JUDGMENT OF THE COURT (Second Chamber)

28 November 2013 ( * )

(Appeal – Dumping – Regulation (EC) No 172/2008 − Imports of ferro-silicon originating in China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia − Regulation (EC) No 384/96 − Article 2(9) – Export price – Article 3(5) and (6) – Determination of injury − Article 6(7) – Investigation − Article 8(4) – Offer of undertakings – Non-confidential version − Article 20(1) – Disclosure − Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part)

In Case C‑13/12 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 January 2012,

Chelyabinsk Electrometallurgical Integrated Plant OAO (CHEMK), established in Chelyabinsk (Russia),

Kuzneckie Ferrosplavy OAO (KF), established in Novokuznetsk (Russia),

represented by P. Vander Schueren, advocaat, and N. Mizulin, avocat,

appellants,

the other parties to the proceedings being:

Council of the European Union, represented by J.-P. Hix, acting as Agent, assisted by G. Berrisch, Rechtsanwalt, and N. Chesaites, Barrister,

defendant at first instance,

European Commission, represented by H. van Vliet and M. França, acting as Agents, with an address for service in Luxembourg,

intervener at first instance,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, J.L. da Cruz Vilaça, G. Arestis (Rapporteur), J.‑C. Bonichot and A. Arabadjiev, Judges,

Advocate General: P. Mengozzi,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 January 2013,

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

gives the following

Judgment

1 By their appeal, Chelyabinsk Electrometallurgical Integrated Plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF) (together, ‘CHEMK and KF’) seek to have set aside the judgment of the General Court of 25 October 2011 in Case T‑190/08 CHEMK and KF v Council [2011] ECR II‑7359 (‘the judgment under appeal’), in which the General Court dismissed their action for annulment of Council Regulation (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6) (‘the regulation at issue’), in so far as it concerns CHEMK and KF.

Legal context

European Union law

2 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) was replaced and codified by 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). However, having regard to the date of adoption of the regulation at issue, the dispute must be examined on the basis of Regulation No 384/96 (‘the basic regulation’).

3 Article 2(9) of the basic regulation provides as follows:

‘In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.

In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Community frontier level.

The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either in or outside the Community, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs; customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods; and a reasonable margin for selling, general and administrative costs and profit.’

4 Paragraphs (5) to (7) of Article 3 of the basic regulation, relating to the determination of injury, provide as follows:

‘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, or 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.’

5 According to Article 6(7) of the basic regulation:

‘The complainants, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with Article 5(10), as well as the representatives of the exporting country may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Community or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and is used in the investigation. Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response.’

6 Under Article 8(4) of the basic regulation:

‘Parties which offer an undertaking shall be required to provide a non-confidential version of such undertaking, so that it may be made available to interested parties to the investigation.’

7 According to paragraph (1) of Article 20 of the basic regulation, entitled ‘Disclosure’:

‘The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.’

The SAA

8 The Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part (OJ 2004 L 84, p. 13; ‘the SAA’), was drawn up in order to provide an appropriate framework for political dialogue and to allow the development of close political relations between the Parties. The purpose of the agreement was also to promote harmonious economic relations and develop gradually a free trade area between the Community and the former Yugoslav Republic of Macedonia.

9 Under Article 36 of the SAA, entitled ‘Dumping’:

‘1. If one of the Parties finds that dumping is taking place in trade with the other Party within the meaning of Article VI [of the General Agreement on Tariffs and Trade (GATT) 1994, which is part of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (“the GATT 1994”)], it may take appropriate measures against this practice in accordance with the Agreement on implementation of Article VI of the GATT 1994 and its own related internal legislation.

