Judgment — ECLI:EU:T:2004:317
Date: 2004-10-28
Language of the case: English
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Anti-dumping and anti-subsidy measures;Interpretation of Community law
Procedure: Action for annulment - unfounded

summary of Bizerba’s reply of 17 November 1999 to the investigation questionnaire. In point I.1 of that document, it is stated that ‘fortunately, the introduction of the euro leads to a temporary increase in demand since the last quarter of 1998’. In Bizerba’s letter of 10 April 2000, it is stated that ‘due to the introduction of the euro the EU sales turnover began to slightly increase in 1998 and during the [investigation period]’ and that ‘the total EU … market [for electronic weighing scales] however [was] susceptible to a much higher rise of [approximately] 50% from 1997 to the [investigation period] due to the [anticipated] substitution of [electronic weighing] scales in the course of the euro introduction’. Finally, it is clear from the graphs which Bizerba attached to its letter of 10 April 2000 that sales of all the electronic weighing scales increased from 1996. It must therefore be held that the information supplied by Bizerba is at times contradictory and in any event uncertain. 211 Given that, in anti-dumping investigations, the Community institutions must examine all the figures supplied to them by the Community industry and given the wide discretion conferred on the Community institutions in such procedures, the figures in the contested regulation, which are based on those in the final disclosure, may differ from those supplied by an undertaking at any given time, especially where those figures are contradictory or inconsistent. Moreover, as Bizerba claimed in its statements of 10 April 2000, there was a strong growth in the entire Community market for electronic weighing scales from 1997 to the investigation period. The Council was thus entitled to find that the introduction of the euro began to have a noticeable effect as early as 1997. In addition, the applicant has failed to submit evidence showing that the Community institutions were mistaken in that regard. 212 The Community institutions took the view that the effect of the introduction of the euro reached its peak in 1999 whereas the applicant considers that it was reached during 2001 and refers to the figures supplied by the Community industry. 213 The fact that the Community institutions’ findings are not entirely consistent with all the observations made by the Community industry does not mean that the Community institutions manifestly erred in their assessment. It is clear from point 7.4 of the Commission’s letter of 4 October 2000 that the Commission had based its forecasts on the information submitted by the Community industry on the effect of the introduction of the euro. In its defence, the Council stated that it was on the basis of that assessment that the Community institutions predicted that the effect of the introduction of the euro would reach its peak in 1999. Moreover, it is apparent from the Community producers’ complaint that they had stated that it was anticipated that the effect of the introduction of the euro would disappear in the period between 2000 and 2003. Finally, although the contested regulation states that the effect of the introduction of the euro reached its peak in 1999, it is also pointed out that the temporary increase in sales continued until 2000. It is expressly stated in the 64th recital in that regulation that the effect of the introduction of the euro was to bring forward some sales from one period (2001 to 2004) to another (1997 to 2000). Thus, according to the contested regulation, the introduction of the euro continued to have an effect in 1999. 214 The applicant has failed to adduce evidence showing that Community institutions’ forecasts were manifestly erroneous and that they were not based on positive proof. Moreover, the applicant has failed to show how the Council’s findings as to injury would have differed if the introduction of the euro had begun to have an effect at the end of 1998 and reached its peak in 2001. At any rate, the introduction of the euro had an effect during the investigation period. 215 Consequently, the fourth complaint cannot be upheld. 216 Accordingly, the third part of the second plea must be rejected. 6. Fourth part: manifest error by the Community institutions when assessing the magnitude of the actual margin of dumping a) Arguments of the parties 217 The applicant submits that the Community institutions made a manifest error of assessment, infringing Article 3(5) of the basic regulation, when assessing the magnitude of the actual margin of dumping. The margin of undercutting of the prices for Community electronic weighing scales by scales from the countries concerned was distinctly higher than the actual margin of dumping. Thus, the potential elimination of dumping would not give rise to any substantial change in the margin of undercutting. The applicant therefore argues that the margin of dumping and the margin of undercutting must be compared. It submits that such a comparison can reveal that the injury is caused by factors other than dumping. 218 The Council disputes that the Community institutions are under an obligation to compare the undercutting margin and the dumping margin, two factors which are difficult to compare. Whatever the actual undercutting margin, the margin of dumping must always be regarded as relevant on its own for the purpose of determining injury if it is more than de minimis within the meaning of Article 3(4) of the basic regulation. b) Findings of the Court 219 The basic regulation does not provide that dumping margins are to be compared with undercutting margins or that, where the dumping margin is lower than the undercutting margin, that comparison shows that the injury suffered by the Community industry is caused not by dumping but by other factors such as natural cost advantages enjoyed by the exporters. 220 Accordingly, the Community institutions cannot be censured for having failed to make such a comparison. In accordance with Article 3(3) of the basic regulation, the question whether the price of a like product of the Community industry has been undercut is to be examined when assessing the effect of dumped products on prices, whereas, in accordance with Article 3(5) of the basic regulation, other factors, including the magnitude of the actual margin of dumping, are to be evaluated when examining the impact of the dumped products on the Community industry. The Council described its examination of undercutting in the 72nd to 74th recitals and, in the 90th recital, it examined the magnitude of the actual margin of dumping, as noted above. Thus, when assessing the injury, the Council took account of one of the factors listed in Article 3(5) of the basic regulation and was not required to compare that factor with the undercutting margin. 221 The fourth part of the second plea must therefore be rejected as unfounded. 7. Fifth part: infringement of Article 3(2) and (3) of the basic regulation in taking account of Eurostat figures a) Arguments of the parties 222 The applicant submits that the Council’s finding that the Community industry had suffered material injury was reached in breach of Article 3(3) in conjunction with Article 3(2) of the basic regulation in so far as, in order to determine the volume of imports, it relied on Eurostat statistics which included imports of products other than the relevant product. 223 The definition corresponding to CN code 8423 8150 included products which did not fall within the scope of the procedure, as the test for inclusion refers to any type of scales with a weighing capacity of less than 30 kg intended to be used in trade. The applicant observes that the Council concedes that CN code 8423 8150 covers scales other than electronic weighing scales. 224 The applicant also relies on the figures resulting from the market study carried out by the Community producers which raised the complaint, according to which only 50% of the imports from China which were classified under the abovementioned code were electronic weighing scales covered by the contested regulation. 225 The applicant challenges the Council’s statement that all the evidence obtained suggested that only electronic weighing scales were exported from the countries concerned. First, the applicant submits that, during the investigation, various parties produced prima facie evidence that Eurostat was not a reliable source for the purpose of determining the volume of imports of electronic weighing scales. Secondly, with respect to imports under the heading CN 8423 8150, the applicant states that, because the exporters and importers which cooperated in the investigation exported and imported only electronic weighing scales, they could not prove that other products were likewise imported under that heading. Thirdly, according to the applicant, the Commission was aware of the existence of Chinese manufacturers which produced weighing scales other than electronic weighing scales. However, since those other scales were not the subject of the investigation, it could not be presumed that those exporting producers cooperated with the Commission in that investigation. Fourthly, the applicant submits that the volume of imports from China ought to have been determined on the basis of the verified figures for the three Chinese exporters. Fifthly, in the applicant’s submission, the Eurostat figures on the average import prices, which were annexed to the complaint, clearly show that Eurostat was no longer a reliable source of information regarding China. The applicant notes that there were several factors which showed that it was inappropriate to use Eurostat figures. 