JUDGMENT OF THE GENERAL COURT (Third Chamber)

11 September 2014 ( *1 )

‛Dumping — Imports of coated fine paper originating in China — Market economy treatment — Time-limit for adopting the MET decision — Diligent and impartial examination — Rights of the defence — Manifest error of assessment — Principle of sound administration — Burden of proof — Injury — Determination of the profit margin — Definition of the product concerned — Community industry — Causal link’

In Case T‑443/11,

Gold East Paper (Jiangsu) Co. Ltd , established in Jiangsu (China),

Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd , established in Jiangsu,

represented by V. Akritidis, Y. Melin and F. Crespo, lawyers,

applicants,

v

Council of the European Union , represented by J.-P. Hix, acting as Agent, assisted initially by G. Berrisch, A. Polcyn, lawyers, and by N. Chesaites, Barrister, and subsequently by B. O’Connor, Solicitor, and by S. Gubel, lawyer,

defendant,

supported by

European Commission , represented by M. França and A. Stobiecka-Kuik, acting as Agents,

and by

Cepifine AISBL , established in Brussels (Belgium),

Sappi Europe SA , established in Brussels,

Burgo Group SpA , established in Altavilla Vicentina (Italy),

Lecta SA , established in Luxembourg (Luxembourg),

represented by L. Ruessmann and W. Berg, lawyers,

interveners,

ACTION for annulment of Council Implementing Regulation (EU) No 451/2011 of 6 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of coated fine paper originating in the People’s Republic of China ( OJ 2011 L 128, p. 1 ), in so far as it concerns the applicants,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 12 November 2013,

gives the following

Judgment

Legal context

1. WTO law

1Article VI.1 of the General Agreement on Tariffs and Trade 1994 (GATT) states that ‘[t]he contracting parties recognise that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry’.

2The Agreement on Implementation of Article VI of GATT ( OJ 1994 L 336, p. 103 ) (‘the Anti-Dumping Agreement’) is contained in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) ( OJ 1994 L 336, p. 3 ).

3Article 6.8 of the Anti-Dumping Agreement is worded as follows:

‘In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph.’

4Annex II to the Anti-Dumping Agreement, entitled ‘Best Information Available in Terms of Paragraph 8 of Article 6’, provides in paragraph 7 as follows:

‘If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation. It is clear, however, that if an interested party does not cooperate and thus relevant information is being withheld from the authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate.’

5Article 32.1 of the WTO Agreement entitled ‘Agreement on Subsidies and Countervailing Measures’ ( OJ 1994 L 336, p. 156 ; ‘the ASCM’) provides that ‘[n]o specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement’.

2. EU law

6The basic anti-dumping legislation is contained in Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community ( OJ 2009 L 343, p. 51 , corrigendum in OJ 2010 L 7, p. 22 ; ‘the basic regulation’), which replaced Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community ( OJ 1996 L 56, p. 1 ), as amended.

7It follows from Article 2(7)(b) of the basic regulation that ‘[i]n anti-dumping investigations concerning imports from the People’s Republic of China, Vietnam and Kazakhstan and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c), that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned[; w]hen this is not the case, the rules set out under subparagraph (a) shall apply.’

8Article 2(7)(c) of that regulation states that:

‘A claim under subparagraph (b) must be made in writing and contain sufficient evidence that the producer operates under market economy conditions, that is if:

—

decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values,

—

firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes,

—

the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts,

…

A determination whether the producer meets the abovementioned criteria shall be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment. This determination shall remain in force throughout the investigation.’

9Article 3 of the basic regulation provides:

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

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

(a)

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

(b)

the consequent impact of those imports on the Community industry.

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

4. Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports shall be cumulatively assessed only if it is determined that:

(a)

the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and that the volume of imports from each country is not negligible; and

(b)

a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Community product.

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

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

7. Known factors other than the dumped imports which at the same time are injuring the Community industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and Community producers, developments in technology and the export performance and productivity of the Community industry.

8. The effect of the dumped imports shall be assessed in relation to the production of the Community industry of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers’ sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be assessed by examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.

9. A determination of a threat of material injury shall be based on facts and not merely on an allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent.

In making a determination regarding the existence of a threat of material injury, consideration should be given to such factors as:

(a)

a significant rate of increase of dumped imports into the Community market indicating the likelihood of substantially increased imports;

(b)

sufficient freely disposable capacity of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Community, account being taken of the availability of other export markets to absorb any additional exports;

(c)

whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports;

(d)

inventories of the product being investigated.

No one of the factors listed above by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury will occur.’

10Article 4 of the basic regulation, concerning the definition of Community industry, provides in paragraph 1 thereof as follows:

‘For the purposes of this Regulation, the term “Community industry” shall be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Community production of those products, except that:

(a)

when producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term “Community industry” may be interpreted as referring to the rest of the producers;

(b)

in exceptional circumstances the territory of the Community may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:

(i)

the producers within such a market sell all or almost all of their production of the product in question in that market; and

(ii)

the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the Community. In such circumstances, injury may be found to exist even where a major portion of the total Community industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such a market.’

11Article 5 of the basic regulation, concerning the initiation of proceedings, provides in paragraph 4 thereof as follows:

‘An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Community producers of the like product, that the complaint has been made by or on behalf of the Community industry. The complaint shall be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated when Community producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the Community industry.’

12Article 9 of the basic regulation, on termination without measures, provides in paragraph 4 thereof as follows:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. Where provisional duties are in force, a proposal for definitive action shall be submitted no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.’

13Article 18 of the basic regulation, concerning non-cooperation, reads as follows:

‘1. In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits provided in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made of facts available. Interested parties should be made aware of the consequences of non-cooperation.

…

3. Where the information submitted by an interested party is not ideal in all respects it should nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability.

…

6. 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 if it had cooperated.’

Background to the dispute

14The applicants, Gold East Paper (Jiangsu) Co. Ltd (‘GE’) and Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd (‘GHS’), are related companies in the Asia Pulp and Paper China group (‘the APP Group’) which produce coated fine paper in China, which they export to the European Union.

1. Investigation

15Coated fine paper was the subject of two separate investigations which were conducted in parallel. First, an anti-dumping investigation led to the adoption of Council Implementing Regulation (EU) No 451/2011 of 6 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of coated fine paper originating in the People’s Republic of China ( OJ 2011 L 128, p. 1 ; ‘the contested regulation’). Secondly, an anti-subsidy investigation led to the adoption of Council Implementing Regulation (EU) No 452/2011 of 6 May 2011 imposing a definitive anti-subsidy duty on imports of coated fine paper originating in the People’s Republic of China ( OJ 2011 L 128, p. 18 ).

16On 18 February 2010, a notice of the European Commission relating to the initiation of an anti-dumping proceeding concerning imports of coated fine paper originating in the People’s Republic of China was published in the Official Journal of the European Union ( OJ 2010 C 41, p. 6 ).

17The original deadline for the interested parties to submit their market economy treatment (‘MET’) claims was 30 March 2010. On 22 March 2010, the Commission extended that deadline, at the APP Group’s request, until 12 April 2010.

18On 12 April 2010, the applicants submitted MET claims for themselves and for all their related companies involved in the production and sale of coated fine paper, or the production of raw materials, as required at the time by the Commission.

19On 16 April 2010, the applicants submitted comments on certain aspects of the investigation and on the complaint filed by Cepifine AISBL, the European association of fine paper manufacturers, which is the complainant in this investigation.

20The Commission sent four letters to the APP Group in order to extract the relevant data to support their MET claims:

—

in its letter of 19 May 2010, the Commission asked GE to complete the claim form by 21 May 2010;

—

in its letter of 21 May 2010, the Commission asked GE to attach relevant annexes and translations by 1 June 2010, on which date GE asked for an extension of the deadline which the Commission granted until 4 June 2010;

—

in its letter of 27 May 2010, the Commission asked GHS to make the relevant annexes available to Commission officials on the first day of the on-site verification visit;

—

in its letter of 2 June 2010, the Commission asked the APP Group to complete and clarify sections of the MET claim forms.

21By letter of 8 June 2010, the applicants commented on the implications for the MET assessment of having an anti-subsidy investigation initiated in parallel.

22Between 8 and 18 June 2010, the Commission carried out a first on-site verification at the premises of four exporting producers related to the APP Group, including the applicants.

23The Commission carried out a second on-site verification at the applicants’premises between 23 June and 12 July 2010 in order to verify their responses to the questionnaire. On 9, 10 and 13 September 2010, the Commission carried out a third on-site verification at the premises of APP Italy, the applicants’ related EU trader.

24On 2 September 2010, the Commission sent a MET disclosure document, in which it provisionally concluded that none of the four exporting producers related to the APP Group met the first, second and third MET criteria. The time-limit for comments by the applicants was set by the Commission at 12 September 2010.

25On the same date, the Commission sent the Anti-dumping Advisory Committee (‘ADC’) a copy of its working-document proposal to reject the applicants’ MET claims.

26On 9 September 2010, the applicants requested an extension of the deadline for comments on the Commission’s MET disclosure document until 28 September 2010. The Commission granted a deadline extension only until 16 September 2010. It also proposed to hold a hearing on 17 September 2010 and asked the applicants to confirm whether this date was convenient.

27On 14 September 2010, at the meeting with the ADC, the proposal concerning the applicants’ MET claim was discussed.

28By email of 17 September 2010, the applicants filed preliminary comments on the disclosure document concerning their MET claims, and explained that they would submit a completed and revised letter by 27 September 2010.

29On the same day, a hearing was held with the Commission.

30On 21 September 2010, the Commission sent a summary of the applicants’ comments on the MET disclosure document to the ADC, and set 24 September 2010 as the deadline for views from the ADC.

31On 12 October 2010, the Commission adopted its decision relating to the applicants’ MET claims (‘the MET decision’) in which it confirmed the rejection of those claims.