2. As regards paragraph 1 of this Article, the Stabilisation and Association Council shall be informed of the dumping case as soon as the authorities of the importing Party have initiated an investigation. When no end has been put to the dumping within the meaning of Article VI of the GATT [1994] or no other satisfactory solution has been reached within 30 days of the matter being referred to the Stabilisation and Association Council, the importing Party may adopt the appropriate measures. ‘

Background to the dispute and the regulation at issue

10 The background to the dispute is set out as follows at paragraphs 1, 2, 6 and 12 of the judgment under appeal:

‘1 The applicants, [CHEMK and KF], are two companies established in Russia and active in the production of ferro-silicon. At the material time, the sales of those two companies in the European Community were effected through related companies.

2 Following a complaint filed on 16 October 2006 by Euroalliages (the Liaison Committee of the Ferro-Alloy Industry), the Commission of the European Communities initiated an anti-dumping proceeding, concerning imports of ferro-silicon originating in the former Yugoslav Republic of Macedonia, China, Egypt, Kazakhstan and Russia, pursuant to [the basic regulation] …

...

6 On 29 August 2007, the Commission published Commission Regulation (EC) No 994/2007 of 28 August 2007 imposing a provisional anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2007 L 223, p. 1; “the provisional regulation”). The provisional regulation imposed inter alia a provisional anti-dumping duty, the rate of which was set at 22.8% for the applicants’ products.

...

12 On 25 February 2008, the Council of the European Union adopted the [regulation at issue]. Under Article 1 of the [regulation at issue], the rate of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, was set at 22.7% for the products manufactured by [CHEMK and KF].’

Procedure before the General Court and judgment under appeal

11 In support of their action at first instance, CHEMK and KF raised five pleas in law, alleging, respectively:

– errors in the use of a notional profit margin for the construction of the export price;

– errors in relation to the price undertaking offered by Silmak Ltd, a producer of ferro-silicon established in the former Yugoslav Republic of Macedonia (‘Silmak’);

– a manifest error of assessment and breach of Article 3(6) of the basic regulation concerning the determination of injury;

– a manifest error of assessment concerning the analysis of the causal link between the dumped imports and the injury; and

– infringement of the rights of defence of CHEMK and KF as regards the disclosure of data relating to the initiation of the anti-dumping proceeding.

12 As none of the appellants’ pleas in support of their action was upheld, the General Court dismissed that action in its entirety.

Forms of order sought

13 By their appeal, CHEMK and KF claim that the Court should:

– set aside the judgment under appeal and give its own ruling on the dispute; and

– order the Council to pay the costs of both sets of proceedings.

14 The Council claims that the Court should:

– primarily, dismiss the appeal;

– in the alternative, refer the case back to the General Court;

– in the further alternative, dismiss the action; and

– order CHEMK and KF to pay the costs.

15 The Commission contends that the appeal should be dismissed and that CHEMK and KF should be ordered to pay the costs.

The appeal

First ground of appeal: error of law in the calculation of the export price on the basis of a notional profit margin

Arguments of the parties

16 CHEMK and KF claim that the General Court erred in law in its examination of the second part of the first plea in law which they raised in support of their action, alleging breach of the obligation to state reasons.

17 CHEMK and KF claim that the General Court, in paragraphs 47, 48, 54 and 55 of the judgment under appeal, distorted the clear sense of the evidence put before it.

18 In any event, they argue, the General Court failed to state reasons for its judgment to the requisite legal standard in relation to the calculation of the export price on the basis of a notional profit margin.

19 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

20 It must be noted that, as follows from Article 170(1) of the Rules of Procedure of the Court of Justice, new pleas in law not contained in the original application may not be raised in an appeal.

21 In the present case, for the first time before the Court of Justice, CHEMK and KF contest the reasonableness of the calculation of the related importer’s profit margin on the basis of data relating to Interalloys rather than on that of data relating to Globelloys. All of the grounds relied on and relating to the calculation of the export price on the basis of the notional profit margin are based on the premiss that the institutions wrongly took into account the situation of Interalloys rather than that of Globelloys. Therefore, these are new pleas and are on that ground inadmissible in the context of the present appeal.