226 Finally, the applicant points out that, in several recent anti-dumping procedures, the Council, when determining injury, has challenged the relevance of statistics supplied by Eurostat because the CN code under which the relevant product fell covered products which were not the subject of the procedure being conducted. It thereby relies on, inter alia, the 35th recital in Council Regulation (EC) No 2313/2000 of 17 October 2000 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cathode-ray colour television picture tubes originating in India and South Korea, and terminating the anti-dumping proceeding in respect of imports originating in Lithuania, Malaysia and China (OJ 2000 L 267, p. 1). That approach was confirmed in Case C‑315/90 Gimelec and Others v Commission [1991] ECR I‑5589, paragraphs 13 and 14). 227 The Council does not deny that CN code 8423 8150 also applies to weighing scales other than those which were the subject of the investigation or that Eurostat does not draw a distinction between the various models covered by that code. However, the Council states that all the evidence obtained, including that provided by the exporters and importers which cooperated in the investigation, suggested that only electronic weighing scales were exported by the countries concerned. Moreover, the Council states that the Community institutions only had information on less than 50% of total imports, as a result of the extremely low level of cooperation on the part of the exporters, in particular the Chinese exporters. However, it cannot be concluded from the fact that only limited information on exports from China was available that the Council exceeded the limits of its discretion by basing its assessment on the figures supplied by Eurostat. b) Findings of the Court 228 The applicant argues that, by determining the volume of imports on the basis of Eurostat statistics, even though they were aware that CN code 8423 8150 covered goods other than electronic weighing scales, the Community institutions failed to base their findings as to the volume of imports on positive evidence. The Court’s examination of the use of the Eurostat figures in determining the volume of imports will therefore be confined to that specific aspect. 229 The applicant relies on Gimelec, cited in paragraph 226 above (paragraphs 13 and 14). The Court’s judgment in that case stated as follows: ‘The Commission was entitled to base its decision on the specific data resulting from its investigation, even if they did not correspond to the Community statistics on which the applicants rely. In fact, as the Commission has pointed out, without being challenged on that point by the applicants, the Community statistics cannot provide any evidence because they classify the electric motors under a tariff heading which includes other products as well. It follows that the Commission determined the volume of imports in question on the basis of the information reasonably available to it.’ 230 It is clear from that judgment that the Community institutions do not commit a manifest error of assessment where they base their findings on the information reasonably available to them. The case-law also makes clear that the Community institutions are not bound by the replies of the parties concerned if the degree of cooperation is low and, therefore, the figures supplied by one or two undertakings concerned cannot be regarded as representative (see, to that effect, Case T‑161/94 Sinochem Heilongjiang v Council [1996] ECR II‑695, paragraph 65). 231 In the present case, the Community institutions took the view that, despite the fact that CN code 8423 8150 may also include products other than electronic weighing scales, such as counting scales and check-out scales, it was, for the purposes of the present investigation, appropriate to use the Eurostat figures in order to determine the volume of imports from the countries concerned because no evidence was submitted to the Commission during the investigation which suggested that scales other than electronic weighing scales had been imported into the Community from the countries concerned. 232 In response to a written question put by the Court, the Council stated that the Community institutions did not use the Eurostat figures as such. As regards imports from China in 1995 and 1998 and during the entire investigation period, the Commission found that the figures on volume reported by Eurostat were far too high and that the prices established by Eurostat were far too low. For example, in respect of 1995, Eurostat reported an average price of EUR 7 per unit. It was therefore clear that those prices could not relate to complete units of electronic weighing scales but rather to imports of parts. The Commission therefore adjusted the Eurostat figures. According to the Council, the adjustments made by the Commission brought the import volumes to more plausible unit levels, which appeared reasonable in the light of the figures supplied by the Chinese exporters which cooperated in the investigation, the level of cooperation on the part of the Chinese market and the estimates made by the Community industry which lodged the complaint. Thus, the Commission used in its investigation the figures disclosed to the applicant in the disclosure letter of 21 September 2000. Furthermore, the applicant was, according to the Council, aware that the basic Eurostat figures had been adjusted and did not object to that adjustment. It simply claimed that the Commission had failed to prove that the Eurostat figures did not cover products other than electronic weighing scales. 233 In its reply, the Council also provided the Court with the Eurostat figures on the basis of which the adjustment was made. Those figures do indeed differ from the Eurostat figures which the Community industry attached to its complaint. In order to explain that discrepancy, the Council stated at the hearing that, because Eurostat’s figures are continuously revised, the basic Eurostat figures used by the Commission at the final stage of its investigation are not identical to those which were available when the complaint was lodged. 234 It is apparent from the Eurostat figures provided by the Council that, during the investigation period, the volume of imports from China was 47 658 units. However, the figure used by the Commission following the adjustment was 16 827 units. Accordingly, rather than use the figure of 63 894 units, which, according to Eurostat, represented the exports from the three countries concerned, the Commission likewise drew up a lower figure of 33 063 units. Similarly, as regards 1995, the Eurostat figures reported imports from China at 21 289 units, whereas the figure used by the Commission was 3 456 units, and, although Eurostat obtained a total of 32 686 units for imports from the three countries concerned, the Commission estimated that total at 14 853 units. 235 It is clear from the 63rd, 70th and 71st recitals in the contested regulation that the figures drawn up by Eurostat were used to assess Community consumption, the volume of imports and, thus, market shares. According to the Council’s statements, the figures mentioned are therefore adjusted figures which show that the total volume of imports was 33 063 units during the investigation period. 236 However, it is clear from the 105th recital in the contested regulation that, during the investigation period, the exporting producers cooperating in the investigation exported to the Community almost 15 000 units, 97% of which were in the low-range segment of the market. 237 There is therefore a large discrepancy between the figures provided by the cooperating exporting producers and the adjusted Eurostat figures. In that connection, the Council points out that the level of cooperation by the exporters, in particular the Chinese exporters, was low. At the hearing, it stated that, according to a report drawn up by the association of Chinese producers of scales, which the Council did not propose to place on the file, the market was shared by 15 companies. Of those 15 companies, only three cooperated in the investigation. Thus, according to the Council, a large number of those companies did not cooperate in the investigation procedure and, in the light of the Eurostat figures, which showed the difference between sales actually identified and those which had been recorded, the Community institutions had good reason to believe that many of those companies were exporting but had not cooperated. 238 Under Article 18 of the basic regulation, in the event of a failure to cooperate, findings may be made ‘on the basis of the facts available’, which must be verified, where possible, by reference to other available independent sources such as official statistics on imports. 239 Moreover, in the present case, as is apparent from the fifth recital in the contested regulation, with the exception of one Taiwanese exporting producer, all the exporting producers, including the three Chinese companies, which the Community-industry producers had mentioned in their complaint, in fact cooperated in the investigation. The fact that the Community industry mentioned only three Chinese companies in its complaint does not mean that there were no other Chinese exporting producers on the market. Consequently, the Community institutions cannot be censured for having taken the view that some exporting producers had not cooperated. It should be noted that, at the hearing, the applicant claimed that the report drawn up by the association of Chinese producers of scales had been attached to the replies to the Commission’s questionnaire. However, no such report is to be found on the file. In its response to the questionnaire on the grant of market economy status, the applicant referred to six main producers of electronic weighing scales, including the three cooperating companies. 240 As regards the applicant’s argument that the CN code in question also applies to products other than electronic weighing scales, it should be recalled that the Commission, rightly, adjusted the Eurostat figures because it took the view that other products (namely, in this case, spare parts) had been imported under that code, and ultimately obtained a figure of 33 063 units. The Community institutions received no specific information subsequently which showed that that figure also included imports of products other than electronic weighing scales. Moreover, the applicant has failed to submit the slightest evidence that this was the case. Accordingly, the Commission was entitled to take the view that, although the code in question applies to other products, the figure of 33 063 units represented only imports of electronic weighing scales. It should be borne in mind that the Community institutions enjoy wide discretion and that, as was pointed out in paragraph 119 above, it is for the applicant to adduce evidence by which the Court may find that the Council committed a manifest error of assessment. The applicant, however, has failed to adduce such evidence. 