32On the same day, the applicants wrote a letter to the Commission criticising the fact that the Commission had adopted its MET decision before the hearing in the presence of the Hearing Officer could take place. Additional injury comments were also submitted.

33On 13 October 2010, the applicants submitted a summary of the questions they wished the Commission to answer.

34On 15 October 2010, the Commission held a hearing in the presence of the Hearing Officer. On 19 October 2010, the applicants sent comments to the Commission summarising the claims made during the hearing. On 28 October 2010, the applicants submitted additional comments on the MET disclosure document.

35On 17 November 2010, the Commission sent the applicants a letter accompanied by a copy of Commission Regulation (EU) No 1042/2010 of 16 November 2010 imposing a provisional anti-dumping duty on imports of coated fine paper originating in the People’s Republic of China ( OJ 2010 L 299, p. 7 , ‘the provisional regulation’), a summary of the methodologies used for the calculations of dumping and injury margins and a reply to the arguments raised by the applicants.

36On 13 and 17 December 2010, by three letters, the applicants submitted comments on the provisional measures.

37On 16 March 2011, the Commission sent the applicants a disclosure document, in which it explained that it intended to propose to the Council of the European Union the imposition of a definitive anti-dumping duty on the applicants’ exports to the EU. The applicants submitted their comments on 28 March 2011.

38On 29 March 2011, at the Hearing Officer’s request, the Commission sent to the applicants an updated note for the file, in which the methodology for calculating the target profit margin in the absence of dumped imports was explained.

39On 11 April 2011, the applicants submitted their comments on the methodology used by the Commission to establish the target profit margin.

2. The contested regulation

40The contested regulation was adopted by the Council on 6 May 2011.

41In the contested regulation, the applicants were refused MET on the ground (i) that it was in particular impossible to establish the existence of payments relating to the transfer of shares and to the cost of major raw material inputs, (ii) that the fundamental principles of the International Accounting Standards had been disregarded both in the accounts and in their audit, which called into question the reliability of the companies’ accounts, and (iii) that there were significant distortions with respect to land use rights relevant to the applicants.

42In addition, rolls of paper suitable for use in web-fed presses were not included in the definition of the product concerned (recitals 17 and 41 of the contested regulation). The target profit of 8% was considered as the level that the industry could obtain in the absence of dumped imports (recital 158 of the contested regulation).

43Article 1 of the contested regulation imposed a definitive anti-dumping duty of 8% on imports into the Union of coated fine paper manufactured by the applicants. Under Article 1(3), with regard to the 20% rate of the definitive anti-dumping duty provided for in Article 1(2), 12% would not be collected for the applicants, in so far as the corresponding amount was collected in accordance with Implementing Regulation No 452/2011 (see paragraph 15 above).

Procedure and forms of order sought

44By application lodged at the Court Registry on 8 August 2011, the applicants brought the present action.

45By document lodged at the Court Registry on 24 November 2011, the Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council.

46By document lodged at the Court Registry on 1 December 2011, Cepifine, Sappi Europe SA, Burgo Group SpA and Lecta SA (‘the private interveners’) sought leave to intervene in the present proceedings in support of the form of order sought by the Council. In its observations, lodged on 24 January 2012, the Council raised no objections to that intervention.

47By order of 23 January 2012, the President of the Third Chamber granted the Commission leave to intervene. The Commission lodged its statement within the prescribed period.

48On 8 February 2012, the applicants requested confidential treatment, in respect of the private interveners, of certain confidential information contained in the written pleadings and also in the respective annexes. They produced a non-confidential version of those various documents.

49By order of 8 March 2012, the President of the Third Chamber granted the private interveners leave to intervene in support of the form of order sought by the Council. In the same order, the President of the Third Chamber reserved the decision on whether the applicants would receive the Report for the Hearing in order for them to identify the elements considered to be confidential, and the decision on whether the private interveners would receive a provisional non-confidential version of the Report for the Hearing in order to submit any comments on the application for confidential treatment.

50Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure. In the context of measures of organisation of procedure, the Court invited the Council to produce certain documents. The Council did so within the prescribed time-limit.

51The main parties to the dispute and the interveners presented oral argument and replied to the oral questions put to them by the Court at the hearing on 12 November 2013.

52The applicants claim that the Court should:

—

annul the contested regulation in so far as it concerns them;

—

order the Council to pay the costs.

53The Council contends that the Court should:

—

dismiss the action;

—

order the applicants to pay the costs.

54The Commission contends that the Court should:

—

dismiss the action;

—

order the applicants to pay the costs.

55The private interveners support the form of order sought by the Council.

Law

56In support of their action, the applicants put forward eight pleas in law. Those pleas may be placed in two categories.

57The pleas falling within the first category relate to the applicants’ MET claims and allege:

—

first, infringement of the second subparagraph of Article 2(7)(c) of the basic regulation, in that the decision not to grant the applicants MET was taken on the basis of what the Commission knew would be the effect of such a refusal on their dumping margin;

—

second, infringement of an essential procedural requirement laid down in the second subparagraph of Article 2(7)(c) of the basic regulation and infringement of the rights of the defence;

—

third, manifest errors of assessment in the application of the first subparagraph of Article 2(7)(c) of the basic regulation and a failure to state reasons;

—

fourth, unfair and partial handling of the investigation and excessive burden of proof.

58The pleas falling within the second category relate to the assessment of injury and allege:

—

fifth, infringement of Article 3(2) of the basic regulation;

—

sixth, infringement of Article 3(1) and Article 9(4) of the basic regulation;

—

seventh, infringement of Article 3, Article 4(1) and Article 5(4) of the basic regulation;

—

eighth, infringement of Article 3(2) and (7) of the basic regulation.

1. The scope of the claim for annulment

59The Court notes, as a preliminary point, that the contested regulation imposes a definitive anti-dumping duty on imports of coated fine paper originating in China.

60In several of their pleas, the applicants seek annulment of the contested decision in its entirety. However, when setting out the subject-matter of the action and form of order sought, the applicants just contest the legality of the anti-dumping duty in so far as it is imposed on them and concerns them.

61In that regard, it must be stated that any illegality of that duty would affect the legality of the contested regulation only in so far as that regulation imposes an anti-dumping duty on the applicants. By contrast, it would not affect the legality of other parts of the contested regulation, namely, in particular, the anti-dumping duties imposed on the other undertakings affected by that regulation.

62It is clear from the case-law that, where a regulation which introduces an anti-dumping duty imposes different duties on a series of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings; consequently, an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions of the regulation that exclusively concern it (see, by analogy, Case C-239/99 Nachi Europe [2001] ECR I-1197 , paragraph 22 and the case-law cited).

63In those circumstances, the present action for annulment must be treated as seeking only partial annulment of the contested regulation, in so far as it imposes a definitive anti-dumping duty on the applicants.

2. The pleas relating to the applicants ’ MET claims

The first plea, alleging infringement of the second subparagraph of Article 2(7)(c) of the basic regulation, in that the decision not to grant the applicants MET was taken on the basis of what the Commission knew would be the effect of such a refusal on their dumping margin

64Within the context of their first plea, the applicants submit that the decision not to grant them MET was taken on the basis of what the Commission knew would be the effect of such a refusal on their dumping margin, in breach of the second subparagraph of Article 2(7)(c) of the basic regulation, as interpreted by the Court in Case T-138/02 Nanjing Metalink v Council [2006] ECR II-4347 , paragraph 44, and Case T-299/05 Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II-565 , paragraphs 127 and 138.

65The applicants also plead a ‘blatant breach of the … rights of defence’ since the Commission ‘went out of its way … in order to dismiss any and all explanations [which they submitted] during the investigation to demonstrate that they do meet the MET criteria’.

67As regards infringement of the second subparagraph of Article 2(7)(c) of the basic regulation, the applicants state that, on the date of the MET proposal, the Commission had all the detailed information allowing it to calculate the applicants’ dumping margin both with and without MET, in China and the analogue country.

68During the hearing, the applicants stated, in response to a question put by the Court, that they did not really attach importance to the three-month time-limit as such, but rather to the protection of the rights of the exporting producers.

69The second subparagraph of Article 2(7)(c) of the basic regulation provides that a determination whether a producer is operating under market economy conditions ’shall be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment’ and that ‘[t]his determination shall remain in force throughout the investigation’.

70Contrary to the applicants’ submission, in Nanjing Metalink v Council , Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council , paragraph 64 above, and in the judgment of 8 November 2011 in Case T‑274/07 Zhejiang Harmonic Hardware Products v Council , not published in the ECR, the Court did not find that the legal rationale of the second subparagraph of Article 2(7)(c) of the basic regulation justified the annulment of a regulation imposing definitive anti-dumping duties on an undertaking every time the Commission was in a position to know the effect of a MET decision on the calculation of that undertaking’s dumping margin and simply because it was in possession of such knowledge at the time the MET decision was taken. It should be noted, as observed by the Council, that there is no immediate link between the three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of the basic regulation and any knowledge on the part of the Commission of the effect of a MET decision on an undertaking’s dumping margin.

71Moreover, the basic regulation does not require that the MET decision should be adopted at a time when the Commission does not possess information enabling it to ascertain the effect of a MET decision on an undertaking’s dumping margin. Even where the time-limit in question has not in any way been exceeded at the time the MET decision is adopted, it cannot be excluded that the Commission may take such a decision even though it is already in possession of information enabling it to calculate its effect on the dumping margin of the undertaking concerned.

72In any event, it is clear from Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I-9147 that, on the basis of the principle of legality and the principle of sound administration and provided that the procedural safeguards in the basic regulation are observed, the Court of Justice favours the correct application of the substantive criteria laid down in Article 2(7)(c) of the basic regulation over a requirement that a MET decision be unalterable, or that there be no knowledge of the effect of a MET decision on an undertaking’s dumping margin at the time when such a decision is adopted.

