Rechtbank Noord-Holland, 06-04-2018, ECLI:NL:RBNHO:2018:4729, AWB - 15 _ 4778

(35) The six Sri Lankan companies that submitted a request for exemption in accordance with Article 13(4) of the basic Regulation represented 69 % of the total imports from Sri Lanka to the Union during the RP. The overall import volumes from Sri Lanka were established on the basis of the data from Comext.

(36) One of the companies withdrew its request for exemption during the investigation on the grounds that it had stopped the production of bicycles in Sri Lanka. Therefore, data with regard to this company were disregarded.

(37) The cooperation of the second company was found to be insufficient. The data submitted was unverifiable as the value and volume of parts of Chinese origin purchased by the company could not be reliably determined. Moreover, the value and volume of the parts used in the manufacturing process could not be verified as they were purchased by a third party and only consigned to the company for assembly.

(38) Therefore, in accordance with Article 18(4) of the basic Regulation, the company was informed of the intention to disregard the information submitted by it and was granted a time limit to provide its comments. The company did not provide any comments.

(39) The cooperation of another company was also considered insufficient. The information provided could not be verified on-spot as the company withheld essential information. More specifically, it failed to prepare information explicitly requested prior to the on-spot verification, such as the working sheets or the list of its related companies, thus impeding the verification process. On the other hand, the purchase value of parts of local origin as reported by the company was found unreliable, notably as the investigation revealed at least some links between the company and its local supplier of bicycle parts that were going beyond a normal buyers and sellers relationship and which could not be clarified by the company.

(40) In accordance with Article 18(4) of the basic Regulation, the company was informed of the intention to disregard the information submitted by it and was granted a time limit to provide its comments. In response, the company contested the findings and submitted further evidence and explanations. None of the newly submitted evidence could have been accepted. Firstly, because it could not have been verified anymore since provided after the on-spot visit, In most cases the newly submitted evidence was found to be inconsistent with the explanations and evidence gathered on spot. As regards the newly submitted explanations, these were found to be insufficient as they did not address the main outstanding issues, in particular, the missing clarifications regarding related companies.

(41) Therefore the information provided by the company in question had to be disregarded.

(42) Findings with regard to this company were therefore based on facts available in compliance with Article 18 of the basic Regulation.

(…)

Transhipment

(77) The exports of the initially cooperating Sri Lankan companies amounted to 69 % of the total Sri Lankan exports to the Union in the RP. For three out of the six initially cooperating companies, the investigation did not reveal any transhipment practices. For the remaining exports there was no cooperation as explained in recitals 35 to 42.

(78) Therefore, in light of the change of the pattern of trade concluded in recital 58 between Sri Lanka and the Union within the meaning of Article 13(1) of the basic Regulation and the fact that not all Sri Lankan producers/exporters came forward and/or cooperated it can be concluded that the exports of those producers/exporters can be attributed to transhipment practices.

(79) The existence of transhipment of Chinese-origin products via Sri Lanka is therefore confirmed.

Assembly operation

(80) The sources of raw materials (bicycle parts) and the cost of production were analysed for each cooperating company to establish whether any assembly operation in Sri Lanka is circumventing the existing measures according to the criteria of Article 13(2) of the basic Regulation.

(81) For three out of the six companies that initially cooperated the Chinese-origin raw materials (bicycle parts) did not constitute 60 % or more of the total value of the parts of the assembled product. It was not necessary, therefore, to examine whether or not the value added to the parts brought in, during the assembly operation, was greater than 25 % of the manufacturing cost. Consequently, assembly operations were not established with regard to these three companies.

(82) Article 18(1) of the basic Regulation was applied to two other companies as explained in recitals 37 to 42 above, while one other company withdrew its cooperation during the on-spot verification as mentioned in recital 36 above. Therefore, the existence of assembly operations within the meaning of Article 13(2) of the basic Regulation was not established.”