241 In the circumstances of the present case, it must be held that the Community institutions did not commit a manifest error of assessment in using the adjusted Eurostat figures in order to assess consumption within the Community and to determine the total volume of imports from the countries concerned and the market shares held by the Community and by the importers. 242 The fifth part of the second plea therefore cannot be upheld. Accordingly, the second plea must be rejected in its entirety. C – The third plea: infringement of Article 3(6) of the basic regulation 1. Introduction 243 The applicant submits that the Council infringed Article 3(6) of the basic regulation by committing a manifest error of assessment when determining causation. 244 The contested regulation deals with causation in the 98th to 116th recitals. In the 115th and 116th recitals, the following conclusion is reached: ‘In view of the coincidence in time between, on the one hand, the price undercutting established, the significant market share gained by the dumped imports from the countries concerned and, on the other hand, the corresponding loss of market share suffered by the Community industry, as well as the reduction of its sales prices, it is concluded that the dumped imports originating in the countries concerned have caused material injury to the Community industry. It was, therefore, concluded that the dumped imports originating in the countries concerned have caused material injury to the Community industry. While other factors may have contributed, they are not such as to break the causal link between the dumped imports and the injury suffered by the Community industry.’ 245 The applicant puts forward several arguments in support of the third plea. Those arguments are for the most part the same as those relating to the determination of injury which were examined in connection with the second plea. Reference will therefore be made, where appropriate, to the preceding paragraphs. The applicant’s line of argument can be divided into four parts. 2. First part: profitability a) Arguments of the parties 246 The applicant relies on the appreciable increase in the profitability of the Community industry between 1995 and the investigation period as evidence that imports of dumped products had no effect. The claim made by the Council in the 102nd recital in the contested regulation that there were ‘adverse consequences for the profitability of the Community industry’ is contradicted by the data in the 84th recital, according to which ‘the return on turnover of [electronic weighing scales] as a whole rose from low positive levels in 1995 to around 10% in the investigation period’. 247 The Council disputes the applicant’s arguments. b) Findings of the Court 248 It is sufficient to point out that the applicant fails to have regard to the impact of the introduction of the euro. Reference must be made to paragraphs 199 to 202 above, in which it is shown that this argument, which is linked more to injury than to causation, is unfounded. 3. Second part: the trend in sales prices a) Arguments of the parties 249 The applicant argues that the fall in the prices for high and mid-range models of electronic weighing scales could not have been caused by imports from the countries concerned. According to the Council’s own findings, the volume of imports of mid and high-range scales was negligible. The Council failed to examine and to explain the fact that the prices in the mid-range segment sank even lower than those in the low-range segment and that prices in the high-range segment also fell to a very similar extent. 250 According to the applicant, the fall in prices was in fact attributable to the well-known fact that the price of electronic goods naturally tends to decrease as technology advances. Thus, the Community institutions failed to examine the trend in production costs when assessing the impact of imports on the trends in the prices of electronic weighing scales in those segments. Moreover, in the applicant’s view, the reference to the knock-on effect is irrelevant. The applicant claims that the fall in the prices of electronic weighing scales in the mid and high-range segments did not cause a decrease in the profitability of those segments. The applicant submits that, on the contrary, profitability increased. 251 Moreover, the applicant submits that the Community institutions failed to take proper account of the fact that prices decreased as a result of the emergence of multiple users, which led to a shift in purchasing power. The applicant takes the view that this error of assessment stemmed from the fact that the Community institutions took account of changes in the structure of and/or mergers between companies which were not part of the Community industry. The Community institutions thus failed to provide proof that the increase in the purchasing power of supermarket chains did not cause the material injury referred to in the 113th and 114th recitals in the contested regulation. 252 Moreover, the applicant submits that, in order to establish that the alleged fall in prices in each of the three segments of electronic weighing scales did indeed constitute a material injury to the like product, it must also be shown what impact those falls in price had on profitability in those three segments. The applicant points out that the Community industry recorded large profits and that, if profits remain at a satisfactory level despite the fall in the sales price, no material injury is caused by imports. According to the applicant, the oligopolistic profits made by the Community producers may have decreased as a result of the competition from imports. 253 The Council disputes the applicant’s arguments. b) Findings of the Court 254 As regards the argument that the Community institutions failed to take account of the effect on sales prices of the increase in productivity, it is sufficient to state that that argument has already been addressed in paragraph 198 above, in which it was held that it is irrelevant. The claim that the decrease in the prices for models of electronic weighing scales in the mid and high-range segments was caused by significant reductions in production costs was likewise addressed in paragraph 198 above. As regards the knock-on effect, described in the 88th recital in the contested regulation, which states that ‘… the price depressive effects of the dumped imports have also been felt within the mid and high-range segments because prices in one range inevitably have a knock-on effect on the other segments’, the applicant has failed to put forward any arguments invalidating the Council’s findings. Moreover, as is clear from the 114th recital in the contested regulation, the Community institutions did in fact examine the effect on prices of an increase in productivity when examining other factors. The applicant has failed to show how the Community institutions made an error of assessment in finding that the improvements in productivity did not break the causal link in question. 255 Moreover, as regards the complaint concerning multiple users, the Court finds that, as the applicant itself concedes, that factor was examined by the Council. The 113th recital in the contested regulation states: ‘Throughout the Community, the market share of the multiple users (i.e. large supermarket chains) has increased significantly, whereas the number of smaller users has declined. This change of structure has increased the buying power of the user industry in general, and it is likely that this change has had some downward effect on average prices.’ 256 In the 114th recital, the Council stated: ‘As mentioned at recital 59, the structure of the Community industry has also changed substantially over the period considered. The reduction in the number of companies and improvements in productivity, shown in recital 90, were designed to deal with these market changes. It was concluded that internal market competition arising from changes in the structure of the Community retail sector did not break the causal link between the dumped imports and the injury suffered by the Community industry.’ 257 Accordingly, in the present case, the Council examined whether multiple users had emerged. Moreover, in arguing that the error of assessment stems from the fact that the Community institutions took account of changes in the structure of and/or mergers between companies which are not part of the Community industry, the applicant misinterprets the term ‘Community industry’. According to the applicant, that term covers only the Community producers which participated in the investigation. However, Article 4(1) of the basic regulation states that the term ‘Community industry’ refers to all Community producers of like products or to those of them whose collective output of the products constitutes a major proportion of the total Community production of those products. 258 With respect to the applicant’s complaint that the Community institutions ought to have shown what effect the decreases in prices had on profitability in each of the three segments, reference must be made to paragraphs 127 to 131 above. It is sufficient to observe that, as the Council argues, the Community institutions are under no obligation to carry out a separate examination of injury and of the causal link for each of the product segments. As is clear from the 84th recital in the contested regulation, the models in the low-range segment, which accounted for 97% of all the imports, had a particularly serious impact because the Community industry suffered significant losses in that segment during the investigation period. 