Court of Justice in Bricmate

December 7, 2015

The European Commission has significant discretion in trade defense investigations, in particular when assessing injury. The Commission can make mistakes as long as these mistakes don’t invalidate its conclusions.

In a preliminary ruling of 10 September 2015, in case C 569/13 (Bricmate v. Swedish customs) the European Court of Justice refused to annul an anti-dumping Regulation imposing anti-dumping duties against Chinese ceramic tiles, despite having found that the Commission’s findings that the EU industry was suffering injury were based on incorrect statistical data. The Court of Justice ruled that the Regulation could be invalidated only if the corrected figures would call into question the overall conclusion reached by the Commission in its analysis of the injury indicators, which was not the case here.

The Court of Justice recalled (paragraph 46) that the determination of the existence of injury caused to the Union industry requires an appraisal of complex economic situations, for which the Commission enjoys significant discretion. In this context, the EU institutions had to demonstrate the existence of material injury to Union industry.

The Court underlined (at para. 58) that the substantive factual inaccuracies in this case did not affect significant price-undercutting margins or negative microeconomic indicators, such as stocks, sales prices, profitability, cash flow, return on investment, wages and production costs. Moreover, the errors made by the EU institutions (which the EU institutions admitted and corrected before the Court) had no significant impact on the determination of the injury actually caused to the Union industry and on the causal link between the imports and the injury (para. 64). Likewise, the Court found that the Commission failed to examine the accuracy of the Eurostat data relating to the average prices and volumes of imports from China (end of para. 68), but that that this failure did not invalidate the conclusions reached by the EU institutions (para. 69).

This alert was published on the blog of GreenLane, the Association of European Customs and Trade Law Firms.