73As the Court observed in Zhejiang Harmonic Hardware Products v Council , paragraph 70 above (paragraph 39), the Court of Justice considered in Foshan Shunde Yongjian Housewares & Hardware v Council , paragraph 72 above, that, in the light of the principle of legality and the principle of sound administration, Article 2(7)(c) of the basic regulation cannot be interpreted in such a manner as to oblige the Commission to propose to the Council definitive measures which would perpetuate, to the detriment of the undertaking concerned, an error made in the original assessment of the substantive criteria established by that provision. Accordingly, if the Commission realises in the course of the investigation that, contrary to its original assessment, an undertaking meets the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic regulation, it must take appropriate action, while at the same time ensuring that the procedural safeguards provided for in the basic regulation are observed ( Foshan Shunde Yongjian Housewares & Hardware v Council , paragraph 72 above, paragraphs 111 and 112).

75In the present case, it is common ground that the final decision rejecting the applicants’ MET claims was not adopted within the three-month period laid down in the second subparagraph of Article 2(7)(c) of the basic regulation. The notice of initiation of the proceeding was published in the Official Journal on 18 February 2010. However, the final decision rejecting the MET claim was proposed on 2 September 2010 and confirmed on 12 October 2010.

76Furthermore, it is apparent from the file that the applicants’ responses to the anti-dumping questionnaire were submitted to the Commission on 7 and 10 May 2010 respectively and that anti-dumping verification visits took place between 23 June and 12 July 2010. The verification visits in the analogue country were carried out in the last week of August 2010. Only the visits to verify the applicants’ export sales via their related EU company had not yet taken place. According to the applicants, the sequence of events presented shows that, when the Commission disclosed its proposal to reject the applicants’ MET claims, it had all the documents and data allowing it to calculate the applicants’ dumping margin both in case MET was granted or not.

77The Council’s argument, supported by the Commission, that the Commission had not been in a position to establish the effect of the MET decision on the dumping margin by the time it sent its MET disclosure document to the applicants cannot, therefore, succeed.

78In that regard, it should be borne in mind that the granting of MET by reference to its effect on the calculation of the dumping margin does not presuppose awareness of the exact dumping margin, calculated on the basis of the applicants’ normal value information, but only awareness of information as to the effect that granting MET may have on that margin according to the two possible methods of calculation.

79In the light of the foregoing considerations, even if it were accepted as relevant that as a result of its disregarding the three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of the basic regulation the Commission might have known the effect of the decision concerning the applicants’ MET status on their dumping margin since it might be argued that the Commission could have been influenced by that knowledge in adopting such a decision, it would have to be held that the applicants have failed to show that the contested regulation might have been substantively different but for the purported irregularity affecting the procedure for the adoption of the MET decision.

80The applicants’ argument that the Commission took its decision rejecting their MET claim in accordance with what it knew of the impact of that decision on their dumping margin, with the result that that decision might have been different if the Commission had not had such information available to it, cannot be accepted.

81Mere knowledge of the effect of a MET decision on an undertaking’s dumping margin does not necessarily mean that such a decision — and, consequently, the regulation imposing an anti-dumping duty — might have been substantively different if that decision had been adopted within the three-month time-limit laid down in the second subparagraph of Article 2(7)(c) of the basic regulation.

82Even if the Commission has information enabling it to calculate a producer’s dumping margin at the time when the decision on that producer’s MET status is taken, it is still possible that that decision and the regulation imposing definitive anti-dumping duties might not have been any different.

83That might be the case where it is clear that such a producer could not be granted MET because the Commission correctly concluded that the producer concerned did not meet the criteria for granting MET laid down in Article 2(7)(c) of the basic regulation and that the requirements for imposing anti-dumping duties were satisfied.

84The Commission’s assessment of compliance with the MET criteria in the present case will be examined in the context of the third plea.

85In the present case, first, the applicants merely assert that the fact that the Commission had all the documents and information allowing it to calculate their dumping margin ‘calls into question the impartiality of the Commission’s subsequent MET [d]ecision’ and that, ‘[a]t the very least’ it creates a substantiated and reasonable suspicion that the Commission may have decided to reject the [a]pplicants’MET claim not on the basis of an objective examination of the MET claim’s merits, but because it wanted to impose anti-dumping duties against the [a]pplicants’ imports’.

86Second, the applicants do not indicate which aspects of the MET decision might have been assessed differently if the Commission’s decision had been taken within the three-month time-limit or in the absence of any purported knowledge of the effect of that decision on the dumping margin.

87The applicants submit only that ‘had MET been granted [to them], their dumping margin — based on a comparison of their export sales with their profitable domestic sales in China — would have been 0.01%, i.e., within the de minimis level of 2%’, and that, ‘[t]herefore, the Commission was fully aware of the impact of its MET [d]ecision on the outcome of the investigation as granting MET would lead to the termination of the investigation as far as the [a]pplicants are concerned’.

88The applicants add that ‘[h]ad the Commission been unaware of the de minimis dumping margin (in case MET was granted) or the very high dumping margin by involving the analogue country’s normal value (in case MET was rejected) when it adopted its MET decision, [the Commission] might well have applied its discretion in this regard differently than it actually did in the investigation’.

89The applicants conclude that ‘the rejection of [their] MET claim may have been decided in the present case “on the basis of its effect on the calculation of the dumping margin”’.

90In that context, even if, by their argument, the applicants intended to allege misuse of powers on the part of the Commission, it must be rejected. It is established case-law that a European Union decision or measure is vitiated by a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been adopted in order to achieve purposes other than those for which it was intended (Case C-323/88 Sermes [1990] ECR I-3027 , paragraph 33; Case T-167/94 Nölle v Council and Commission [1995] ECR II-2589 , paragraph 66; and T-2/95 Industrie des poudres sphériques v Council [1998] ECR II-3939 , paragraph 376). The applicants have failed to provide any such evidence.

91In addition, the applicants consider that their conduct did not have the effect of delaying the Commission’s adoption of the decision relating to their MET claims, as the Council and the Commission claim, since the Commission insisted that the dumping information be submitted at the same time as it was assessing the MET claims and requested additional information.

92However, the issue of responsibility for the delay does not appear relevant in the present case and will therefore not be examined.

93Consequently the first plea must be rejected.

The second plea, alleging infringement of an essential procedural requirement laid down in the second subparagraph of Article 2(7)(c) of the basic regulation and infringement of the rights of the defence

94This plea is divided into two parts, relating to effective consultation of the ADC and to infringement of the rights of the defence, respectively.

The first part: effective consultation of the ADC

102Moreover, the possibility that an infringement of provisions governing the consultation of a committee may affect the legality of the measure ultimately adopted is not called into question by the fact that the committee’s opinion is not binding.

103In the present case, it should be recalled that, on 2 September 2010, the Commission sent its provisional MET disclosure document simultaneously to the applicants and to the ADC. The time-limit set by the Commission for comments by the applicants was 12 September 2010. In response to the applicant’s request to that effect, the Commission extended the deadline until 16 September 2010. The meeting of the ADC took place on 14 September 2010. On 17 September 2010, the applicants filed preliminary comments on the provisional disclosure document. The hearing took place on the same day. On 21 September 2010, after having started a full analysis and assessment of the MET claim, the Commission sent to the ADC a summary of the applicants’ comments on the MET disclosure document and during the hearing. It also set 24 September 2010 as the deadline for views from the ADC. During the hearing before the Court, the Council stated, in response to a question put to it on this point, that the members of that committee had access to the file and that they could ask the Commission to provide certain documents collected during the investigation. According to the applicants, the members of the committee received only the summary. The applicants therefore stressed the importance of that summary.

104It should be noted, as observed by the Council, that (i) the applicants do not provide any evidence as to how the Commission allegedly misled the ADC, (ii) they do not identify the ‘serious inaccuracies and omissions’ to which they refer, (iii) they do not describe in what way the Commission misrepresented the applicants’ comments on the MET proposal and (iv) they do not explain how the Commission ‘was in any way hindered in its ability to amend its proposal following the [a]pplicants’ comments’.

105It should be observed that it is apparent from the file, first of all, that the applicants did not respect the time-limit, which had been extended until 16 September 2010, for communicating their comments on the MET disclosure document (see paragraph 103 above). Next, the applicants stated, in their comments made by email of 17 September 2010, that in that submission they analysed all claims made by the Commission and that ‘[w]here the supporting information necessary to substantiate certain explanations provided by [the APP Group] was not available at the time [the APP Group’s] comments were due, [they] have indicated so’ and that ‘[a] completed and revised letter [would] be submitted once all supporting documents [were] available and no later than 27 September 2010’. Finally, the completed and revised comments were submitted by the applicants only on 28 October 2010.

106Therefore, the applicants cannot rely on the fact that the Commission did not wait to receive their comments on the provisional disclosure document before referring the matter to the ADC or, in any event, did not defer discussion of the proposal until a later meeting of that committee after it received and analysed those comments, in order to plead infringement of an essential procedural requirement laid down in Article 2(7)(c) of the basic regulation, affecting the legality of the contested regulation.

107Moreover, an examination of the applicants’ comments on the disclosure document and of the document sent by the Commission on 21 September 2010 to the members of the ADC regarding those comments shows that the Commission did not submit a MET proposal containing ’serious inaccuracies and omissions’ to that committee. In that regard, it should be noted that the Commission drew up a summary of the applicants’ comments with respect to the first three MET conditions, setting out new information in relation to the information contained in the provisional disclosure document of 2 September 2010.

108Consequently, it must be held that the ADC was not misled in a material respect by inaccuracies or omissions and that it was able to deliver its opinion in full knowledge of the facts.

109The first part of this plea must therefore be rejected as unfounded.

The second part: infringement of the rights of the defence

110In the present case, the applicants plead infringement of the rights of the defence and of the right to due process in so far as on 2 September 2010 the Commission sent a copy of its working-document proposal to the ADC and the MET disclosure document to the applicants.

111They claim, in that regard, that on 2 September 2010 the Commission had already decided to reject their MET claim and had no interest in analysing their comments before reaching a final proposal to be submitted to the ADC for consultation and that, in addition, the Commission ‘[had] refused to correct its [provisional] MET disclosure [document]’ in response to their comments of 16 September 2010.