22 The first ground of appeal raised by CHEMK and KF must therefore be rejected as being inadmissible in its entirety.

Second ground of appeal: breach of Article 36(2) of the SAA

Arguments of the parties

23 CHEMK and KF claim that the General Court erred in law in finding at paragraphs 67 to 69 and 72 of the judgment under appeal that the difference in treatment which they suffered vis-à-vis Silmak was legally justified on the basis of Article 36(2) of the SAA. At first instance, CHEMK and KF claimed that the Council had acted in breach of the principle of equal treatment by forwarding the provisional disclosure document to Silmak, thus enabling it to make an offer of a price undertaking. CHEMK and KF argued before the General Court that the Council did not send that document to them at the same time as it sent it to Silmak, even though they were in the same situation as Silmak. According to CHEMK and KF, the wording of Article 36(2) of the SAA does not impose a requirement for exchanges between the Commission and the former Yugoslav Republic of Macedonia before provisional measures are imposed.

24 Moreover, it is not apparent from the wording of that article that the Commission is required to pass information on to the exporting producers from the former Yugoslav Republic of Macedonia, unlike the obligation imposed on the Stabilisation and Association Council set up by the SAA. According to CHEMK and KF, the General Court has already held, in Joined Cases T‑33/98 and T‑34/98 Petrotub and Republica v Council [1999] ECR II‑3837, that Article 36(2) of the SAA does not impose on the Commission an obligation to refer a matter to the Stabilisation and Association Council before adopting a provisional regulation. The appellants claim that, in any event, none of the provisions relied on by the General Court in support of its decision could contravene the basic regulation, which provides in Article 20(1) that information may be disclosed to the parties only after provisional measures have been imposed.

25 The Council, supported by the Commission, takes issue with the appellants’ arguments and contends that they should be rejected.

Findings of the Court

26 The General Court found, in paragraph 68 of the judgment under appeal, that, under Article 36(2) of the SAA, the Stabilisation and Association Council, set up under the SAA, must be informed of the dumping case as soon as the anti-dumping investigation has been initiated. It must be stated, first, that this obligation is consistent with the aim of that agreement to promote harmonious economic relations between the European Union and the former Yugoslav Republic of Macedonia and to develop gradually a free trade area between them.

27 Secondly, it is clear from the actual wording of Article 36(2) of the SAA that the contracting parties are required to search actively between themselves for a ‘satisfactory solution’ to the dumping. Therefore, even though that article does not expressly provide that the parties, other than the Stabilisation and Association Council, must be notified of the investigation and the relevant information, the General Court properly concluded, in paragraph 68 of the judgment under appeal, that the essential considerations and facts on the basis of which the institutions propose to recommend the imposition of provisional anti-dumping measures must be disclosed to the exporting producers. The General Court was therefore also right to find that, without such disclosure, no satisfactory solution could be envisaged.

28 In those circumstances, the second ground of appeal raised by CHEMK and KF must be rejected as being unfounded in its entirety.

Third ground of appeal: infringement of the obligations under Articles 6(7) and 8(4) of the basic regulation

Arguments of the parties

29 CHEMK and KF challenge the General Court’s finding that, although the parties which offered a price undertaking are required to provide a non-confidential version of that undertaking, Articles 6(7) and 8(4) of the basic regulation do not impose any obligation on the institutions regarding the precise time at which that document must be added to the non-confidential file.

30 According to CHEMK and KF, those articles of the basic regulation are an expression of the principle of the rights of the defence, with the result that, even if they do not expressly lay down the precise time at which the institutions must add the documents to the non-confidential file, in the light of that principle those articles require the non-confidential data to be added immediately to the Commission’s non-confidential file at a time when they serve the rights of defence of the parties concerned.

31 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

33 In that regard, it must be stated that, in paragraph 85 of the judgment under appeal, the General Court rightly concluded that nothing in the wording of Articles 6(7) and 8(4) of the basic regulation supported the appellants’ arguments. Indeed, those provisions make no mention – and, a fortiori , impose no obligation – as regards the time at which a copy of the price undertaking must be added to the non-confidential file of the proceeding.

