Judgment — ECLI:EU:T:2016:340
Date: 2016-06-09
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible

summary of the pleas in law on which the application is based. According to settled case-law, those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see, to that effect, order of 11 January 2013 in Charron Inox and Almet v Council and Commission, T‑445/11 and T‑88/12, EU:T:2013:4, paragraph 57). 255 It is in the light of those considerations that the applicants’ arguments under the four parts of the tenth plea in law should be examined. The first part of the tenth plea in law, alleging that the definitive disclosure document was incomplete, infringement of Article 20(2) and (4) of the basic regulation and errors of reasoning in the contested regulation 256 The applicants claim that the definitive disclosure document did not contain sufficient information on various elements concerning the dumping margin and injury calculations, certain adjustments, the European Union industry and the amendment of the period of validity of the measures imposed to five years. According to the applicants, it follows that there was an infringement of Article 20(2) and (4) of the basic regulation and that the contested regulation is therefore inadequately reasoned. In this connection, the applicants raise seven separate complaints. 257 The Council contests those arguments. 258 At the outset, it should be observed that, according to the heading of the tenth plea in law in the application, the applicants claim ‘multiple violations of the rights of defence of the applicants and their members’. However, as regards the first part of the present plea in law, it is clear from paragraph 152 of the application that it concerns ‘the definitive disclosure [document received by the applicants]’. Furthermore, the applicants do not in any way state in the application that the present part concerns the disclosure of the definitive disclosure document to another party to the administrative proceeding. It follows that the present part must be interpreted as relating to alleged infringements of the procedural rights of the applicants as interested parties during the anti-dumping proceeding. 259 It must be noted that Article 20(2) of the basic regulation provides, inter alia, that complainants, importers and exporters and their representative associations, and representatives of the exporting country may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures. Under Article 20(4) of that regulation, final disclosure is to be given in writing and, due regard being had to the protection of confidential information, 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. It also provides that, 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. 260 By the first complaint, the applicants submit that the definitive disclosure document provided no information regarding the countrywide dumping and injury margin calculations other than some general statements. That made it impossible for the applicants ‘and their members’ to provide any comments whatsoever on whether the calculations were free from clerical errors, whether the methodology used was free from methodological errors, whether domestic sale prices had been brought back to the ex-factory level and whether the necessary adjustments had been made. 261 First, it should be stated, as regards the injury margin, that the first complaint is inconsistent with the second complaint (see paragraphs 268 to 270 below), according to which ‘an explanatory note and excel sheets were provided [by the Commission] in support of the injury margin calculations’. Therefore, the first complaint must be rejected in so far as it concerns information relating to the injury margin. 262 Second, as regards the dumping margin, it must be observed that the applicants have not identified in their written pleadings the ‘general statements’ relating to the dumping margin calculation in the definitive disclosure document to which they refer. The applicants have not explained the reasons why they consider those statements to be inadequate and they have not identified the information which — in their view — they needed. In the absence of such information, in accordance with the case-law cited in paragraph 252 above and that cited in paragraph 254 above, the first complaint must be rejected as inadmissible. 263 In any event, as regards the dumping margin, it should be pointed out that, according to the considerations concerning dumping in recitals 60 to 74 of the definitive disclosure document, which correspond, in essence, to recitals 60 to 62, 64 to 68, 72, 74 and 75 and to parts of recitals 70, 73 and 76 of the contested regulation, the dumping margin was determined in the present case on the basis of data provided by unrelated traders/blenders, namely their domestic sales prices for the normal value and their prices to customers in the European Union for the export price. Consequently, that information constituted generally, as the Council correctly observes, confidential data of the traders/blenders that could not be disclosed, in the absence of special circumstances, to interested parties such as the applicants who represented the interests of their suppliers. 