Beoordeling van het geschil

Toepasselijkheid Uitvoeringsverordening 501/2013

Geldigheid Uitvoeringsverordening 501/2013

“1 By their appeals, [O BEDRIJF] Ltd, the Council of the European Union and the European Commission seek to have set aside the judgment of the General Court of the European Union of 19 March 2015, [L BEDRIJF] v Council (T-413/13, not published, ‘the judgment under appeal’ EU:T:2015:164), by which that court annulled Article 1(1) and (3) of Council Implementing Regulation (EU) No 501/2013 of 29 May 2013 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 990/2011 on imports of bicycles originating in the People’s Republic of China to imports of bicycles consigned from Indonesia, Malaysia, Sri Lanka and Tunisia, whether declared as originating in Indonesia, Malaysia, Sri Lanka and Tunisia or not (OJ 2013 L 163, p. 1) (‘the regulation at issue’), in so far as that regulation concerns [L BEDRIJF] (‘ [L BEDRIJF] ’).

(…)

Findings of the Court

-Substance

i) Preliminary observations

(…)

57 Next, with regard to the burden of proving circumvention, Article 13(1) of the basic regulation provides that circumvention of anti-dumping measures is established when 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.

(…)

ii) The errors of law in the application of Article 13(1) ot the basic regulation

(…)

74 Thus, that recital [i.e. recital 78 of the regulation at issue] forms part of a section of the regulation at issue headed ‘Transhipment’, which addresses the second of the four conditions set out in paragraph 57 above. In that section, the Council stated, first of all, in recital 77 of the regulation at issue, that for three out of the six initially cooperating companies, the investigation did not reveal any transhipment practices. For the remaining exports to the European Union, the Council stated that no cooperation had been forthcoming. Next, in recital 78 of the regulation, the Council stated, first, that it had been established in recital 58 that there had been a change in the pattern of trade between Sri Lanka and the European Union and, second, that not all Sri Lankan producer-exporters came forward and cooperated. It concluded that exports of those producer-exporters to the European Union could be ‘attributed’ to transhipment practices. Lastly, in recital 79 of the regulation at issue, the Council found that the existence of transhipment of Chinese-origin products via Sri Lanka was confirmed.

75 The conclusion as to the existence of transhipment operations therefore relates to all the producer-exporters who refused to cooperate and is based on two findings, that is, first, that there had been a change in the pattern of trade and, second, that some of the producer-exporters had failed to cooperate.

76 As is apparent from the principles set out in paragraphs 65 to 69 above, it is not possible to conclude on the basis of those two findings either that [L BEDRIJF] was involved in transhipment operations as an individual producer-exporter or that such practices existed at national level in Sri Lanka.

77 First, while the EU institutions are authorised, in the case of insufficient cooperation, to rely on a body of consistent evidence in concluding that anti-dumping measures have been circumvented, there is nevertheless no legal presumption whereby it is possible to infer directly from an interested party’s failure to cooperate that such circumvention exists. Furthermore, those institutions must have evidence to show that each of the four conditions for demonstrating circumvention set out in paragraph 57 above is met, including the condition that the change in the pattern of trade must stem from circumvention practices. It follows that the Council was not entitled to infer from the simple fact that some of the producer-exporters failed to cooperate that transhipment had occurred.

78 Second, as a change in the pattern of trade is the first of the four conditions to be met in order for circumvention to be properly established, the Council was not entitled to rely on the finding that there had been such a change as evidence of the fact that the second of the four conditions, which requires that such a change should stem from circumvention practices, was established.

79 Therefore, as the Council was not entitled to conclude, on the basis of those two findings in recital 78 of the regulation at issue, either that [L BEDRIJF] was involved in transhipment operations as an individual producer-exporter or that such practices existed at national level in Sri Lanka, the General Court did not err in law in finding, in paragraph 99 of the judgment under appeal, that there was no justification for the Council’s conclusion that [L BEDRIJF] had engaged in transhipment or, as a consequence, in upholding the action and annulling Article 1(1) and (3) of the regulation at issue, in so far as it concerned that company.”