34 Those articles in the basic regulation enable the parties concerned by the antidumping investigation to have access to the information made available by other parties, provided that such information is relevant to the protection of their interests. However, those provisions do not impose any obligation as to the point in time at which the institutions are required to add, in the present case, a copy of the price undertaking to the non-confidential file so that the parties concerned may consult it. Consequently, the General Court’s interpretation in question is not vitiated by any error of law.

35 In those circumstances, the third ground of appeal raised by CHEMK and KF must be rejected as being unfounded.

Fourth ground of appeal: infringement of the principles of sound administration and of the rights of the defence

Arguments of the parties

36 According to CHEMK and KF, the General Court erred in rejecting their claim that the institutions lacked impartiality in relation to them, contrary to the principle of sound administration. Although the General Court found that Silmak’s offer of an undertaking had been added late to the non-confidential file, it failed to draw any adverse inferences from the Council’s failure to fulfil its obligations. That omission constitutes a serious breach of procedure in that it distorts the evidence and infringes the principles of sound administration and of the rights of the defence.

37 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

38 At the outset, it should be noted that, in paragraph 87 of the judgment under appeal, the General Court stated that an irregularity, such as that relied upon by CHEMK and KF, cannot lead to annulment of the regulation at issue unless that irregularity is actually capable of affecting their rights of defence, and, hence, the content of that regulation.

39 The General Court went on to find, at paragraph 88 of the judgment under appeal, that CHEMK and KF had not put forward any argument to show that the price undertaking that they could have offered after inspecting Silmak’s undertaking and the provisional disclosure document would either have differed from the undertaking that they offered after the disclosure of the definitive disclosure document or have had a better chance of being accepted by the Commission. From this the General Court concluded that the appellants had therefore not demonstrated that, in the absence of the alleged irregularities, the content of the regulation at issue would have been different so far as they were concerned.

40 Similarly, in order to respond to the appellants’ claim that their rights of defence were infringed, inasmuch as Silmak’s undertaking had not been added to the non-confidential file in good time, that is to say, before 3 September 2007, the General Court found, at paragraph 99 of the judgment under appeal, that CHEMK and KF had not demonstrated that their own undertaking would, after they had inspected Silmak’s undertaking, in fact have been different, and therefore would have had a better chance of being accepted by the Commission. The General Court inferred from this that CHEMK and KF would not have been better able to defend their interests if they had had access to the non-confidential version of Silmak’s undertaking before the provisional regulation was adopted.

41 Contrary to what the appellants claim, it does not follow from any of those considerations that the General Court found any irregularity attributable to the institutions in this case relating to the precise time at which Silmak’s undertaking was added to the non-confidential file.

42 In those circumstances, the fourth ground of appeal raised by CHEMK and KF must be rejected as being unfounded.

Fifth ground of appeal: distortion of the evidence

Arguments of the parties

43 CHEMK and KF claim that, if the institutions had observed the principle of equal treatment and/or had at least provided, within the time-limits, the version of Silmak’s undertaking that was added to the non-confidential file, the appellants would also have been in a position to offer a price undertaking and thereby avoid the provisional anti-dumping duties.

44 In particular, CHEMK and KF contest the General Court’s finding in paragraph 75 of the judgment under appeal. They claim that the General Court wrongly found that their offer of a price undertaking had been rejected in recital 132 in the preamble to the regulation at issue. It was in fact recital 131 in the preamble to that regulation that deals with the appellants’ offer. According to CHEMK and KF, it is clear, in particular from recital 131, that, because of considerable volatility in prices, the product concerned was no longer suitable for the acceptance of a price undertaking at the definitive stage, which implies that it might have been suitable beforehand.