112According to the applicants, that ‘is likely to have influenced the conclusion which the Commission could have drawn from these comments’.

114Therefore, the second part of the second plea must be rejected as unfounded.

115Consequently, the second plea must be rejected in its entirety.

The third plea, alleging manifest errors of assessment in the application of the first subparagraph of Article 2(7)(c) of the basic regulation and a failure to state reasons

Preliminary observations

116According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives of the rules of which it is part (see Case C-17/03 VEMW and Others [2005] ECR I-4983 , paragraph 41 and the case-law cited).

117In addition, where the textual and historical interpretations of a regulation, and in particular of one of its provisions, do not permit its precise scope to be assessed, the legislation in question must be interpreted by reference to its purpose and general structure (see, by analogy, Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375 , paragraph 168, and Case T-102/96 Gencor v Commission [1999] ECR II-753 , paragraph 148).

119According to Article 2(7)(b) of the basic regulation:

‘In anti-dumping investigations concerning imports from [China], normal value will be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c) that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.’

120Article 2(7)(c) of the basic regulation states that ‘[a] claim under [Article 2(7)(b)] must be made in writing and contain sufficient evidence that the producer operates under market economy conditions, that is if [inter alia]: decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values’.

121It is apparent from the provisions cited above that the burden of proof lies with the producer wishing to claim MET under Article 2(7)(b) of the basic regulation. Accordingly, it is not incumbent on the EU institutions to prove that the producer does not satisfy the conditions laid down for recognition of such status. On the contrary, it is for the EU institutions to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic regulation are fulfilled in order to grant it MET, and it is for the EU judicature to examine whether that assessment is vitiated by a manifest error (see, to that effect, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council , paragraph 64 above, paragraph 83 and the case-law cited).

122Moreover, it is apparent from the case-law that the EU institutions have a wide power of appraisal when assessing factual situations of a legal and political nature in the country concerned in order to determine whether an exporter can be granted MET. Consequently, the review by the EU judicature of such assessments by the institutions must be confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers (see Case T-35/01 Shanghai Teraoka Electronic v Council [2004] ECR II-3663 , paragraphs 48 and 49 and the case-law cited).

123It is also settled case-law that, where the EU institutions have such a power, respect for the rights guaranteed by the Union legal order in administrative procedures is of even more fundamental importance and that those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C-269/90 Technische Universität München [1991] ECR I-5469 , paragraph 14, and Nölle v Council and Commission , paragraph 90 above, paragraph 73).

124In the present case, the applicants were refused MET on the ground that they had not shown that they satisfied the first three criteria laid down in the first subparagraph of Article 2(7)(c) of the basic regulation (see paragraph 41 above), namely those seeking to ensure that:

—

decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values;

—

firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes;

—

the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts.

The alleged failure to state reasons

125It is apparent from the heading of the present plea that the applicants also allege a failure to state reasons; they did not, however, mention it at the stage of the reply. In that regard, it should be borne in mind that the summary of the pleas in law on which an application is based, referred to in Article 44(1)(c) of the Rules of Procedure, does not require that those pleas be set out in a particular manner. It has consistently been held that an applicant’s pleas must be interpreted in terms of their substance rather than of their classification (Joined Cases 19/60, 21/60, 2/61 and 3/61 Fives Lille Cail and Others v High Authority [1961] ECR 281 ). However, it should be noted that the applicants do not put forward, in a clear and obvious manner, any argument relating to the alleged failure to state reasons, with the result that it is not necessary to carry out an examination in this respect. Consequently, it is necessary to examine only the arguments alleging manifest errors of assessment in the application of the first subparagraph of Article 2(7)(c) of the basic regulation.

126In that regard, it should be noted that the criteria laid down in Article 2(7)(c) of the basic regulation are cumulative; consequently, should an exporting producer fail to fulfil one of them, its MET claim must be rejected ( Shanghai Teraoka Electronic v Council , paragraph 122 above, paragraph 54).

127The third part of this plea, relating to the third MET criterion, should be considered first.

The third part, relating to the third MET criterion

128Recital 39 of the provisional regulation states that:

‘[T]he investigation revealed the existence of significant distortions with respect to land use rights (LUR) relevant to the four related exporting producers. Such distortions point to the conclusion that the LUR are not granted and maintained in accordance with market economy conditions. It was also established on spot that significant distortions exist in loan attribution to the four related exporting producers from the Chinese banking/financial sector. Most of the loans were given by banks with significant shareholding by the State while clear indications exist that general state industrial policies were taken into consideration by financial institutions when establishing the group’s creditworthiness which resulted in providing loans to companies that were in a bad financial situation. Account taken of all the above, it was consequently concluded that the four related exporting producers have not shown that they fulfil criterion 3.’

– Land use rights

129In its MET disclosure document, the Commission stated that:

—

the allocations of land for use were linked to an explicit investment undertaking of the party awarded the LUR; in case the business investment is not made within a certain time period the State can take back the land without paying any kind of compensation;

—

no compensation for the investor/company is foreseen at the regular termination date of the LUR agreement; in other words in these cases the State expects that the private investor will make its investment, i.e. construct the factory and at the end of the lease period leave all fixed assets (buildings, machines etc.) for free to the State;

—

the final responsibility for approving the assignments of LUR lay with the State Planning Commission/Ministry of Commerce;

—

Suzhou Industrial Park set the price for the LUR in line with clear instructions, issued by the State Council of the People’s Republic of China, on the methods to set land prices;

—

those distortions lead to the conclusion that the LUR was not obtained by the company under market economy conditions.

130It is apparent from recital 46 of the provisional regulation that the APP Group, to which the applicants belong, submitted that ‘the distortions identified with respect to LUR allocation is not specific to [China] but exists also in Europe as these are restrictions imposed by authorities in charge of attracting investors and ensuring that investments comply with the applicable regulatory requirements’.

131Within the context of the present action, the applicants assert, firstly, that the alleged distortions in question are actually commonplace in market economy countries. Secondly, they submit that the prices of land situated in industrial zones are always set by the authorities in all countries, and that those authorities everywhere impose restrictions before authorising industrial projects.

132In support of their argument, the applicants simply refer to the evidence presented with their MET comments of 28 October 2010 and to the documents annexed to their reply.

133It should be observed, as the Council rightly has, that the applicants do not contest the Commission’s findings that the applicants received land-use rights on conditions that do not correspond to market value, and that the State intervenes in price-setting.

134They also expressly agree that the purpose of an MET investigation is not to determine whether distortions might also exist in the European Union, as the Commission observed in recital 46 of the provisional regulation.

– The loans

136It is apparent from the MET disclosure document that the Commission considered, after having examined the creditworthiness of the applicants and the APP Group, that it was not clear on what basis the Chinese state-owned banks evaluated the creditworthiness of the APP Group since the companies of the group had serious problems on repayment of their loans and were not in a position to honour part of their obligations towards those banks, but those banks took no action. The Commission also stated that the banks granted the loans despite serious cash-flow and financing problems and difficulties in raising capital. In general, the Commission stated that the critical financial situation of the APP group was not considered problematic by the Chinese state-owned banks that provided funding to the group.

137The Commission then concluded:

‘It is clear from all the above that in this case significant distortions exist in loan attribution from the Chinese banking/financial sector. Moreover, the loans provided on a non-commercial basis have far-reaching effects. Indeed, it is doubtful whether the company would still exist without these loans. Most of the loans were given by banks with a significant shareholding by the State. This type of distortion is symptomatic of non-market economy behaviour and clearly indicates that loans are not obtained by the company under market economy conditions but by taking into consideration general State industrial policies.’

138It is apparent from recital 39 of the provisional regulation that ‘[m]ost of the loans were given by banks with significant shareholding by the State while clear indications exist that general state industrial policies were taken into consideration by financial institutions when establishing the group’s creditworthiness which resulted in providing loans to companies that were in a bad financial situation’.

139In addition, it is apparent from recital 47 of the provisional regulation that the APP Group firstly ‘submitted that the Commission’s findings are speculative’. Secondly, ‘[it] submitted that the distortions spotted by the Commission may at most be subsidies’ and ‘[i]t was thus argued that since there is the parallel anti-subsidy investigation these alleged subsidies cannot be a [ground] for rejecting MET’.

140In the first place, it should be noted that the applicants do not deny the existence of the distortions found by the Commission and they do not provide any evidence in support of their claim that the Commission’s findings are purely speculative.

141In the second place, as regards the argument that those distortions are ‘plain subsidies’ which must be offset only by countervailing duties, it is apparent from recital 47 of the provisional regulation that the Commission noted that ‘the MET assessment established that distortions exist in loan attribution by the Chinese banking/financial sector’. The Commission therefore held that ‘[t]his [was] a distortion carried over from the non-market economy system and [had] no link with whether or not the impact of such acts could be considered as countervailable subsidies’.

142In the present case, the applicants refer, in general, to their letter of 8 June 2010 in which they argued that subsidy cannot be a ground for rejecting MET without providing further explanations.

143It is apparent from the observations of the APP Group found in that letter and summarised in recital 48 of the provisional regulation that, according to the APP Group, ‘the Chinese exporting producers group must be granted MET so as to avoid double counting with the parallel anti-subsidy investigation’. The APP Group argued that ‘state subsidisation forms part of the MET assessment, has an impact to the MET findings and thus will be dealt in the parallel anti-subsidy investigation’. The APP Group also made reference to the principle of proportionality and to the right of sound administration.

144The Commission rejected those arguments in recital 49 of the provisional regulation, first, because ‘[t]he fact that there is currently an anti-subsidy investigation does not deprive the investigating authority from its obligation to ensure that the conditions for granting MET are fulfilled’. Secondly, ‘the issue of “double counting” of anti-dumping and countervailing duties is regulated by the provisions of the relevant EU legislation, notably Article 14(1) of the basic [r]egulation and 24(1), second subparagraph of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the [Union], and is not dependent on whether or not the exporter in question is granted MET’, whereas, ‘[i]n any event as the proposed provisional anti-dumping duty for all Chinese cooperating parties is based on the injury elimination level and not on the dumping margin, any claim on double counting is invalid’.

