwarded to the applicant by Evershine on 19 June 2019, as the applicant itself explained to the Commission in the email which it sent to the Commission on 25 June 2019 (see paragraph 29 above).

236 It should also be noted that, in its email of 25 June 2019, the applicant confirmed, as regards the increase in its exports to the European Union, the data provided by the Commission in its letter of 28 May 2019 and stated that that increase was due to an increase in its production capacity (see paragraph 29 above). It must therefore be held that that matter had been brought to the attention of the applicant by 19 June 2019 at the latest, the date on which it received from Evershine the Commission’s letter of 28 May 2019, and that it took a position in that regard on 25 June 2019, that is to say, several months before the adoption of the contested regulation.

237 It is indeed true that, as the applicant claims, the Commission did not expressly refer, in the communication which it sent to it on 27 September 2019, to the increase in the applicant’s exports to the European Union between 2014 and 2018 and to the lack of economic justification for that increase. In that communication, the Commission stated that it had found that the applicant was related to Evershine and that Evershine was engaged in circumvention practices. The Commission had stated that, in view of that situation, there was a risk of inter-company channelling and that, in order to limit that risk, it intended to repeal the applicant’s TARIC additional code and to subject the applicant, therefore, to a residual duty rate of 36.1%.

238 However, it is important to note that, in the general disclosure document which the Commission circulated to the undertakings concerned by the investigation on 27 March 2019, the Commission stated the following:

‘In early 2019, the Commission analysed available evidence on the patterns and channels of sales of ceramic tableware and kitchenware since the imposition of the original measures. The comparison of export figures between 2014 and 2018 revealed a sharp rise or fall in the exports of certain exporting producers, which constituted an indicator for channelling practices … Indeed, the volumes of imports of the product under investigation, as defined in recital (15), increased for certain exporting producers significantly between 2014 and 2018 …’

239 In the same document, the Commission also stated that ‘the investigation did not bring to light any due cause or economic justification for the channelling practices other than the avoidance of the residual or the higher duty in force on tableware and kitchenware originating in the [People’s Republic of China]’.

240 It must therefore be held that the applicant could not have been unaware that the Commission would base its assessment with regard to the applicant, inter alia, on the increase in its exports to the European Union and the lack of economic justification for that increase, and that it still had, at that stage, the opportunity to raise that matter with the Commission at the hearing on 10 October 2019. In any event, it should be noted that, in its letter of 18 October 2019, the applicant itself addressed the matter of the increase in its exports to the European Union and justified that increase by an increase in its production capacity (see paragraph 34 above).

241 Furthermore, as the Commission rightly observes, if the applicant doubted that its right to be heard had been respected during the administrative procedure as regards that finding by the Commission in its regard and the conclusions which it might draw from that finding, it was entitled to refer the matter to the hearing officer, which it failed to do.

242 It cannot therefore be held that the increase in the applicant’s exports to the European Union from 2014 to 2018 and the lack of economic justification for that increase, both of which were noted by the Commission in the contested regulation, constituted new elements on which the applicant did not have the opportunity to submit its comments in good time.

243 That finding cannot be called into question by the applicant’s argument that the Commission did not obtain directly from the applicant information concerning the increase in its export volumes to the European Union and any economic justification for that increase.

244 In so far as, by that argument, the applicant claims that the Commission did not allow it to complete a questionnaire, despite the offer which it had made in that regard in its letter of 25 June 2019, it should be noted, as pointed out by the Commission, that that institution was required to close the anti-circumvention investigation within nine months, in accordance with the basic regulation, with the result that it was entitled to consider that it was not possible to reorganise the various stages of the investigation by sending out new questionnaires and scheduling verification visits without compromising the possibility of completing the investigation within the prescribed period.

245 It follows from all of the foregoing that, contrary to the applicant’s assertions, it had the opportunity to comment on the two elements on which it relies and that, consequently, the Commission did not infringe its rights of defence.

The second claim, relating to the infringement of the principle of non-discrimination

247 In accordance with settled case-law, the principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 13 December 2007, Asda Stores, C‑372/06, EU:C:2007:787, paragraph 62 and the case-law cited).

248 Therefore, for the EU institutions to be accused of discrimination, they must be shown to have treated companies in comparable situations differently, thereby placing some companies at a disadvantage by comparison with others, without such differentiation being justified by the existence of substantial objective differences (see judgment of 23 October 2003, Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, T‑255/01, EU:T:2003:282, paragraph 60 and the case-law cited).

249 In the present case, the applicant submits that, unlike the other companies under investigation, it was not given the opportunity to comment on the increase in its exports to the European Union between 2014 and 2018, or on the Commission’s assertion that that increase is not explained by any economic justification. According to the applicant, the Commission thereby infringed the principle of non-discrimination.

251 As is apparent from the second part of the first plea and from the arguments in the context of the present plea relating to respect for the rights of the defence, the applicant was not in the same situation as, or in a situation comparable to, that of the other companies under investigation. Moreover, it has been shown that the Commission did, so far as possible, provide the applicant with opportunities to put forward its arguments on the two matters in dispute before the adoption of the contested regulation.

252 It follows that the Commission cannot be considered to have treated the applicant differently from other companies in breach of the principle of non-discrimination, with the result that the present claim must be rejected, as must, therefore, the third plea.

253 In the light of all of the foregoing, the action must be dismissed in its entirety.

254 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 those incurred by the Commission, in accordance with the form of order sought by the latter.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Guangxi Xin Fu Yuan v Commission (Dumping – Imports of ceramic tableware and kitchenware originating in China - Judgment) [2022] EUECJ T-144/20 (08 June 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T14420.html Cite as: ECLI:EU:T:2022:346, EU:T:2022:346, [2022] EUECJ T-144/20

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