264 Similarly, it must be observed that the applicants have not established how they would have been better able to ensure their defence in the absence of that irregularity, as referred to in the case-law cited in paragraph 252 above. They have not put forward any argument as to an error of fact or in law on the part of the institutions, but state merely that it was impossible for them to provide comments on hypothetical situations, such as whether the calculations were free from clerical errors, whether the methodology used was free from methodological errors and whether the necessary adjustments had been made. Furthermore, it should be noted that the applicants have in no way explained how they would have been in a position to provide relevant comments on the non-confidential information relating to the prices of the traders/blenders in question, nor have they explained the adjustments that — in their view — might have been necessary. 265 As regards the claim that it was impossible for them to provide comments on ‘whether domestic sale prices ha[d] been brought back to the ex-factory level’, the applicants have not specified the calculation to which they refer. Consequently, that argument has not been raised in a coherent and intelligible manner as referred to in the case-law cited in paragraph 254 above and must be rejected as inadmissible. In any event, it should be noted that recital 94 of the definitive disclosure document and recital 97 of the contested regulation state that the weighted average sales prices per product type of the sampled European Union producers charged to unrelated customers on the European Union market were indeed adjusted to an ‘ex-works’ level. 266 Third, in so far as the applicants claim that ‘their members’ were prevented from providing certain comments, suffice it to observe that the applicants have not explained in their written pleadings which of their members are concerned by their argument. Consequently, the applicants’ written pleadings do not indicate in an intelligible manner, as referred to in the case-law cited in paragraph 254 above, to which of the members they are referring and the first complaint should therefore be rejected as inadmissible in so far as it concerns an infringement of the procedural rights of the applicants’ members during the anti-dumping proceeding. 267 It follows that the first complaint must be rejected in its entirety. 268 By the second complaint, the applicants submit that, as regards the two traders/blenders that cooperated in the investigation, the Commission did not provide an explanatory note on the method used to calculate the dumping margin, nor did it provide an electronic version of the ‘excel’ sheets supporting the dumping margin calculation, which ‘render[ed] the understanding of the end-result even more difficult’. 269 It should be noted that the applicants have not explained in what way, in the absence of the alleged irregularity, the outcome of the anti-dumping proceeding might have been different, contrary to what is required by the case-law cited in paragraph 252 above. 270 In any event and in any case, first, it must be noted that the Council contends that the two traders/blenders that cooperated in the investigation did indeed receive the dumping margin calculation and an additional disclosure document following their comments on the definitive disclosure document. The Council maintains that it could not add those documents to the non-confidential file because they contained information that could not be disclosed to the applicants for reasons of confidentiality. The applicants do not contest that argument. Second, as regards the alleged absence of an explanation concerning the method used to calculate the dumping margin, the applicants have not indicated in what respect they consider the explanations given in recitals 72 and 73 of the definitive disclosure document, as reproduced in recitals 74 and 75 of the contested regulation, to be inadequate. Third, as regards the absence of ‘excel’ sheets, it should be stated that the institutions are in no way required to provide interested parties with an ‘electronic version of the “excel” sheets supporting the dumping margin calculation’. 271 It follows that the second complaint must be rejected. 272 By the third complaint, the applicants submit that the Commission failed to address, in the definitive disclosure document, the arguments put forward by the applicants and their members in their comments on the provisional disclosure document, in particular, ‘on specific reasons, based on which the Commission found the sampled companies not to have an export price, despite the evidence provided by a number of the applicants’ members’. 273 In the first place, as regards the applicants’ arguments in their observations provided in response to the provisional disclosure document concerning the sampled companies not having an export price, it must be pointed out, first, that final disclosure, within the meaning of Article 20(2) of the basic regulation, concerns the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures. It follows that no obligation arises under that provision on the Commission to address, in the definitive disclosure document, the arguments put forward by an interested party in its observations on the provisional disclosure document, if the Commission does not consider that those arguments concern the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures. 274 Second, in the present case, it must be noted that the Commission observed, in recitals 62 and 68 of the definitive disclosure document, which correspond in essence to recitals 63 and 69 of the contested regulation, that the sampled US producers had not exported the product concerned to the European Union, that it was not possible to trace all purchases individually and compare the normal values with the relevant export prices, that it was not possible to identify the producer at the moment of the export to the European Union and that those producers were not aware of the level of the export price to the European Union. On that basis, it rejected the argument of some US producers that the sales price charged by the US producers to unrelated traders/blenders in that country could be used as the export price. The applicants have not explained in what respect those findings are inadequate. 