145In the present case, it is apparent from the file that the applicants did not contest those considerations.

146The applicants point out that they had also explained, in the letter of 8 June 2010, that, under WTO law, more precisely Article 32.1 of the ASCM, there are only two remedies available for tackling subsidies, namely (i) recourse to WTO dispute settlement and (ii) countervailing duties, which can be imposed only after having conducted an anti-subsidy investigation. Thus, the EU institutions cannot unilaterally penalise companies receiving subsidies by rejecting MET in an anti-dumping investigation and without an assessment of whether they are illegal or countervailable.

147It is settled case-law that, in view of their nature and structure, the WTO agreements are not in principle among the rules in the light of which the EU judicature is to review the legality of measures adopted by the EU institutions, pursuant to the first paragraph of Article 230 EC (see, to that effect, Case C-149/96 Portugal v Council [1999] ECR I-8395 , paragraph 47, and Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79 , paragraph 53).

148However, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the EU judicature to review the legality of the EU measure in question in the light of the WTO rules (see, to that effect, Portugal v Council , paragraph 147 above, paragraph 49; Petrotub and Republica v Council , paragraph 147 above, paragraph 54; and Case C-351/04 Ikea Wholesale [2007] ECR I-7723 , paragraph 30).

149It should therefore be examined whether that is the case here.

150However, the answer must be in the negative.

151First, the third indent of the first subparagraph of Article 2(7)(c) of the basic regulation does not implement Article 32.1 of the ASCM.

152Secondly, the MET decision does not refer expressly to precise provisions of the WTO agreements, including the ASCM.

153Thirdly, the MET decisions are taken after having determined whether the criteria for its grant as laid down in the first subparagraph of Article 2(7)(c) of the basic regulation are satisfied. They are not made following a determination of dumping or subsidisation. They are not inextricably linked to the constituent elements of dumping or of a subsidy. Consequently, a MET decision is not a specific action for the purposes of Article 32.1 of the ASCM.

154It follows from all of the foregoing considerations that the applicants are not justified in claiming that the MET decision was taken in breach of Article 32.1 of the ASCM.

155It follows that the EU institutions did not make any error of assessment in the application of the first subparagraph of Article 2(7)(c) of the basic regulation by concluding that the applicants do not satisfy the third MET criterion.

156Since the conditions laid down by that article are cumulative, it is not necessary to examine the first and second MET criteria since, in the present case, the third criterion is not satisfied.

157Therefore, it is necessary to reject the third part of the third plea and, with it, the plea in its entirety.

The fourth plea, alleging unfair and partial handling of the investigation and excessive burden of proof

158The present plea contains two parts, the first alleging breach of the principle of sound administration and the second alleging breach of Article 18(1), (3) and (6) of the basic regulation.

The first part: alleged breach of the principle of sound administration

159In this part of the plea, the applicants submit that the Commission infringed the principle of sound administration by imposing on them an excessive burden of proof in the assessment of the MET claims and by changing its line of reasoning as regards the obligation of a company to match its accounts with its transactions when faced with the applicants’ rebuttals. Moreover, the MET claims were not assessed in an impartial and fair manner.

160As regards the argument that the MET claims were not assessed in an impartial and fair manner, it must be stated that the applicants have not in any way explained their complaint, with the result that that complaint must be declared inadmissible pursuant to Article 44(1)(c) of the Rules of Procedure. In addition, the fact that the applicants consider the explanations provided by the EU institutions to be unsatisfactory by no means shows that the latter acted in breach of their duty to exercise due care.

161In the present case, the Commission required the applicants, both in the MET disclosure document of 2 September 2012 and during the hearing of 17 September 2010, to demonstrate that they operated under market economy conditions, and it was not for the Commission to prove that the applicants did not satisfy the MET criteria.

162It is settled case-law of the Court of Justice that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad power of appraisal by reason of the complexity of the economic, political and legal situations which they have to examine. The review by the Court of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers ( Ikea Wholesale , paragraph 148 above, paragraphs 40 and 41, and Joined Cases C‑191/09 P and C‑200/09 P Council and Commission v Interpipe Niko Tube and Interpipe NTRP [2012] ECR, paragraph 63).

167It is apparent from the case file that the applicants merely dispute the fact that the onus was on them to adduce evidence demonstrating that their accounts reflected their transactions, and to do so within the context of the second condition for granting MET. In this respect, the applicants had to correlate payments and debits with bookings in their accounts in respect of (i) export transactions, (ii) domestic sales with related parties, and (iii) purchases of raw materials from unrelated suppliers.

168Such a burden of proof cannot be considered to be unreasonable.

169Moreover, it is not apparent from the file that the Commission had changed its reasoning as regards the obligation to match the applicants’ accounts with their transactions, as the applicants allege.

170It follows that the first part of the present plea must be rejected.

The second part: alleged breach of Article 18(1), (3) and (6) of the basic regulation.

171The applicants take the view that it follows from the facts as set out under the first part of the plea that the Commission did not work with them towards the common objective of establishing whether the information which they provided in their MET claims was accurate, as provided for in Article 18(1), (3) and (6) of the basic regulation, interpreted in the light of the findings of the WTO Appellate Body of 24 July 2001 in ‘United States — Anti-dumping measures on certain hot-rolled steel products from Japan’ (WT/DS184/AB/R, paragraph 99). According to the applicants, it is clear from those findings that the Commission infringes Article 18 of the basic regulation anytime it is not working towards a common goal with the investigated parties.

172Before examining the second part of the plea, it is necessary to identify the facts as set out under the first part to which the applicants refer. The applicants maintain, firstly, in paragraph 201 of the application, that, rather than engaging in a cooperation process with them, the Commission ‘gathered adverse facts during the verification and communicated them to the applicants only in the [MET] disclosure documents’. Secondly, the applicants submit, in paragraph 204 of the application, that ‘the sole concern and focus of the Commission [during the on-site verification] was to link lump sums received on open accounts with specific invoices, on the basis of documents in the accounting material’.

173It should be noted, however, that the applicants do not adduce any evidence in support of their assertions. They do no more than proceed by mere assertions.

174Since the complaint alleging infringement of Article 18(1), (3) and (6) of the basic regulation is not accompanied by any summary of the factual and legal arguments on which it is based, it must be declared inadmissible pursuant to Article 44(1)(c) of the Rules of Procedure.

175In any event, the applicants’ assertions are contradicted by the fact that, in the present case, the Commission cooperated throughout the investigation. Firstly, at the express request of the applicants, the Commission extended on multiple occasions the time-limits which were granted to them, a point which is not disputed by the applicants. Secondly, the Commission granted a hearing a few hours after having received a request to that effect made by the applicants, a point which is also not disputed by the applicants. Thirdly, the Commission took account of the applicants’ comments on the MET disclosure document.

176It follows that the second part of the present plea must be rejected.

177Accordingly, the fourth plea must be dismissed in its entirety.

3. The pleas relating to the assessment of injury

The fifth plea, alleging infringement of Article 3(2) of the basic regulation

178The fifth plea consists of two parts.

179The first part alleges infringement of Article 3(2) of the basic regulation in that the Commission excluded from the injury assessment one of the five Union producers cooperating in the investigation without any justification.

180The second part alleges infringement of Article 3(2) of the basic regulation in that the Commission relied on the data of four representative producers when assessing so-called ‘microeconomic’ indicators, and not with respect to the Union industry as a whole.

181As a preliminary point, it should be remembered that, according to Article 3(2) of the basic regulation, ‘[a] determination of injury shall be based on positive evidence and shall involve an objective examination of both the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products, and the consequent impact of those imports on the Community industry’.

182It must be recalled that, in accordance with settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (see, to that effect, Case 191/82 Fediol v Commission [1983] ECR 2913 , paragraph 26; Ikea Wholesale , paragraph 148 above, paragraph 40; Case C-535/06 P Moser Baer India v Council [2009] ECR I-7051 , paragraph 85; and Case T‑156/11 Since Hardware (Guangzhou) v Council [2012] ECR, paragraph 134).

183It is well-established case-law that determination of injury involves the assessment of complex economic matters. In that respect, the institutions enjoy a broad discretion ( Nakajima v Council , paragraph 96 above, paragraph 86; Case T-164/94 Ferchimex v Council [1995] ECR II-2681 , paragraph 131; Case T-107/04 Aluminium Silicon Mill Products v Council [2007] ECR II-669 , paragraph 43; and Since Hardware (Guangzhou) v Council , paragraph 182 above, paragraph 135).

184The European Union judicature must therefore restrict its review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate and whether there has been a manifest error of assessment or a misuse of powers ( Ferchimex v Council , paragraph 183 above, paragraph 67; Case T-210/95 EFMA v Council [1999] ECR II-3291 , paragraph 57; Aluminium Silicon Mill Products v Council , paragraph 183 above, paragraph 43; and Since Hardware (Guangzhou) v Council , paragraph 182 above, paragraph 136).

185In addition, it is for the applicants to adduce evidence enabling the Court to find that the Council made a manifest error of assessment when determining injury (see, to that effect, Shanghai Teraoka Electronic v Council , paragraph 122 above, paragraph 119; Case T-300/03 Moser Baer India v Council [2006] ECR II-3911 , paragraph 140 and the case-law cited; and Since Hardware (Guangzhou) v Council , paragraph 182 above, paragraph 137).

The first part, relating to the alleged lack of justification for excluding a Finnish producer from the injury assessment

186First, the applicants submit that, although sampling was not applied, the Commission did restrict the analysis of a number of injury indicators labelled microeconomic, in that only the four complainants were verified and considered representative of the Union industry. In this respect, the Commission did not justify the exclusion of a Finnish producer.