259 Therefore, it has not been established that the Community institutions committed a manifest error of assessment. 4. Third part: calculation of the undercutting margin a) Arguments of the parties 260 The applicant submits that the Community institutions calculated the undercutting margin only in relation to the low-range models of electronic weighing scales and that, as a result, their findings as to causation are inconsistent with the definition of the like product. 261 The Council challenges the applicant’s argument. b) Findings of the Court 262 According to the 73rd recital in the contested regulation: ‘The vast majority of models sold in the Community by the cooperating exporting producers were for low range models (over 97% by volume). The calculations made have not, therefore, included the smaller quantities of mid and high-range models as they were considered unrepresentative.’ 263 The Commission had explained in the disclosure document of 21 September 2000 that ‘in order to ensure a fair comparison, the undercutting margins and the underselling margins were calculated using similar low range models produced and sold by the Community industry’. Given that the low-range segment models accounted for 97% of total imports from the countries concerned, the Community institutions were entitled to calculate the undercutting margin solely in respect of the low-range segment and did not commit a manifest error of assessment in doing so. It must be observed, in addition, that all the applicant’s imports were in the low-range segment and, thus, the margin of undercutting by the applicant in respect of the other segments could not have been calculated. 264 The applicant’s argument is therefore unfounded. 5. Fourth part: the market share a) Arguments of the parties 265 The applicant calls into question the figures on the development of market share. According to the applicant, the development of the market share and of the volume of imports ought to have been assessed in absolute terms. It submits, first, that the increase in the volume of imports from the countries concerned had no effect on the volume of sales by the Community industry and, secondly, that those imports decreased in volume from 1997. The applicant points out that the change in the volume of sales by the Community industry was extremely favourable. Moreover, the other traders operating in the Community appear to be the most significant players on the Community market. The applicant also points out that the Community institutions failed to take account of the fact that the imported products were consumed progressively and that, therefore, the figures on consumption are inaccurate. The applicant states that it has shown, on the basis of the figures produced by the Community institutions, that imports of electronic weighing scales from the countries concerned increased more slowly than consumption and that the market share held by those imports decreased between 1996 and the investigation period. By contrast, according to the applicant, the volume of sales of products of the Community industry increased and that industry’s market share remained unchanged. 266 In the Council’s view, market share is by definition a relative term based on a comparison of sales and consumption. The Council contends that the increase in sales by the Community industry, in absolute terms, was attributable to the effect of the introduction of the euro. As regards the applicant’s statement that the largest increase in imports from the countries concerned took place between 1995 and 1996, the Council submits that that increase was caused by stockpiling and that products imported in 1996 were not consumed immediately upon entering the Community. It states that, despite the fact that there were stockpiles, imports did not decrease and that this is evidence of the ability of the dumped imports to penetrate the Community market. 267 Moreover, the Council denies the claim that the injury was in fact caused by other Community producers which did not support the complaint. It points out that two of the other largest producers supported the complaint from the outset and a large company related to a Chinese producer, Mettler Toledo, could not have contributed to the injury because its prices were fixed fairly. b) Findings of the Court 268 In the 81st recital in the contested regulation, the Council refers to the following evidence: ‘The Community industry’s share of the Community market fell for all [electronic weighing scales] from 26.1% in 1995 to 24.9% in the investigation period; i.e. a fall of 4.6%. In contrast the Community industry’s share of the low range market fell from 21.8% in 1995 to 17.1% in the investigation period; i.e. a fall of 22%.’ 269 According to the 100th recital: ‘During the period considered consumption on the Community market increased by 35%. However, Community industry sales only increased by 29% and the imports from the countries concerned increased by 123%.’ 270 Finally, the following is stated in the 101st recital: ‘As explained at recital 81, the Community industry’s market share fell by 4.6% over the period considered. In contrast, the market share of imports from the countries concerned increased from 9.2 to 15.1% over the same period.’ 271 In its application, the applicant drew up three tables on the basis of the figures in the disclosure document of 21 September 2000 and in the contested regulation on the volume of sales, in absolute terms, by the Community industry and on the market shares held by the Community industry and the countries concerned. It is appropriate to draw up a new table showing the information contained in those three tables and, moreover, the trend as a percentage for each set of figures. The table must be drawn up in the light of the fact that the imports from CAS Corp., which were not dumped, ought not to have been taken into account. 1995 1996 1997 1998 IP Trend as a % Community industry’s market share 26.1% 25.1% 26.0% 23.6% 24.9% - 4.6 Community consumption 161 682 172 314 177 391 201 123 218 655 35 Volume of sales by the Community industry 42 199 43 251 46 122 47 465 54 445 29 Volume of sales by other traders in the Community 93 301 87 749 93 897 105 554 120 491 29 Total imports 26 182 41 314 37 372 48 104 43 719 67 Total imports from China, South Korea and Taiwan * 14 853 11 273 32 834 28 753 26 422 20 850 34 464 29 838 33 063 29 248 123 159 Market share held by China, South Korea and Taiwan * 9.2% 7.0% 19.1% 16.7% 14.9% 11.8% 17.1% 14.8% 15.1% 13.4% 64 91 Other imports 11 329 8 480 10 950 13 640 10 656 - 6 * The second line represents the total excluding products imported by CAS Corp. 272 Using those figures, the applicant attempts to show that the volume of the Community industry’s sales increased steadily and significantly during the analysis period and that, in so far as the Community industry lost any of its market share in relative terms, that loss could not have been caused by imports from the countries concerned, which themselves suffered a loss in terms of market shares. 273 The applicant’s line of argument cannot be upheld. An assessment of sales volume as compared with consumption in the Community cannot be expressed in absolute terms since market share is a relative term expressed as a percentage. It is apparent from the above figures that the Community industry had a market share of 26.1% in 1995 and of 24.9% during the investigation period, which corresponds to a relative decrease of 4.6%. The market share held by the dumped imports was 7% in 1995 and 13.4% during the investigation period, which corresponds to a relative increase of 91%. 274 A market share of 13.4% may be regarded as sufficiently strong to indicate that the imports from the countries concerned may have had a prejudicial effect on the Community industry (see, to that effect, Case T‑51/96 Miwon v Council [2000] ECR II‑1841, paragraph 106). Moreover, whilst the volume of sales by the Community industry increased by 29% during the analysis period, that increase is not in proportion to the increase in consumption during the same period of 35%. The figures clearly show that, as the Council claims, the Community industry’s market share declined. The imports of electronic weighing scales from the countries concerned also increased by approximately 159% during the analysis period. The applicant is wrong to claim that the other traders appear to play the most important role on the Community market. The volume of those traders’ sales increased by only 29% during that period. 275 Furthermore, with respect to the applicant’s argument that, if 1996 and the investigation period are compared, the result is different and, in particular, there is a decrease of 4% in the market share held by the dumped imports, the Court finds that, even if the view were to be taken that the market share held by the imports from the countries concerned declined, it is apparent, if one takes 1996 as the beginning of the period, that those imports’ market share, namely 13.4% during the investigation period, remained substantial (see, to that effect, Miwon, cited in paragraph 274 above, paragraph 106). 276 Moreover, the results vary depending on the period chosen for the purpose of examining the figures. In the present case, the analysis period was from 1995 to the end of the investigation, that is to say, 1999. As the Council submits, the best and most reliable figures for establishing the parameter for consumption and, by extension, the market shares are the overall figures for the entire analysis period. The Court concurs with the Council’s finding that those figures confirm that there was a clear concomitance between the Community industry’s loss of market shares and the acquisition of market shares by the dumped imports, which is significant in terms of causation. 