275 In the second place, as regards the arguments that the Commission failed to address — in the definitive disclosure document — the arguments put forward by the applicants and their members in their observations on the provisional disclosure document, and that it did not take into account the ‘evidence provided by a number of the applicants’ members’, it should be noted that the applicants have not identified the arguments that it is claimed the Commission failed to address in the definitive disclosure document, nor by whom, from amongst their members, those arguments were provided, nor what evidence it is claimed the Commission failed to take into account. Therefore, those arguments do not satisfy the conditions laid down in Article 44(1)(d) of the Rules of Procedure of 2 May 1991, which requires that the basic legal and factual particulars relied on in the action be indicated coherently and intelligibly in the application itself (see paragraph 254 above) and those arguments must, consequently, be rejected as inadmissible. 276 Accordingly, the third complaint must be rejected in its entirety. 277 By the fourth complaint, the applicants submit that the definitive disclosure document provided no explanation for not adjusting the volume of US imports by a fuel ratio, whereas that adjustment had been made for imports from all other countries. 278 In this connection, it should be pointed out that the applicants have not explained, in the present complaint, how, in the absence of the alleged irregularity, the outcome of the anti-dumping proceeding might have been different, contrary to what is required by the case-law cited in paragraph 252 above. In any event, it is clear from the third plea in law that the explanation given in the definitive disclosure document in this connection enabled the applicants to challenge the failure to make an analogous adjustment in the case of imports from the United States. It follows that the fourth complaint must also be rejected as unfounded. 279 By the fifth complaint, the applicants submit that the definitive disclosure document provided no details on why the ‘ab initio’ exclusion of producers of E85 blends and similar blends from the European Union industry had not had an impact on the material injury determination. They claim that there is nothing in the file to support the Commission’s statement, in its response to the applicants’ comments on the definitive disclosure document, that the production of such blends ‘[was] very limited’. 280 In this connection, the Council has explained in the defence that those allegations are incorrect because the Commission did not exclude E85 blends ‘ab initio’. It states that, according to the information available, there were only a few producers of E85 blends in the European Union and their production appeared to be very limited; the non-confidential questionnaires of two European Union producers indicated that they produced E85 in minor quantities and those minor quantities found were therefore used in the calculations. 281 First, it should be noted that the applicants have not substantiated the expression ‘similar blends’. Consequently, the argument concerning the ‘similar blends’ has thus not been raised in a coherent and intelligible manner as referred to in the case-law cited in paragraph 254 above and must be rejected as inadmissible. 282 Second, the applicants have not contested the veracity of the considerations set out by the Council in the defence. Therefore, it follows from the Council’s explanations that the E85 blends were not excluded from the investigation ‘ab initio’ and that there was material in the administrative file to support the fact that the production of the blends in question in the European Union was ‘very limited’. Accordingly, the remainder of the fifth complaint must be rejected as unfounded. 283 By the sixth complaint, the applicants submit that, despite the request made by them to the Hearing Officer at the hearing before the Commission, the Council did not provide data relating to the raw material costs of European Union industry producers. They claim that having such data would have allowed them to demonstrate ‘with a larger degree of certainty’ that the alleged material injury was caused by increased raw material costs of the European Union industry. 284 In this connection, first of all, it should be noted that, at the hearing on 11 September 2012, the applicants requested that they be provided with ‘data on trends in the cost of production and raw materials’. According to the minutes of that hearing, the Hearing Officer invited the Commission’s investigation team to provide explanations in writing by 18 September 2012 at the latest. It must be pointed out that the applicants have in no way claimed in their written pleadings that the Hearing Officer’s request was not appropriately followed up. The applicants have likewise not established that they reiterated their request in the context of final disclosure under Article 20(2) of the basic regulation. 