187The applicants argue that, by not considering in its injury assessment one of the Union producers with positive trends and by considering as representative only the four complaining producers, the Commission did not conduct an ‘objective examination’ of the facts before it in the sense described by the WTO Appellate Body.

188The Council submits that the Commission did not disregard the cooperation of the Finnish producer in question because, as regards the analysis of the microeconomic injury indicators, that producer never provided the relevant data, and, as regards the analysis of the macroeconomic injury indicators, the data provided by Cepifine included that producer’s data.

189The Council contends that the production of the Finnish producer in question represented at maximum a mere 1.4% of the Union industry’s production and that, even though the Finnish producer’s figures showed some positive trends, they could not reverse the injury analysis with respect to all Union producers.

190The Council states that sampling may be applied only if the number of cooperating companies is so large that it is not practicable to investigate all of them individually. In any case, the cooperating companies were representative of the Union industry.

191In the light of the above, it must be determined whether, as the applicants submit, the Commission did not actually examine the injury assessment on the basis of objective evidence, in that it excluded a Finnish producer of the Union industry with positive data.

192In that regard, the applicants produce a letter, sent on 18 March 2010, in which the Commission asked the Finnish producer in question to submit its observations and to which the latter responded by letter of 30 April 2010 and from which it is apparent that it did not suffer injury. On that basis, the applicants submitted, during the investigation, that the Commission could not disregard the cooperation of that producer without any reasonable cause.

193It should be noted that in anti-dumping cases the Council and the Commission depend on the willingness of the parties to cooperate in providing them with the necessary information within the prescribed periods ( EFMA v Council , paragraph 184 above, paragraph 71).

194As the applicants observe, it is mentioned in recital 10 of the provisional regulation that ‘[r]eplies to the questionnaires and other submissions were received from two groups of Chinese exporting producers, [Cepifine], the four complainant Union producers and one additional Union producer, 16 unrelated importers and traders, 17 users and 3 printing and paper associations and from one producer in the USA which was envisaged as analogue country.’

195However, it is apparent from recital 29 of the provisional regulation that only four Union producers came forward within the deadlines set in the Notice of initiation.

196It is apparent from recital 90 of the contested regulation that, ‘[i]n the present investigation, the Union industry was defined at the level of Union producers accounting for the total Union production …, regardless of whether producers supported the complaint or have been cooperating in the investigation’.

197It is apparent from recital 77 of the provisional regulation that, ‘[d]uring the [investigation period], the like product was manufactured by 14 known and some other very small producers in the Union’ and that ‘[t]he data provided by Cepifine is estimated to be covering 98% of the production of Union producers’.

198In the light of the foregoing, the situation of the Finnish producer in question was taken into account as regards the macroeconomic indicators, since the data submitted by Cepifine represented 98% of the production of Union exporting producers.

199However, as regards the microeconomic indicators, which can be assessed only on submission of data by individual companies, it should be noted that the Finnish producer in question did not respond within the deadlines set by the Notice of initiation.

200Thus, the fact that the Finnish producer did not respond cannot constitute an omission in the course of a specific examination based on objective evidence of the injury assessment.

201Accordingly, the present complaint must be rejected.

202Secondly, the applicants claim that the institutions did not satisfy the requirement to give reasons under Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union.

203The Council submits that the applicants adduce no evidence so far as concerns the failure to state the reasons for the contested regulation.

204In the light of the examination carried out in the context of the first complaint in the first part of the plea, it must be concluded that neither Article 296 TFEU nor Article 41 of the Charter of Fundamental Rights was infringed.

205Accordingly, the present complaint must be rejected.

206Consequently, the first part of the present plea must be rejected.

The second part, relating to the detailed arrangements for the alleged assessment of the microeconomic injury indicators based on four representative Union producers

207Firstly, the applicants submit that the Union industry was defined by the Council as being the 14 Cepifine members but, within the context of its investigation, the Commission’s analysis was restricted to the assessment of the situation of the four representative producers for certain injury indicators.

208The applicants submit that certain injury indicators, namely the microeconomic indicators, concern a limited number of producers, that is to say, the four complainants and the Finnish producer in question, which are the only companies to have submitted a reply to the questionnaire.

209According to the applicants, that methodology created a distorted injury picture in that it reflects neither the situation of a sub-group of producers, nor the situation of the 14 members of Cepifine. The injury assessment cannot be a mix of the Union industry for certain indicators, and only for a representative portion for other indicators.

210The applicants take the view that there is no logic in the criteria used by the Commission for categorising injury indicators as macro- and micro-economic. In addition, they assert that the contested regulation provides no reason or explanation in this respect.

211The Council submits that the Union industry was defined as the producers accounting for the total Union production, including the 14 members of Cepifine.

212The Council states that Article 3(2) of the basic regulation does not prohibit the analysis of different injury indicators with respect to different subsets of Union producers.

213The Council considers that the analysis satisfies the criteria set out in Article 3(2) of the basic regulation, both with respect to the microeconomic injury indicators and with respect to the macroeconomic injury indicators.

214The Council takes the view that the distinction between macroeconomic and microeconomic injury criteria is logical and based on practical considerations, in particular the availability of data.

215It should be noted that, in the present plea, the applicants do not dispute the relevance of the economic factors and indices used by the institutions in assessing the injury suffered by the Union industry or the Commission’s analysis set out at recitals 90 and 91 of the contested regulation.

216The applicants dispute the classification of the indicators and the methodology used by the Commission.

217Article 3(5) of the basic regulation provides:

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

218As regards the macroeconomic factors, according to recital 90 of the contested regulation ‘it is the Commission’s practice to evaluate macroeconomic factors for the indication of the injury suffered at the level of the Union industry as a whole …, the Union industry [having been] defined at the level of Union producers accounting for the total Union production …, regardless of whether producers … have been cooperating in the investigation’.

219In that regard, according to recital 89 of the provisional regulation ‘[t]he macroeconomic elements (production, capacity, capacity utilisation, sales volume, market share, growth and magnitude of dumping margins) were assessed at the level of the whole Union production, on the basis of the information provided by Cepifine’.

220As regards the microeconomic factors, according to recital 91 of the contested regulation ‘microeconomic factors are analysed at the level of the representative Union producers, regardless of whether these support the complaint or not’.

221In that regard, recital 90 of the provisional regulation states that ‘[t]he analysis of microeconomic elements was carried out at the level of the Union producers (average unit prices, employment, wages, productivity, stocks, profitability, cash flow, investments, return on investments, ability to raise capital) on the basis of their information, duly verified’.

222It should be remembered that in anti-dumping cases the Council and the Commission depend on the willingness of the parties to cooperate in providing them with the necessary information within the prescribed periods (see paragraph 193 above).

223It follows from the foregoing that, in accordance with Article 3(5) of the basic regulation, the Commission carried out an analysis of the different criteria with regard to the Union industry, so far as concerns the macroeconomic indicators, and with regard to the individual companies, so far as concerns the microeconomic indicators.

224The macroeconomic indicators were assessed on the basis of the information submitted by Cepifine, which covers 98% of the production of Union producers.

225Moreover, the microeconomic indicators, based on the availability of information submitted by the individual companies, were assessed on the basis of the transmission of data by the four representative complaining producers, to the exclusion of the Finnish producer in question, which did not come forward by the deadline set.

226When exercising their discretion, there is no obligation on the EU institutions under the basic regulation to classify the macroeconomic and microeconomic criteria or any prohibition on constituting sub-groups of producers, provided that the Commission carries out an objective examination based on evidence which is itself objective, such as was carried out in the present case.

227Thus, it must be held that the applicants do not produce, in support of their complaint, any evidence capable of proving that the classification of the injury indicators and the methodology of the Commission did not allow a specific examination based on objective evidence to be carried out.

228Therefore, the complaint must be rejected.

229Secondly, the applicants argue that the Commission should have applied sampling.

230Recital 27 of the basic regulation states that ‘[i]t is essential to provide for sampling in cases where the number of parties or transactions is large in order to permit completion of investigations within the appointed time-limits’.

231However, as the Council notes, the Commission was not required, in the present case, to resort to sampling (see paragraph 190 above).

232By virtue of the margin of assessment enjoyed by the EU institutions, as recognised by the case-law, the Commission did not make a manifest error of assessment since only four representative producers contributed to the investigation.

233Therefore, the complaint must be rejected.

234Thirdly, it must be stated that the applicants merely plead that the contested regulation is vitiated by a failure to state reasons and do not provide any evidence capable of establishing an alleged infringement of Article 296 TFEU.

235Thus, the complaint must be rejected.

236Therefore, the second part must be rejected.

237Consequently, the fifth plea must be rejected in its entirety.

The sixth plea, alleging infringement of Article 3(1) and Article 9(4) of the basic regulation

238Firstly, the applicants have stated to the Court that ‘[u]ntil very late in the proceedings, [they] were unaware of the methodology used by the Commission to arrive at an 8% target profit margin’.

239It is apparent from recital 156 of the contested regulation that ‘[o]ne group of Chinese exporting producers requested further details for the method used to calculate the target profit of 8% used for the calculation of the non-injurious price [by referring] to the complaint in which the target profit suggested was lower’.

240Assuming that this is an argument, the applicants do not demonstrate that the alleged lateness prevented them from effectively making their views known, and adversely affected their rights of defence.

241Therefore, and in so far as the applicants essentially seek to rely on an infringement of the rights of defence, that complaint must be rejected.

242Secondly, the applicants submit that the Commission infringed Article 3(1) and Article 9(4) of the basic regulation in adopting a target profit of 8%.

243It should be remembered that Article 3(1) of the basic regulation states that ‘the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry’.

244Article 9(4) of the basic regulation states that ‘[t]he amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry’.

245It follows from a reading of those articles that the profit margin to be used by the Council when calculating the target price that will remove the injury in question must be limited to the profit margin which the Union industry could reasonably count on under normal conditions of competition, in the absence of the dumped imports. It would not be consistent with Article 3(1) and Article 9(4) of the basic regulation to allow the Union industry a profit margin that it could not have expected if there were no dumping ( EFMA v Council , paragraph 184 above, paragraph 60).