45 CHEMK and KF claim in this regard that, at the provisional stage, such volatility in prices did not exist and that the product concerned was indeed suitable for a price undertaking. It follows that CHEMK and KF were not required to put forward any argument to show that the price undertaking which they could have offered earlier would have differed in content from the undertaking which they offered after the definitive disclosure document had been notified. CHEMK and KF accordingly claim that, contrary to the General Court’s findings in paragraphs 73, 75, 87, 88, 99 and 100 of the judgment under appeal, they have demonstrated that the finding of discriminatory treatment in favour of Silmak and/or the breach of Articles 6(7) and 8(4) of the basic regulation and of the rights of the defence were capable of justifying annulment of the regulation at issue.

46 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

47 First, at paragraphs 73 and 74 of the judgment under appeal, the General Court found, for the sake of completeness, that CHEMK and KF had not proved to the requisite legal standard that the finding of ‘discriminatory treatment’ with regard to disclosure of the provisional disclosure document could have affected the lawfulness of the regulation at issue, thereby justifying its annulment. The General Court’s key finding, in paragraph 72 of the judgment under appeal, that there was a legislative basis for the difference in treatment between Silmak and the appellants, namely Article 36(2) of the SAA, was unsuccessfully challenged in the second ground of the present appeal, and that ground was rejected as unfounded in paragraph 28 above.

48 Secondly, at paragraphs 87 and 88 of the judgment under appeal, the General Court also found that a procedural irregularity, such as the one relied on by CHEMK and KF, that is to say, the late addition of the non-confidential version of Silmak’s undertaking to the file, could not lead to annulment of the regulation at issue, since CHEMP and KF had not put forward any argument to show that that regulation would have differed in content. More specifically, the General Court found that CHEMK and KF had not demonstrated that the price undertaking that they could have offered earlier, after inspecting Silmak’s undertaking and the provisional disclosure document, would have differed in content from the undertaking that they offered after the disclosure of the definitive disclosure document and have had a better chance of being accepted by the Commission.

49 In this regard, the General Court’s main reasoning, in paragraph 85 of the judgment under appeal, was unsuccessfully challenged by the fourth ground of the present appeal. It follows from paragraph 35 above that that reasoning remains intact, as does the conclusion reached by the General Court in paragraph 86 of the judgment under appeal.

50 Thirdly, concerning the General Court’s reasoning, in paragraph 99 of the judgment under appeal, that CHEMK and KF would not have been better able to defend their interests if they had had access to Silmak’s undertaking before the adoption of the provisional regulation, it follows from paragraph 41 of the present judgment that the appellants’ arguments seeking to challenge the General Court’s decision have already been rejected in the examination of the fourth ground of appeal.

51 Consequently, so far as concerns the appellants’ arguments that, at the provisional stage, there was no volatility in the price of the product concerned, and that at that stage the product concerned was suitable for a price undertaking, these are immaterial, in that, first, the fact that CHEMK and KF were treated differently from Silmak is founded on a legislative basis which justified that difference in treatment, and, secondly, no breach of Articles 6(7) and 8(4) of the basic regulation and of the appellants’ rights of defence was found to have occurred.

52 In the light of all of the foregoing considerations, the fifth ground of appeal raised by CHEMK and KF must be rejected as being unfounded.

Sixth ground of appeal: breach of Article 3(6) of the basic regulation

Arguments of the parties

53 CHEMK and KF claim that the General Court was wrong not to find that the Council had erred in law in its interpretation of Article 3(6) of the basic regulation, as set out in recital 64 in the preamble to the regulation at issue. In that regard, the Council’s intention was that the assessment of injury should be carried out, not on the basis of the individual situation of each Community producer in isolation, but at the level of the Community industry examined as a whole. However, the General Court, in paragraphs 114 and 121 of the judgment under appeal, established the existence of material injury, having regard in particular to the individual situation of each producer taken separately. In doing so, the General Court erred in law by departing from the Council’s interpretation of Article 3(6) of the basic regulation set out in the regulation at issue.

54 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

55 Under Article 1(1) of the basic regulation, an anti-dumping duty may be applied to any dumped product only if its release for free circulation in the Community causes injury, the term ‘injury’ being taken to mean, in accordance with Article 3(1), material injury to the Community industry, a threat of material injury to the Community industry or material retardation of the establishment of such an industry.