285 Next, it must be noted that the applicants have not provided any evidence indicating that they asked the Council to provide the data in question. 286 Lastly, the Council has explained that the material stating that most European Union industry producers hedged the risk of fluctuation in the prices of raw materials is confidential in nature and that it was therefore not possible to add it to the non-confidential file, a point that is not called in question by the applicants. 287 It follows that the applicants have not established that the institutions failed satisfactorily to respond, within the framework of the obligations arising under Article 20(2) and (4) of the basic regulation, to their requests for access to additional information concerning the raw material costs of the European Union industry. Therefore, the argument underpinning the sixth complaint cannot be accepted. 288 By the seventh complaint, the applicants submit that the additional disclosure document, in which the Commission proposed to amend the period of validity of the definitive anti-dumping measure proposed from three years to five years, was insufficiently reasoned, on the ground that it ‘simply stated the negative for 2 of the 3 reasons on the basis of which the Council initially proposed a 3-year period of validity’ and ‘did not deal with the third reason’. 289 It must be pointed out, as the Council correctly observes — without being contradicted by the applicants in that regard — that, under Article 11(2) of the basic regulation, the normal period of validity of anti-dumping measures is five years. Thus, the additional disclosure document envisaged reverting to the normal period. In this connection, it must be stated that the obligation to state reasons for anti-dumping measures does not require the institutions to explain why a position which they envisaged at a certain stage of the anti-dumping proceeding turned out to be unfounded (see, to that effect, judgment in Whirlpool Europe v Council, cited in paragraph 253 above, EU:T:2010:390, paragraph 116). 290 Moreover, the applicants have not explained the impact of the failure to examine, in the definitive disclosure document, the ‘third reason’ initially relied on by the Commission to justify a period of validity of only three years. 291 Therefore, the seventh complaint must be rejected as unfounded. 292 Given that the seven complaints raised by the applicants cannot be accepted, the applicants’ argument that the contested regulation is not ‘adequately reasoned’ because the definitive disclosure document was incomplete must also be rejected. Consequently, the first part of the tenth plea in law must be rejected as in part inadmissible and in part unfounded. The second part of the tenth plea in law, alleging that the additional disclosure document was communicated, in the first place, to the Member States and to the complainant and then to the applicants, in breach of the principles of sound administration and non-discrimination, of the rights of the defence and of Article 20(5) of the basic regulation 293 The applicants claim, in essence, that the Commission submitted the proposal to amend the period of validity of the measures from three years to five years to the representatives of the Member States in the Advisory Committee and to the complainant before that information was communicated to the applicants, in breach of the principles of non-discrimination and sound administration, and of the rights of the defence of the applicants and of ‘their members’. In addition, they submit that the fact that the Advisory Committee approved the amendment of the period of validity of the measures at a meeting that was held two days before the definitive disclosure document was communicated to the interested parties, and therefore before the applicants’ comments, infringed the obligation to take into consideration representations on the definitive disclosure document, laid down in Article 20(5) of the basic regulation. 294 The Council contests the applicants’ arguments. 295 It must be recalled that, under Article 20(5) of the basic regulation, ‘[r]epresentations 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’. 296 In the first place, as regards the alleged infringement of the rights of the defence, suffice it to state that the applicants have not explained how they or their members would have been better able to ensure their defence in the absence of the alleged irregularity. Therefore, that argument must be rejected in the light of the case-law cited in paragraph 252 above. 297 In the second place, as regards the argument that the complainant was informed of the amendment of the period of validity of the measures before that information was communicated to the other interested parties, the applicants rely on a press release issued on ePure’s website on 20 December 2012, in which ePure announced that the European Union had ‘gone a step ahead towards’ the imposition of anti-dumping measures for a period of five years in the present case as such a ‘decision’ had been ‘endorsed’ by a majority of Member States. 298 The Council denies that assertion and maintains in the defence that the Commission informed all interested parties, including the complainant, of the proposal to amend the period of validity of the measures at the same time, namely on 21 December 2012. It adds that it is not required to explain or defend the content of a press release issued by a third party. 