277 It should also be observed that the Community institutions have wide discretion in determining what period is to be considered for the purpose of determining injury in anti-dumping proceedings (Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraph 86). In the present case, the applicant has not challenged the determination of the analysis period as such and it has not been established that the Community institutions exceeded the limits of their discretion in basing their assessment of the injury on the period from 1995 to the end of the investigation period. 278 Accordingly, the fourth part of the third plea cannot be upheld. 279 It follows from all of the above that the applicant has failed to demonstrate that the Community institutions committed a manifest error of assessment when examining the causal link. Accordingly, they did not infringe Article 3(6) of the basic regulation. 280 The third plea must therefore be rejected. D – The fourth plea: infringement of the procedural rules laid down in the basic regulation 281 The fourth plea comprises, essentially, three complaints of procedural errors. 1. The first part: infringement of Article 20(4) of the basic regulation a) Arguments of the parties 282 The applicant submits that the Community institutions infringed Article 20(4) of the basic regulation in that the Commission failed to disclose certain facts and considerations forming the basis for its intention to propose to the Council the imposition of definitive duties. 283 Despite the applicant’s request for additional information, the Commission failed to reply to questions 2, 3, 4, 6, 10, 11 and 12 put to it in the applicant’s fax of 29 September 2000 and thus prevented the applicant from effectively defending its interests. The applicant submits that it is clear from the Commission’s answers to each of the questions relating to the investigation findings that the Community institutions deliberately refused to provide it with information and obstructed the applicant’s exercise of its rights of defence. 284 The Council states that the Commission is under an obligation to disclose the essential facts and considerations on the basis of which it intends to propose to the Council that definitive anti-dumping duties be imposed in so far as that information is relevant to the parties’ defence of their interests. Any party which considers that the information disclosed is insufficient must ask the Commission to clarify that information. Where the Commission responds to a request for additional information but the requesting party considers the response to be insufficient, that party must clearly state so. In addition, the Council submits that the failure by the Commission to disclose certain information requested by a concerned party does not in itself mean that the measures finally adopted must be annulled, as the party concerned must demonstrate that its ability to defend its interests effectively has in fact been affected. 285 The Council submits that, since the applicant has failed to explain why it was unable to defend its interests effectively, its claims are unsubstantiated and therefore inadmissible. Alternatively, the Council submits that the Commission responded properly and adequately to its questions. In addition, the Council argues that the statements made by the applicant in its reply are irrelevant and for the most part inadmissible because they include new factual allegations which ought to have been submitted to the Court in the application. b) Findings of the Court 286 First of all, as regards the alleged inadmissibility of the first part of the fourth plea, it is sufficient to state that the applicant’s claims satisfy the requirements of Article 44(2) of the Rules of Procedure and are therefore admissible. 287 The purpose of the obligation on the Commission under Article 20(4) of the basic regulation to disclose to undertakings concerned by an anti-dumping procedure the essential facts and considerations on the basis of which it is intended to impose anti-dumping duties is to ensure respect for the rights of the defence of the undertakings involved in such a procedure (Case T‑88/98 Kundan and Tata v Council [2002] ECR II‑4897, paragraph 131). The present part of the plea, alleging breach of that provision, must therefore be interpreted as alleging, in essence, a breach of the rights of the defence of the applicants during the administrative procedure, which came to an end with the adoption of the contested regulation. 288 First, the principle of respect for the rights of the defence is a fundamental principle of Community law (Case C‑49/88 Al-Jubail Fertiliser and Saudi Arabian Fertiliser v Council [1991] ECR I‑3187, paragraph 15; Joined Cases T‑159/94 and T‑160/94 Ajinomoto and NutraSweet v Council [1997] ECR II‑2461, paragraph 81; and Case T‑147/97 Champion Stationery and Others v Council [1998] ECR II‑4137, paragraph 55). 289 It is settled case-law that, in accordance with the principle of respect for the rights of the defence, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the injury suffered by the Community industry as a result (Al-Jubail Fertiliser and Saudi Arabian Fertiliser, cited in paragraph 288 above, paragraph 17; Ajinomoto and Nutrasweet, cited in paragraph 288 above, paragraph 83; Champion Stationery, cited in paragraph 288 above, paragraph 55; and Kundan, cited in paragraph 287 above, paragraph 132). 290 Those requirements are laid down in Article 20 of the basic regulation. Article 20(1) and (2) of the basic regulation places the Commission under an obligation to make a final disclosure, in particular to the exporter of the product which is the subject of the anti-dumping investigation, of the essential facts and considerations on the basis of which it intends to recommend to the Council that definitive measures be adopted. Article 20(4) of the basic regulation provides that final disclosure is to be given in writing. It is to be made as soon as possible and, normally, no later than one month prior to a definitive decision or the submission by the Commission of any proposal for final action pursuant to Article 9. Where the Commission is not in a position to disclose certain facts or considerations at that time, these are to be disclosed as soon as possible thereafter. Disclosure does not prejudice any subsequent decision which may be taken by the Commission or the Council but where such a decision is based on different facts and considerations, these are to be disclosed as soon as possible. 291 Under Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1, ‘the former basic regulation’), the adequacy of the information provided by the Community institutions had to be assessed in the light of how specific the request for information was (see to that effect, Ajinomoto and NutraSweet v Council, cited in paragraph 288 above, paragraph 93). 292 Moreover, the fact that final disclosure, which is intended to enable the parties involved effectively to defend their position, is incomplete renders the regulation imposing definitive anti-dumping duties unlawful only if, as a result of the omission, the parties were not in a position to defend their interests effectively (Champion Stationery, cited in paragraph 288 above, paragraphs 55, 73 and 81 to 84). 293 It must therefore be examined, in the light of those principles, whether the applicant’s rights of defence were infringed during the investigation procedure. 294 In the present case, on 21 September 2000 the Commission sent the applicant the document disclosing the facts and considerations on the basis of which it intended to recommend the imposition of definitive anti-dumping duties of 13.1% on imports of electronic weighing scales manufactured by the applicant. The deadline given to the applicant for the submission of its observations was set at 11 October 2000. By fax of 29 September 2000, the applicant requested additional information from the Commission. The Commission responded by two separate letters, dated 29 September 2000 (concerning the questions relating to dumping) and 4 October 2000 (concerning the questions relating to injury and causation). By fax of 4 October 2000, which preceded the Commission’s letter of the same day, the applicant requested an extension of the period granted to it for the submission of its observations. By fax of 5 October 2000, the Commission refused the request. By letter of 10 October 2000, the applicant submitted its observations on the dumping, injury and causation. On 11 October 2000, the Commission replied to some of the concerns related to dumping expressed in the letter of 10 October 2000. In particular, it this time agreed to accept the applicant’s arguments as to salesmen’s salaries and reduced the margin of dumping from 13.1 to 12.8%. Finally, on 23 October 2003, the Commission presented its remaining comments on the letter of 10 October 2000. 295 In order to assess whether the applicant was in a position to defend its interests effectively, it is necessary to examine the Commission’s responses to each of the questions in respect of which it is claimed that it failed to give an adequate answer. 296 By question 2, the applicant asked ‘in order to be able to comment on the comparability of normal value and export prices, … what exact allowances were made to the export prices and domestic prices of the Indonesian producer’. 297 In the disclosure document of 21 September 2000 (Annex A, point 2.c), the Commission provided the following explanation of the comparison: ‘The comparison between Normal value and Export price was made on an ex-factory basis and at the same level of trade (distributors/dealers). For this purpose, your company’s data as submitted in your questionnaire reply had been retained. Allowances, in the form of adjustments, had been accepted by the Commission as proposed by your company; an allowance of 1% on the invoiced price for the differences in the cost of credit granted for the sales under consideration, had been made in accordance with Article 2(10)(g) of the basic regulation.’ 