57 Thus, the concept of ‘Community industry’, within the meaning of Article 4(1) of the basic regulation, refers to all Community producers of like products, within the meaning of that regulation, or to the group of those producers whose collective output constitutes a major proportion, for the purposes of Article 5(4) of that regulation, of the total Community production of those products.

58 Article 3(6) of the basic regulation also states that the institutions are required to establish, using all the relevant evidence concerning the situation of the Community industry, the existence of injury suffered by that industry. In particular, that article requires that such proof should entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 thereof are responsible for an impact on the Community industry as provided for in paragraph 5 thereof, and that this impact exists to a degree which enables it to be classified as material.

59 It follows from those provisions that the determination of injury must be carried out at the level of the Community industry as a whole.

64 Finally, the appellants’ specific arguments concerning a methodology that takes into consideration the individual situation of each Community producer are immaterial. Such an option would, in any event, be relevant only if the data of every producer comprising the Community industry, within the meaning of Articles 4(1) and 5(4) of the basic regulation, were aggregated in order to determine whether the release for free circulation in the Community of the dumped product causes injury to the Community industry as a whole, a threat of material injury to the Community industry or material retardation of the establishment of such a Community industry.

65 In those circumstances, the sixth ground of appeal raised by CHEMK and KF must be rejected as being unfounded.

Seventh ground of appeal: error of law regarding the finding of a causal link for the purposes of Article 3(5) of the basic regulation

Arguments of the parties

66 Although, in paragraph 172 of the judgment under appeal, it was stated that Article 3(7) of the basic regulation makes it possible, in certain circumstances, to take into consideration an injury caused individually to a Community producer by a factor other than the dumped imports, where it has contributed to the injury observed in relation to the Community industry as a whole, the General Court, in the view of the appellants, failed to draw the conclusion that the Council had erred, in recital 84 in the preamble to the regulation at issue, in refusing to analyse the causes of the material injury suffered specifically by Huta Laziska SA, a Community producer (‘Huta Laziska’), when analysing the causal link.

67 CHEMK and KF add that, during the administrative procedure and the procedure before the General Court, they had raised the fact that the Council’s conclusions concerning the injury suffered by the Community industry, drawn without taking into account the data relating to Huta Laziska, were vitiated by a manifest error of assessment. The General Court therefore distorted the clear sense of the evidence, in paragraph 173 of the judgment under appeal, by concluding that CHEMK and KF had not sought to establish that the Council’s conclusions were vitiated by a manifest error of assessment.

68 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

69 Under Article 3(7) of the basic regulation, known factors, other than the dumped imports, which are injuring the Community industry at the same time must be examined in order to ensure that injury caused by those other factors is not attributed to the dumped imports for the purposes of Article 3(6) (see Case C‑398/05 AGST Draht- und Biegetechnik [2008] ECR I‑1057, paragraph 31).

70 In determining injury, the institutions are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of Community producers themselves (see Case C‑358/89 Extramet Industrie v Council [1992] ECR I‑3813, paragraph 16, and AGST Draht- und Biegetechnik , paragraph 35).

71 It is, however, settled case-law that the determination of the existence of harm caused to the Community industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see Ikea Wholesale , paragraph 41). That is particularly the case with regard to the determination of the factors injuring the Community industry in an anti-dumping investigation (see AGST Draht- und Biegetechnik , paragraph 34).

72 It is clear from paragraph 172 of the judgment under appeal that the General Court did not exclude the possibility that, in certain circumstances, an injury caused individually to a Community producer by a factor other than the dumped imports must be taken into consideration where it has contributed to the injury observed in relation to the Community industry as a whole.