246The applicants state that the target profit was calculated on the basis of what was seen as an adequate return on (invested) capital for the paper industry rather than on the actual achievable margin in the absence of dumped imports, which has to be limited to the profit margin that the Union industry could reasonably count on under normal conditions of competition.

247According to the applicants, the question is not whether an 8% target profit margin would be sufficient to cover the investments and risks involved, but whether such a profit margin would be achievable in the absence of dumped imports. That argument must be understood as relating to a manifest error of assessment in the calculation of the profit margin.

248The Council submits that there is a link between the adequate return on capital of a particular industry and the profit that can be achieved under normal, undistorted market conditions, in that capital-intensive industries which require high up-front investment will invest only if they can expect an appropriate rate of return.

249As is apparent from settled case-law, where assessment of a complex economic situation is involved, the Council has a broad margin of assessment when determining the appropriate profit margin. The EU judicature must therefore restrict its review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate and whether there has been a manifest error of appraisal or a misuse of powers ( EFMA v Council , paragraph 184 above, paragraph 57; and Ferchimex v Council , paragraph 183 above, paragraph 67).

250In the light of the foregoing, it is necessary to examine whether the Council made a manifest error of assessment when calculating the profit margin.

251It should be remembered that it is for the applicants to adduce evidence enabling the Court to find that the Council made a manifest error of assessment as defined in the case-law (see paragraph 185 above).

252According to recital 158 of the contested regulation:

‘It should be clarified that the target profit as suggested in the complaint was examined based on the questionnaire replies and verification visits to the representative Union producers. More specifically, the cost of investment in machinery was considered. The target profit set on this latter basis was found to reflect the high up-front investment needs and risk involved in this capital-intensive industry in the absence of dumped and/or subsidised imports. Therefore a target profit of 8% is considered as the level that the industry could obtain in the absence of dumped imports. As stated in recital 86, to ensure that the dumping and undercutting and underselling calculations follow a coherent approach and for the reasons set out in recitals 68 to 71, the calculation of the injury elimination level has been revised to exclude the export sales of a company within the group of the cooperating Chinese exporting producers.’

253It should be noted that the applicants only contest the fact that, when calculating the profit margin, the Commission included considerations relating to the coverage of the investments and the risks involved.

254It should be recalled that when they use the margin of discretion conferred on them by the basic regulation, the institutions are not obliged to explain in detail and in advance the criteria which they intend to apply in every situation, even where they create new policy options (Case T-118/96 Thai Bicycle v Council [1998] ECR II-32991 , paragraph 68; see, to that effect and by analogy, Case 250/85 Brother Industries v Council [1988] ECR 5683 , paragraphs 28 and 29; and Nakajima v Council , paragraph 96 above, paragraph 118).

255In the present case, it should be noted that the Commission took account of several criteria, such as the questionnaire replies, the cost of investment, the risks involved, the fact that the industry is capital-intensive and the exclusion of the export sales of a company belonging to a cooperating exporting producer.

256As the Council notes, the applicants ‘do not claim that any of these factors was factually incorrect or unreliable’.

257It should be noted that the applicants do not dispute the Council’s assertion that ‘there is a link between the adequate return on capital of a particular industry and the profit that can be achieved under normal, undistorted market conditions’.

258However, they claim that ‘the purpose of the imposition of anti-dumping duties is not to restore a price at an undistorted, normal level, but to a level that could be achieved without dumped imports’.

259In support of their argument, the applicants refer to Annex A.28 of the application, which consists of a note from the Commission, dated 29 March 2001, with the subject-matter ‘Subject: Profitability in the absence of injurious dumping’, in which the Commission’s methodology for calculating the 8% profit margin is explained.

260There is no evidence to support the conclusion that the Commission pursued the objective of imposing anti-dumping duties in order to restore a price at an undistorted, normal level.

261The applicants point out that, in paragraph 356 of the anti-subsidy complaint, Cepifine asserted that the European manufacturers within the association could have expected to obtain a 5% profit in the absence of dumped imports.

262It is not apparent from that complaint, however, that the Commission imposed countervailing duties in order to restore a price at an undistorted, normal level.

263Within the framework of their discretion, the EU institutions considered that the amount of the profit margin (8%) could be achieved in the absence of dumped imports.

264Thus, it must be held that the Commission clearly established that the target profit of 8% was regarded as the level that the industry could obtain in the absence of dumped imports (see paragraph 252 above).

265In any event, it should be noted that the applicants merely refer to the evidence in the administrative case file and do not provide any evidence to establish any manifest error of assessment on the part of the EU institutions in that they imposed anti-dumping duties with the sole objective of restoring a price at an undistorted, normal level.

266Therefore, the complaint must be rejected.

267Thirdly, in support of their argument, the applicants state that in 2005, that is before the investigation period, the average profit margin of the complainants was 2%, whereas the margin used to calculate the target profit was 2.88% in 2009, that is during the investigation period.

268The Council states that the EU institutions could not rely on the profit achieved by the Union industry during the period considered because the industry in question made exceptional losses attributable to structural problems. The case-file shows that the applicants did not contest those considerations.

269Recital 116 of the contested regulation states:

‘The representative Union producers incurred losses in the years 2006 to 2008 and the financial situation only turned positive in 2009 when the world price of pulp, the main raw material exceptionally decreased significantly as a result of the economic downturn. The drop in the price of pulp (– 19%) was considered an abnormally large drop that directly contributed to the improved financial situation in the [investigation period]. It is to be noted that since the [investigation period], pulp prices have returned to their pre-[investigation period] levels.’

270Recital 128 of the provisional regulation states:

‘However, the investigation showed that losses were incurred by the Union industry in the period considered, especially in 2008, despite the restructuring of the producers because … the Union industry was still not able to raise its prices to levels above costs. This situation was mainly caused by the price pressure exerted by the dumped imports undercutting Union industry prices.’

271According to recital 117 of the provisional regulation, ‘it was provisionally concluded that the surge of the low-priced dumped imports from [China] had a considerable negative impact on the economic situation of the Union industry’.

272In the light of the foregoing, it must be held that the amount of the average profit margin of the complainants in 2005, as invoked by the applicants, is not sufficient, by itself, to establish that the Council committed a manifest error of assessment when determining the profit margin in the absence of the dumped imports before the investigation period (see, to that effect, EFMA v Council , paragraph 184 above, paragraph 89).

273Therefore, the complaint must be rejected.

274It follows from all the foregoing that the sixth plea must be rejected.

The seventh plea, alleging infringement of Article 3, Article 4(1) and Article 5(4) of the basic regulation

275As a preliminary point, it should be noted that the applicants do not dispute that coated fine paper used by sheet-fed printing machines is not interchangeable with rolls suitable for use in web-fed presses.

276It should also be noted that the applicants do not dispute that rolls used by web-fed presses are not interchangeable with rolls used in sheet-fed printing.

277Nor is it disputed by the applicants that rolls suitable for use in web-fed presses can be used in sheet-fed printing machines equipped with CutStar technology.

278The applicants dispute the definition of the product concerned in that the institutions excluded rolls suitable for use in web-fed presses and concluded that they were not interchangeable with cutter-rolls.

279The Council submits that rolls suitable for use in web-fed presses must be excluded from the definition of the product concerned because the different types of paper present different physical characteristics.

280The Council states that the different types of paper are not interchangeable and that the EU institutions defined the product concerned as sheet-fed paper, including both paper sheets and paper rolls which are suitable for CutStar machines.

281Therefore, in order to determine the interchangeability of the products, it is necessary to examine whether rolls suitable for use in web-fed presses can be used in sheet-fed printing machines equipped with CutStar technology and whether rolls used in sheet-fed printing can be used in web-fed presses.

282It is apparent from recital 16 of the contested regulation that the applicants claimed that there is no ‘substantial difference concerning basic characteristics between [coated fine paper] in sheets and rolls suitable for use in sheet-fed printing machines … and rolls suitable for use in web-fed presses’.

283In that regard, the applicants claim to have provided, as an annex to the application, ‘conclusive evidence showing that presses equipped with CutStar can use both types of rolls’.

284Recital 15 of the provisional regulation states:

‘[Coated fine paper] is high quality paper and paperboard generally used for printing of reading material such as magazines, catalogues, annual reports, yearbooks. The product concerned includes both sheets and rolls suitable for use in sheet-fed (cut star) printing machines. Rolls suitable for use in sheet-fed presses (cutter rolls) are designed to be cut into pieces before printing, and are thus considered to be substitutable and directly competitive with sheets.’

285Recital 16 of the provisional regulation mentions that rolls suitable for use in web-fed presses, which are excluded from the product concerned, are ‘normally directly fed into the printing machines and are not cut beforehand’.

286However, the applicants merely claim that the EU institutions made a manifest error of assessment in the definition of the product concerned and do not adduce any evidence in support of their line of argument.

287The applicants do not adduce any evidence to show that coated fine paper in rolls could be used in web-fed presses, either in the light of the physical or technical characteristics, such as resistance to picking, or the interchangeability from an economic point of view.

288According to settled case-law, the purpose of the definition of the product concerned in an anti-dumping investigation is to aid in drawing up the list of the products which will, if necessary, be the subject of anti-dumping duties. For that purpose, the EU institutions may take account of a number of factors, including the physical, technical and chemical characteristics of the products, their use, interchangeability, consumer perception, distribution channels, manufacturing process, costs of production and quality (Case T-314/06 Whirlpool Europe v Council [2010] ECR II-5005 , paragraph 138; Case T-369/08 EWRIA and Others v Commission [2010] ECR II-6283 , paragraph 82, and judgment of 10 October 2012 in Case T‑172/09 Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council , not published in the ECR, paragraph 59).