298 In its letter of 29 September 2000, the Commission gave additional information on the technical features of the Indonesian models used. Moreover, the Commission explained that no upward adjustments had been made in order to take account of differences in physical characteristics and this applied to both domestic sales and to export sales of the reference model, namely the model TEC SL‑2200. It also stated that all sales of the TEC SL‑2200 model were invoiced on an ex-factory basis. In its letter of 11 October 2000, in response to the letter of 10 October 2000, in which the applicant claimed that the Commission had failed to take account of the differences in physical characteristics between the model used to determine the normal value and the various models exported by the applicant, the Commission explained the following: ‘It should be noted, as following from [the applicant’s] transaction-by-transaction listing, any alleged differences in market value possibly requiring an adjustment in normal value between a [set of electronic weighing scales] having [an] LCD or a fluorescent-display is not warranted. We note that there are even sales of the same model with fluorescent display being sold at lower prices than without such a feature. Your claim is therefore rejected.’ 299 It went on to state the following in point 2 of that letter: ‘Furthermore, we recall, as already outlined in our letter of 29 September 2000, that no upward adjustments for differences in physical characteristics in the normal value had so far been made for technical features such as battery operation, direct PLU-keys, fold-up display etc., existing in [the applicant’s] exported models, but non-existing in TEC’s SL 2200. Considering these existing differences, higher dumping would be found.’ 300 Finally, in point 3 of the same letter, it also explained that, if it had adopted the approach suggested by the applicant when calculating the margin of dumping, it would have found that there was a higher level of dumping than that which it calculated in accordance with its own approach. 301 In the present case, the applicant insisted that account be taken of the differences in the cost of credit granted for the sales under consideration. As is clear from point 2.c of Annex A to the disclosure document of 21 September 2000, that factor was accepted. According to the disclosure document, the applicant put questions as regards the physical characteristics of the products. As was shown in the preceding paragraph, the Commission adequately explained why it did not make any adjustment for differences in physical characteristics. 302 Consequently, it must be held that the applicant was in a position to know which models the Commission had used in order to determine the normal value. It was also adequately informed of the reason why no adjustment was made for differences in physical characteristics. The Commission chose not to make an upward adjustment, which would have given rise to a greater margin of dumping. The applicant likewise knew that the prices had been compared at the same level of trade. Moreover, the applicant did not request any other adjustments. Accordingly, with respect to question 2 in its fax of 29 September 2000, the applicant was able to defend its interests effectively. 303 Questions 3 and 4 relate to an allowance for salesmen’s salaries which the Commission initially deducted from the export price charged by the applicant and which had the effect of reducing the export price and, thus, of increasing the margin of dumping. 304 It is clear from the letters of 29 September and of 11 October 2000 that the Commission did not deduct the allowance for salesmen’s salaries when it made its final calculation of the margin of dumping. In the letter of 11 October 2000, it reduced the margin of dumping from 13.1 to 12.8%. It therefore took a decision which was more favourable to the applicant and accepted fully its arguments on that subject. It is therefore unnecessary to examine whether the Commission properly answered the applicant’s questions 3 and 4. 305 In question 6, the applicant set out the following considerations: ‘The same letter of 14 April 2000 addressed to the Commission by JKM Consulting states: “As agreed at that meeting Bizerba and Avery Berkel would complete their Company specific responses in Confidential and Non-confidential forms, and that I would then forward same to you at the Commission.” [The applicant] would like to request disclosure of what precise information [was] needed at that time to be completed by Bizerba and Avery Berkel in their Company specific responses.’ 306 In its letter of 4 October 2000, the Commission replied as follows: ‘The Commission services discussed the attached injury indicators with the Community industry. The Community industry then made submissions, copies of which you have taken from the non-confidential file.’ 307 A letter from Bizerba, dated 10 April 2000 and received on 14 April 2000, which contains its comments on the matter of injury is included in the documents attached by the applicant as annexes to its application. That letter contains additional information supplied by Bizerba, to which JKM Consulting’s letter of 14 April 2000 refers. As regards the information supplied by Avery Berkel, that company’s letter is not among the documents attached as annexes to the application although it is clear from the file that the applicant was nevertheless aware of it. That document, which the Council produced as an annex to its rejoinder, was made available in the non-confidential file, of which the applicant made a copy. The Council has submitted as an annex to its rejoinder the two protocols confirming that the applicant’s legal representative inspected the non-confidential file on 14 September and 1 December 2000. Point 12 of the protocol of 14 September 2000 shows that the applicant’s legal representative made copies of Avery Berkel’s letter of 14 April 2000, which was received on 17 April 2000. Accordingly, the applicant’s claim that ‘the non-confidential file [did] not contain any submission by Bizerba and Avery Berkel after this letter of 14 April 2000 which completes “their company specific responses”’ and that ‘there is only a submission by Bizerba dated 10 April 2000 but no submission by Avery Berkel’ is untrue. Both Bizerba and Avery Berkel sent letters to the Commission after the meeting at the beginning of April 2000 in order to supplement their responses. As shown above, the applicant was aware of those two letters. 308 The applicant was therefore aware of all the non-confidential summaries of all the observations made by the Community industry. It was thus in a position effectively to defend its interests in connection with question 6 in its fax of 29 September 2000. 309 By question 10, the applicant asked the Commission whether it had examined the extent to which the high rate of exchange of pounds sterling to euros had affected Avery Berkel’s competitiveness with regard to its sales in the euro zone. 310 In its letter of 4 October 2000, the Commission responded as follows: ‘A detailed breakdown of injury data, showing euro zone and non euro zone figures, was not possible for the reasons given in the answer to question 9 above. … [The requested evolution of data [was] not available, since Table 4.2.2 was established from the transaction by transaction lists provided by the cooperating Community producers. It is normal practice for the Commission services to only request transaction by transaction lists for the investigation period.] However, from the information available, injury is evident in respect of sales by the cooperating producers to customers both inside and outside the euro zone.’ 311 The Commission thus explained that it did not have figures on injury which were broken down for the euro zone and for outside that zone. Moreover, it explained that it had found that there was injury to the cooperating producers (including Avery Berkel) with regard to sales to customers both in the euro zone and outside the euro zone. It therefore explained to the applicant the nature of the examination carried out by it. 312 The Commission replied properly to the applicant’s question and provided it with all the information which it required in order to be able to defend its interests effectively. However, as the Council argues, the question whether the Commission properly took account of that factor has no bearing on the issue of observance of the applicant’s rights of defence. 313 By question 11, the applicant asked ‘how … the Commission [was] able to establish clear dividing lines between the low, mid and high-range [electronic weighing scales] as used in its injury analysis’, given that ‘in the disclosure document at paragraph 2.1, it is stated that: “the investigation has shown that between the three segments there are no clear dividing lines, models in neighbouring segments often being interchangeable”’. 314 In its letter of 4 October 2000, the Commission gave the following reply to that question: ‘In the current investigation the product concerned is the same as used in previous and ongoing investigations. All models used for comparison purposes in the current investigation were defined by the cooperating company concerned (whether exporting producer or Community producer) and these were verified as necessary.’ 315 The Commission thus explained how it had divided the product into the low, mid and high-range segments. Consequently, the Commission’s response sufficed to enable the applicant to defend its interests effectively. 316 Moreover, as the Commission rightly submits, the distinction between low-range electronic weighing scales and other electronic weighing scales was drawn for illustration purposes only and the injury analysis covered the entire product range (see paragraphs 127 to 131 above). 317 By question 12, the applicant submitted observations on the magnitude of the dumping: ‘In the disclosure document at paragraph 4.4.1, it is stated that “the examination included all factors specifically listed in Article 3(5) of the basic regulation”. However, there appears to be no analysis of the magnitude of the actual margin of dumping which is listed in Article 3(5) [of that regulation]. Was this factor considered irrelevant in the course of the investigation? In view of the very significant level of undercutting margins established by the Commission which are much higher than the dumping margins established for the cooperating producers, how did the Commission [find] that it [was] the effects of dumping which caused the alleged injury? Did the Commission consider that the imports if made at non-dumped price levels would cause exactly the same alleged injury, because after elimination of the alleged dumping the price undercutting would still remain very substantial and nearly unchanged for most cooperating producers?’ 