73 In paragraph 173 of the judgment under appeal, the General Court found that the injury which Huta Laziska may have suffered owing to problems with the electricity supply was duly taken into consideration, as is clear from recital 101 in the preamble to the regulation at issue. In that regard, the General Court found that CHEMK and KF had not sought to establish that that assessment, according to which, even if the data pertaining to that producer were excluded from the injury analysis, the trends observed for the Community industry would continue to show the existence of injury, was flawed by a manifest error of assessment.

74 The Council and the Commission, in their assessment of the injury caused to the Community industry, therefore did not fail to take account of the known factor, namely, the electricity supply problem concerning Huta Laziska. Indeed, those institutions examined that factor, and, in recital 101 in the preamble to the regulation at issue, they concluded that it had no bearing on the trends observed for the rest of the Community industry.

76 In those circumstances, the General Court rightly decided at paragraph 173 of the judgment under appeal, that, since CHEMK and KF had not sought to establish a manifest error of assessment by the Council in relation to the latter’s position set out in recital 101 in the preamble to the regulation at issue, according to which, even if no account had been taken of the data relating to Huta Laziska, the trends observed for the Community industry would continue to show the existence of injury to that industry, their argument that the injury suffered by Huta Laziska had been caused, not by the dumped imports, but by difficulties with the electricity supply, cannot be accepted.

77 In those circumstances, the seventh ground of appeal raised by CHEMK and KF must be rejected as being unfounded.

Eighth ground of appeal: infringement of the obligation to state reasons with regard to the determination of the injury

Arguments of the parties

78 CHEMK and KF claim that, in paragraphs 207 and 208 of the judgment under appeal, the General Court erred in its interpretation of the obligation imposed on the institutions to provide reasons for their decisions, and it did not comply with that obligation in its assessment. In the alternative, they claim that the General Court distorted the evidence.

79 CHEMK and KF, citing in support of their ground of appeal the judgment in Petrotub and Republica v Council , consider that the reasoning in recital 101 in the preamble to the regulation at issue amounts to a peremptory statement that does not contain any explanatory element, with the result that that reasoning fails to meet the requisite legal standard. Indeed, contrary to what the General Court decided in that regard, on the basis of the judgment in Petrotub and Republica v Council , such peremptory statements concern all areas and all statements which do not contain sufficiently detailed explanatory elements enabling the parties concerned and the Courts of the European Union to exercise their powers of review. Consequently, by finding that the statement of reasons set out in recital 101 in the preamble to the regulation at issue meets the requisite legal standard, in the light of its brief, but precise and unambiguous nature, the General Court did not follow the test set out in the judgment in Petrotub and Republica v Council and manifestly distorted the clear sense of the evidence. According to the appellants, that recital contains no explanatory element. In that regard, CHEMK and KF point out that they expressly and timeously requested a new disclosure of the facts supporting the conclusion in that recital.

80 The Council, supported by the Commission, disputes the appellants’ arguments and contends that they should be rejected.

Findings of the Court

81 It must be noted that the General Court addressed the parties’ pleas relating to the failure to comply with the obligation to state reasons in paragraph 206 of the judgment under appeal. By contrast, the General Court’s reasoning in paragraphs 207 and 208 of the judgment under appeal, challenged by the appellants in the present appeal, is included merely for the sake of completeness in relation to the reasoning set out in paragraph 206.

83 It follows that the eighth ground of appeal raised by CHEMK and KF must be rejected as being ineffective.

84 Since none of the grounds relied on by CHEMK and KF in support of their appeal can be upheld, the appeal must be dismissed.

Costs

85 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since CHEMK and KF have been unsuccessful, and since the Council has applied for costs, the appellants must be ordered to pay the costs of the appeal. Under Article 140(1) of the Rules of Procedure, which also applies to appeal proceedings pursuant to Article 184(1) thereof, the Commission is to be ordered to bear its own costs.

On those grounds, the Court (Second Chamber) hereby:

1. Dismisses the appeal;

2. Orders Chelyabinsk Electrometallurgical Integrated Plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF) to pay the costs of the present proceedings;

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

[Signatures]

* Language of the case: English.