289Recital 18 of the provisional regulation states:

‘[T]he investigation confirmed that there are indeed distinct technical and physical characteristics such as humidity and stiffness between paper used in web-fed and the one used in sheet-fed printing. The investigation further confirmed that the technical characteristics listed in recital 16 … are unique to rolls suitable for use in web-fed presses. Due to these differences, paper used in web-fed or the one used in sheet-fed printing cannot be used in the same type of printing machine and they are therefore not interchangeable. It is noted that all parties agreed that the two types of paper are distinct as regards their surface strength and tensile strength.’

290Recital 29 of the contested regulation states that ‘[r]ecitals 16 and 18 of the provisional [r]egulation set out additional criteria which have not been contested’.

291It should also be noted, as is apparent from recital 42 of the contested regulation, that no comments were received with regard to the determination of the like product.

292Therefore, the provisions of the basic regulation relating to the definition of the product concerned were not infringed and the present complaint must therefore be rejected.

293As regards the definition of the Union industry and standing to bring anti-dumping proceedings, the applicants state that the erroneous definition of the product concerned was used for the purposes of defining the Union industry manufacturing the like product and to assess the injury suffered by that industry.

294It is apparent from recital 83 of the contested regulation that, ‘[i]n the absence of further comments on Union production, recitals 77 to 79 of the provisional [r]egulation [were] hereby confirmed’.

295Recital 79 of the provisional regulation states:

‘As mentioned in recital 17 …, one interested party claimed that [coated fine paper] suitable for web-fed printing should have been included in the scope of the present investigation. On this basis, the party argued that the complainant Union industry would not have enough standing in the present proceeding. Based on the conclusions outlined … in recitals 20 and 22, however, i.e. that [coated fine paper] suitable for web-fed printing and [coated fine paper] for sheet-fed printing are two different products, this claim had to be rejected.’

296As the Council notes, the plea should be examined only if the definition of the product concerned was erroneous.

297However, it follows from the foregoing that the EU institutions did not make a manifest error of assessment in the definition of the product concerned.

298Thus, the present complaint loses its factual premiss.

299In addition, the applicants merely claim that the EU institutions infringed Article 4(1), Article 3 and Article 5(4) of the basic regulation and do not adduce any evidence in support of their line of argument.

300Accordingly, the present complaint must be rejected.

301As regards the infringement of Article 296 TFEU, the applicants submit that the EU institutions failed to fulfil their obligation to state reasons for the contested regulation since their silence as to the interchangeability of the two products in question when used on machines equipped with CutStar equipment prevented the applicants from effectively defending before the Court their claim that CutStar makes web-fed and cutter rolls interchangeable and from challenging an important decision which had a great impact on the standing and injury assessment and the consequent outcome of the investigation.

302It should be remembered that the statement of reasons required by Article 296 must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review (see Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947 , paragraph 147 and the case-law cited).

303In that connection, it should be borne in mind that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see Elf Aquitaine v Commission , paragraph 302 above, paragraph 146 and the case-law cited).

304Thus, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the competent courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see Elf Aquitaine v Commission , paragraph 302 above, paragraph 148 and the case-law cited).

305It must be held that the complaint that the contested regulation is not reasoned or is insufficiently reasoned because of the EU institutions’ silence as to the interchangeability of the products in question is unfounded.

306The EU institutions examined the fact that coated fine paper in sheets or rolls suitable for sheet-fed printing and rolls suitable for web-fed printing constituted different groups and were not interchangeable (recital 17 of the contested regulation), both from the point of view of the physical and technical characteristics — recital 17 of the contested regulation confirming recital 18 of the provisional regulation which itself refers to recital 16 of the provisional regulation, in particular so far as concerns resistance to picking and stiffness as the relevant distinctive criteria (recitals 16 and 29 of the contested regulation) — and from an economic point of view — recital 17 of the contested regulation confirming recital 20 of the provisional regulation.

307Consequently, the EU institutions did not infringe Article 296 TFEU since the applicants could clearly identify the factors taken into account in the contested regulation in order to conclude that cutter rolls suitable for sheet-fed printing and rolls suitable for web-fed printing were not interchangeable.

308Therefore, the complaint must be rejected.

309Consequently, it follows from all of the foregoing that the seventh plea must be rejected.

The eighth plea, alleging infringement of Article 3(2) and (7) of the basic regulation

310First, the applicants contend that, under the non-attribution principle, the contested regulation is vitiated by a failure to state reasons since the EU institutions did not provide relevant explanations or sufficient reasoning as to how the non-injurious price did not go beyond what was necessary to offset the injury caused by the dumped imports.

312Thus, it must be held that the EU institutions stated clear reasons for the fact that the other factors could not be held responsible for the injury caused by the dumped imports and that, consequently, the non-injurious price had been determined in order not to go beyond what was necessary to offset the injury caused by those imports.

314It must be stated that the applicants simply observe that the level of the duties imposed is 20% and that the non-injurious price on the basis of which that rate was calculated was obtained by adding an 8% profit margin to the costs of production.

315As the Council points out, the applicants do not dispute the principle of the target profit approach adopted by the EU institutions and do not dispute that the target profit should be set at a level that the Union industry can achieve in the absence of the dumped imports.

316In that regard, it should be noted that the applicants do not dispute the reliability of those factors.

317Thus it must be observed that the applicants do not dispute the level of the duties imposed since they merely draw attention to the calculation of the injury margin as set out in recital 165 of the contested regulation.

319Therefore, the complaint must be rejected.

320Secondly, the applicants submit that the EU institutions summarily dismissed all the causes for injury other than dumped imports which had been presented to them during the investigation.

321In that regard, the applicants merely argue, by way of example, that the injury sustained cannot be wholly attributed to the imports from China because, while there was a 5% loss of market share during the investigation period, Chinese imports increased only by 3% and therefore another competitor gained the 2% of the market share lost by the Union industry. Thus, the applicants are not the only ones responsible for the loss of market share and consequent injury.

322In so far as it is an argument advanced by the applicants, it should be observed that, according to the case-law, the Council and the Commission are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from dumped imports and must disregard any injury deriving from other factors (Case C-358/89 Extramet Industrie v Council [1992] ECR I-3813 , paragraph 16; and Case T-190/08 CHEMK and KF v Council [2011] ECR II-7359 , paragraph 188).

326However, the applicants confine themselves to making mere assertions which are, moreover, examples.

327Consequently, it must be held that the applicants submit no evidence in support of their argument to show that the EU institutions made an error of assessment in determining the causal link.

328For the sake of completeness, as the Council observes, it should be noted that the applicants do not dispute the conclusions drawn from recitals 125 to 127 of the contested regulation, according to which the imports from other third countries did not contribute to the material injury suffered by the Union industry.

329Thirdly, with regard to the deterioration of the export performance of the Union industry, the applicants dispute the EU institutions’ statement that that deterioration is not the main reason for the injury suffered by the producers and thus does not break the causal link.

330As the Council observes, the Union industry’s export performance actually mitigated the injurious effects of the dumped imports.

331Recital 123 of the provisional regulation, which is confirmed by recital 141 of the contested regulation, states, in particular:

‘Since exports play an important role in keeping capacity utilisation high to cover the high fixed costs of investments into machinery, it was considered that although the export performance was deteriorating it had an overall positive effect. Accordingly, it is considered that even if the decrease in export activities may have contributed to the overall deterioration of the situation of the Union industry, these were on the other hand mitigating the losses suffered on the Union market and thus are not such as to break the causal link established between the dumped imports from [China] and the injury suffered by the Union industry.’

332In that regard, the applicants submit no evidence to show that the EU institutions made an error of assessment in determining the causal link.

333In the light of all of the foregoing considerations, the eighth plea must be rejected in its entirety.

334It follows that the action must be dismissed in its entirety.

Costs

335Under Article 87(2) 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 applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Council, Cepifine, Sappi Europe, Burgo Group and Lecta, in accordance with the form of order sought by those parties.

336The Commission shall bear its own costs, in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.Dismisses the action;

2.Orders Gold East Paper (Jiangsu) Co. Ltd and Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd to bear their own costs and to pay those of the Council of the European Union, Cepifine AISBL, Sappi Europe SA, Burgo Group SpA and Lecta SA;

3.Orders the European Commission to bear its own costs.

Czúcz

Labucka

Gratsias

Delivered in open court in Luxembourg on 11 September 2014.

[Signatures]

Table of contents

Legal context

1. WTO law

2. EU law

Background to the dispute

1. Investigation

2. The contested regulation

Procedure and forms of order sought

Law

1. The scope of the claim for annulment

2. The pleas relating to the applicants’ MET claims

The first plea, alleging infringement of the second subparagraph of Article 2(7)(c) of the basic regulation, in that the decision not to grant the applicants MET was taken on the basis of what the Commission knew would be the effect of such a refusal on their dumping margin

The second plea, alleging infringement of an essential procedural requirement laid down in the second subparagraph of Article 2(7)(c) of the basic regulation and infringement of the rights of the defence

The first part: effective consultation of the ADC

The second part: infringement of the rights of the defence

The third plea, alleging manifest errors of assessment in the application of the first subparagraph of Article 2(7)(c) of the basic regulation and a failure to state reasons

Preliminary observations

The alleged failure to state reasons

The third part, relating to the third MET criterion

– Land use rights

– The loans

The fourth plea, alleging unfair and partial handling of the investigation and excessive burden of proof

The first part: alleged breach of the principle of sound administration

The second part: alleged breach of Article 18(1), (3) and (6) of the basic regulation.

3. The pleas relating to the assessment of injury

The fifth plea, alleging infringement of Article 3(2) of the basic regulation

The first part, relating to the alleged lack of justification for excluding a Finnish producer from the injury assessment

The second part, relating to the detailed arrangements for the alleged assessment of the microeconomic injury indicators based on four representative Union producers

The sixth plea, alleging infringement of Article 3(1) and Article 9(4) of the basic regulation

The seventh plea, alleging infringement of Article 3, Article 4(1) and Article 5(4) of the basic regulation

The eighth plea, alleging infringement of Article 3(2) and (7) of the basic regulation

Costs

( *1 ) Language of the case: English.