318 The Commission gave the following answer in its letter of 4 October 2000: ‘Your question is very hypothetical because you ask the Commission services to imagine a situation whereby sales of the exporting producers were not made at dumped prices. This is clearly not the case in this investigation. However, the Commission services examined all the relevant factors which may have had an impact on the injury suffered by the Community industry. In the “Causation” section of the disclosure document the causal link between the dumped imports from the countries concerned and the injury suffered by the Community industry was confirmed.’ 319 The Court finds that the Commission responded properly to the applicant’s question 12. 320 For the reasons set out above, the first part of the fourth plea must be rejected. 2. Second part: infringement of Article 20(5) of the basic regulation a) Arguments of the parties 321 The applicant submits that the Community institutions infringed Article 20(5) of the basic regulation by failing to grant it the minimum period of 10 days in which to prepare its observations on the disclosure document. The Commission’s final response to the request for additional information was sent on 4 October 2000 and, since the deadline imposed on the applicant for the submission of its observations had been fixed at 11 October 2000, the applicant was not allowed the period prescribed by Article 20(5). 322 The applicant claims, first, that the Council has failed to explain why the applicant is wrong to argue that that period ought to have been calculated from the date of receipt of the clarification. Secondly, the applicant rejects the Council’s interpretation that the final additional disclosure must be regarded as clarification and that there is no need to grant the parties a compulsory minimum period within which to make their representations. According to the applicant, that interpretation attributes little importance to the rights of defence in anti-dumping procedures. Thirdly, the applicant argues that it is sufficient to show that the mandatory time-limit provided for in the basic regulation was not observed. Finally, the applicant argues that, since final disclosure on the injury issues was made on 4 October 2000 and as there were public holidays in China, it was unable to submit its observations until 7 October 2000 and, because 7 and 8 October were a weekend, it in fact had only one day in which to prepare the observations in question. It wished, in particular, to verify the Commission’s assertion that there was no physical difference between the models sold in the euro zone and those sold outside it and that there were comparable models, and also to verify the consumption figures supplied in an annex to the letter of 4 October 2000 and the evidence relating to exports of products other than electronic weighing scales but falling under the same Eurostat code. It argues that, in anti-dumping procedures, it is essential that an absolute minimum of rights of the defence be guaranteed, including a period of at least 10 days for preparation by the parties of the defence of their interests. 323 The Council rejects the applicant’s line of argument and submits, first, that final disclosure was made by letter of 21 September 2000 and that the time-limit was fixed at 11 October 2000. Thus, according to the Council, a period of more than 10 days was granted. 324 Secondly, the Council states that, even if the applicant’s interpretation as regards the commencement of the period is correct, the fact that it did not have 10 days within which to prepare its representations cannot lead to annulment of the contested regulation. The Council argues that the applicant must establish that the failure to give it 10 days within which to prepare its observations on the clarification actually prevented it from defending its interests effectively. The Council argues that the letter of 21 September 2000 contained all the information needed by the applicant in order to defend its interests effectively. 325 Moreover, the Council contends that new factual allegations, namely that the applicant was unable to obtain evidence relating to the physical differences between the models sold in the euro zone and those sold outside it and evidence relating to the consumption figures, were not submitted until the stage of the reply and that they are therefore inadmissible. In any event, they are unfounded. b) Findings of the Court 326 Article 20(5) of the basic regulation provides that ‘representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter’. 327 In the present case, the Commission sent the disclosure document by letter of 21 September 2000. The deadline for making representations was fixed at 11 October 2000 and the period thus exceeded 10 days. By fax of 29 September 2000, the applicant requested additional information from the Commission. The Commission replied by two different letters, dated 29 September and 4 October 2000. By fax of 4 October 2000, the applicant sought an extension of the period set for the submission of its comments. The Commission refused the request by fax of 5 October 2000. By letter of 10 October 2000, the applicant submitted its comments on the information it had received from the Commission. 328 The applicant’s main argument is that it ought to have been given a period of 10 days from the Commission’s letter of 4 October 2000. The Council, however, takes the view that the period must begin on the date of disclosure of the final information, namely 21 September 2000. 329 Before it is examined whether the Council is right to claim that the letter of 21 September 2000 was in itself final disclosure and that the subsequent letters were mere clarifications, it is appropriate, first, to consider what the consequences would be in the present case if it were to be held that the letters of 29 September and 4 October 2000 also constituted final disclosure. 330 It is clear from the case-law that failure to set out certain factors in the disclosure document is not a breach of the applicant’s rights of defence where it has been established that it became aware of that evidence on another occasion, at a time when it was still possible for them effectively to make known their point of view in that respect before the Commission adopted its proposal for the adoption of the contested regulation (see, to that effect, Champion Stationery, cited in paragraph 288 above, paragraph 83). 331 Even if the applicant ought to have been given 10 days within which to lodge any representations with respect to the information which was not contained in the disclosure document sent to it on 21 September 2000 and even if that period was not observed, that fact cannot, in itself, lead to annulment of the contested regulation. It is also necessary to establish whether the Community institutions’ failure to grant the applicant the period prescribed by Article 20(5) of the basic regulation within which to submit any comments on the abovementioned additional information was actually capable of affecting its rights of defence in the procedure in question. 332 In the comments made by it in response to the disclosure document sent to it by the Commission on 21 September 2000, the applicant challenged a number of points, including those examined above in regard to which it disputed the Commission’s replies. The Commission’s letters of 29 September and 4 October 2000 were replies to the questions put by the applicant in its fax of 29 September 2000. However, as was shown in paragraphs 295 to 320 above, there was no infringement of the applicant’s rights of defence with regard to those questions. Moreover, the applicant was able to make its representations, on both the disclosure document and the Commission’s additional replies, in its letter of 10 October 2000. 333 The applicant submits, in particular, that it was unable, in the short time available to it after receipt of the Commission’s letter of 4 October 2000 providing additional information on injury, to obtain evidence that products other than electronic weighing scales but falling under heading CN 8423 8150 were exported from China and the other countries concerned. 334 That argument should not be upheld. On reading the disclosure document of 21 September 2000, the applicant became aware that the Commission had taken the view that all the exports recorded under that CN code were electronic weighing scales. Accordingly, this was not a new ‘final disclosure’. 335 As regards the applicant’s argument that it did not have time to verify the claim made by the Commission on 4 October 2000 that there was no physical difference between the models sold in the euro zone and those sold outside that zone and that there were comparable models, it should be pointed out that, in Table 4.2.2 of the disclosure document of 21 September 2000, the Commission set out (as indexed figures) the average prices for each segment in the euro zone and outside that zone, in order to support its reasoning concerning the impact of the introduction of the euro. In point 8 of its fax of 29 September 2000, the applicant stated that ‘with regard to Table 4.2.2, [the applicant] would like to request disclosure of whether there is any physical difference between the models sold by the Community industry in the euro zone and the non-euro zone area on the basis of which this price comparison was established’. The Commission replied in its letter of 4 October 2000, stating that ‘comparable models were used in table 4.2.2 and, therefore, there was no need to make adjustments for differences in physical characteristics’. In its letter of 10 October 2000, the applicant merely stated that ‘further, the high price differences between the euro and non-euro zone sales by the EC complainant companies as documented by the Commission clearly demonstrate anti-competitive conduct by the complainants and the prevention of parallel imports within the single market’. 336 Thus, following the Commission’s reply in its letter of 4 October 2000, the applicant did not even attempt to point out that its concerns had related to the existence of physical differences between the models sold in the euro zone and those sold outside it and to the comparability of those models. It must therefore be held that the rights of the defence were not infringed. 337 As regards the figures on consumption, which were contained in the April 2000 document and were sent to the applicant in the letter of 4 October 2000, it is sufficient to state that they were preliminary figures and that only the figures in the disclosure document of 21 September 2000 were relevant. Accordingly, the argument is irrelevant. 338 In its letter of 10 October 2000 the applicant was therefore able to express its point of view on the issues on which it disagreed with the Commission and to submit all the arguments which it subsequently put forward before the Court. 339 Accordingly, the applicant cannot claim that its rights of defence were infringed during the investigation procedure. 340 The applicant is likewise wrong to rely on Article 20(3) of the basic regulation, which states that ‘where a provisional duty has not been applied, parties shall be provided with an opportunity to request final disclosure within time-limits set by the Commission’. The time-limit fixed in the letter of 21 September 2000 applied to the observations to be submitted and was not a time-limit for requests for final disclosure. 341 The second part of the fourth plea must therefore be rejected. 3. The third part: infringement of Article 6(9) of the basic regulation and of Article 253 EC a) Arguments of the parties 342 The applicant submits that the Council infringed Article 6(9) of the basic regulation by failing to conclude the investigation within one year. Moreover, the failure to justify the fact that that time-limit was exceeded in a sector which had already been the subject of several previous procedures is an infringement of Article 253 EC. The applicant relies on the case-law of the Court of First Instance (NTN Corporation and Koyo Seiko, cited in paragraph 167 above, paragraphs 119 to 125, and Case T‑164/94 Ferchimex v Council [1995] ECR II‑2681, paragraph 166). 343 The applicant submits that the period of one year is a general rule. If it is not possible to observe that time-limit, the investigation must be concluded within 15 months. That obligation relates, in particular, to cases in which it has been demonstrated that it is impossible to observe the time-limit of one year. 344 The Council rejects the applicant’s claim and contends that its interpretation contradicts the clear wording of Article 6(9) of the basic regulation. The institutions are bound by an express obligation to conclude investigations within 15 months. b) Findings of the Court 345 First, as regards the case-law of the Court relied on by the applicant, according to which anti-dumping investigations may not continue beyond a reasonable period to be assessed in the light of the specific circumstances of each case (Ferchimex, cited in paragraph 342 above, paragraph 166), it should be pointed out that that case-law concerns Article 7(9)(a) of the former basic regulation. 346 Article 6(9) of the basic regulation does not, however, correspond to Article 7(9)(a) of the former basic regulation, which was worded as follows: ‘An investigation shall be concluded either by its termination or by definitive action. Conclusion should normally take place within one year of the initiation of the proceeding.’ 347 Article 6(9) of the basic regulation, which is applicable to the present case, states: ‘For proceedings initiated pursuant to Article 5(9) [of that regulation], an investigation shall, whenever possible, be concluded within one year. In any event, such investigations shall in all cases be concluded within 15 months of initiation, in accordance with the findings made pursuant to Article 8 for undertakings or the findings made pursuant to Article 9 for definitive action.’ 348 Thus, unlike the earlier provision, Article 6(9) of the basic regulation lays down a guideline period of one year and a compulsory period of 15 months. The fact that provision is made for these two periods means that, if the Community institutions have failed to conclude the investigation within the guideline period of one year, it is sufficient for observance of the procedural rules laid down in the basic regulation that they conclude it within the compulsory period of 15 months and there is no need to examine whether a duration of more than the guideline period but less than the compulsory period is reasonable in the light of the facts of the case. Accordingly, it must be held that the case-law relied on by the applicant is inapplicable in cases in which the compulsory period of 15 months has been observed. 349 Secondly, in the present case, the procedure was initiated on 16 September 1999 by notice of initiation published in the Official Journal on the same day and concluded on 27 November 2000 by adoption by the Council of the contested regulation. Therefore, the investigation was not concluded within the guideline period of one year. However, it is clear that it was concluded well before expiry of the compulsory period of 15 months. Accordingly, it cannot be complained that the Community institutions infringed Article 6(9) of the basic regulation. 350 Thirdly, the Community institutions were therefore under no obligation to state why they had exceeded the guideline period of one year. Accordingly, there was likewise no infringement of Article 253 EC by the Community institutions. 351 Consequently, the third part of the fourth plea must likewise be rejected. 352 It follows from all the above that the action must be dismissed in its entirety. Costs 353 Under 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 other party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the defendant, in accordance with the form of order sought by it. 354 The Commission, which intervened in the proceedings, must be ordered to bear its own costs pursuant to the first subparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders the applicant to bear its own costs and to pay those incurred by the defendant; 3. Orders the intervener to bear its own costs. Tiili Pirrung Mengozzi Meij Vilaras Delivered in open court in Luxembourg on 28 October 2004. H. Jung V. Tiili Registrar President Table of contents Legal background Facts Procedure and forms of order sought Substance A – The first plea: manifest error of assessment in the application of Article 2(7) of the basic regulation 1. Introduction 2. Scheme of Article 2(7) of the basic regulation a) Arguments of the parties b) Findings of the Court 3. The first criterion laid down in Article 2(7)(c) of the basic regulation a) Charging of uniform prices Arguments of the parties Findings of the Court b) Sales at a loss Arguments of the parties Findings of the Court c) The ratio between sales on the Chinese domestic market and exports Arguments of the parties Findings of the Court d) Conclusion as to the first criterion laid down in Article 2(7)(c) of the basic regulation B – The second plea: infringement of Article 3(2), (3), (5) and (8) of the basic regulation and manifest error of assessment in the determination of injury 1. Preliminary observations 2. Sixth part: infringement of Article 3(2) and (8) of the basic regulation relating to the assessment of the effect of the dumped imports by reference to the Community production of only part of the like-product range a) Arguments of the parties b) Findings of the Court 3. First part: infringement of Article 3(5) of the basic regulation a) Arguments of the parties b) Findings of the Court 4. Second part: consideration of non-dumped imports in the evaluation determining injury a) Arguments of the parties b) Findings of the Court 5. Third part: the finding that the Community industry suffered material injury a) Difference between the preliminary and definitive figures Arguments of the parties Findings of the Court b) Evaluation of certain injury indicators Arguments of the parties Findings of the Court – Sales price of the like product – Profitability and the effect of the introduction of the euro c) Material injury and assessment of the facts Arguments of the parties Findings of the Court d) Beginning and peak of the effect produced by the introduction of the Euro Arguments of the parties Findings of the Court 6. Fourth part: manifest error by the Community institutions when assessing the magnitude of the actual margin of dumping a) Arguments of the parties b) Findings of the Court 7. Fifth part: infringement of Article 3(2) and (3) of the basic regulation in taking account of Eurostat figures a) Arguments of the parties b) Findings of the Court C – The third plea: infringement of Article 3(6) of the basic regulation 1. Introduction 2. First part: profitability a) Arguments of the parties b) Findings of the Court 3. Second part: the trend in sales prices a) Arguments of the parties b) Findings of the Court 4. Third part: calculation of the undercutting margin a) Arguments of the parties b) Findings of the Court 5. Fourth part: the market share a) Arguments of the parties b) Findings of the Court D – The fourth plea: infringement of the procedural rules laid down in the basic regulation 1. The first part: infringement of Article 20(4) of the basic regulation a) Arguments of the parties b) Findings of the Court 2. Second part: infringement of Article 20(5) of the basic regulation a) Arguments of the parties b) Findings of the Court 3. The third part: infringement of Article 6(9) of the basic regulation and of Article 253 EC a) Arguments of the parties b) Findings of the Court Costs * Language of the case: English.