299 In this connection, it should be observed that that press release is merely an indication, but it does not prove that the Council or the Commission actually informed the complainant before the applicants of the amendment of the duration of the measures, and that the applicants have not adduced any other evidence in support of their allegation. Consequently, that argument must be rejected on the ground that the applicants have not substantiated it. 300 In the third place, it is appropriate to examine the argument that the proposal to amend the period of validity of the measures was disclosed in advance to the representatives of the Member States in the Advisory Committee. 301 According to the applicants, ePure’s press release of 20 December 2012 refers to the vote in the Advisory Committee at a meeting held on 19 December 2012 and shows that the Commission submitted the proposal to increase the period of validity of the measures from three years to five years to the representative of the Member States in the Advisory Committee and to the complainant before that information was communicated to the applicants. The Council contests that argument and states in the defence that the Commission informed the Member States and the interested parties of the proposal to amend the period of validity of the measures at the same time, namely on 21 December 2012. 302 As regards, first, the alleged breach of the principle of non-discrimination by the EU institutions, it should be observed that for the EU institutions to be in breach of that principle, they must be shown to have treated like cases differently, thereby placing some operators at a disadvantage by comparison with others, without such differentiation being justified by the existence of substantial objective differences (judgment of 23 October 2003 in Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, T‑255/01, ECR, EU:T:2003:282, paragraph 60). 303 In this connection, suffice it to point out that, unlike the applicants, the representatives of the Member States in the Advisory Committee are not interested parties in the anti-dumping proceeding. It follows that the applicants and the Member States did not find themselves in comparable situations as referred to in the case-law. Therefore, the disclosure of information to the Member States is not governed by Article 20 of the basic regulation, but is made under Article 15(2) thereof in its original version, which is applicable in the present case, according to which the Commission is to provide the Member States, prior to the meeting of the Advisory Committee, with ‘all relevant information’. 304 As regards, second, the alleged breach of the principle of sound administration, it should be recalled that the Commission and the Council are required to respect the fundamental rights of the European Union during the administrative procedure, which include the right to sound administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which groups together a series of specific rights. However, the principle of sound administration does not, in itself, confer rights on individuals, except where it constitutes the expression of specific rights for the purposes of Article 41 of the Charter of Fundamental Rights (judgment of 4 October 2006 in Tillack v Commission, T‑193/04, ECR, EU:T:2006:292, paragraph 127). Yet the applicants have not in any way relied on such a specific right. 305 In any event, even if the applicants’ argument is construed as alleging that the duty of diligence has been infringed, it should be recalled that that duty requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, judgment of 12 December 2014 in Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, ECR (Extracts), EU:T:2014:1076, paragraph 46 and the case-law cited). In the present case, given that the applicants have not adduced any evidence that might show, to the requisite standard, that the Commission or the Council infringed that obligation, the argument relating to the breach of the principle of sound administration must be rejected as unfounded. 306 Therefore, the applicants’ argument concerning a breach of the principles of non-discrimination and sound administration must be rejected. 307 In the fourth place, the applicants’ argument that Article 20(5) of the basic regulation was infringed because the proposal to amend the period of validity of the measures was submitted to the Advisory Committee and ‘ratified’ by it before the interested parties had filed observations must be rejected also. Even if that provision creates, as the applicants claim, an obligation ‘on the institutions’ to take into consideration ‘comments on the definitive disclosure [document]’, suffice it to point out that the applicants have not explained in what way, in the absence of the alleged irregularity, the outcome of the anti-dumping proceeding might have been different, contrary to what is required by the case-law cited in paragraph 252 above. In any event, it must be recalled that, under Article 9(4) of the basic regulation in its original version, which is applicable in the present case, the Advisory Committee, which moreover is not an institution, is to be consulted before the Council imposes a definitive anti-dumping duty. Admittedly, Article 15(2) of the basic regulation in its original version states that the Commission is to provide the Member States with ‘all relevant information’ in advance. However, first, the applicants have not claimed that the Council failed to take their comments submitted on 2 January 2013 on the duration of the measures into consideration when adopting the contested regulation. Second, the applicants have likewise not claimed that their comments submitted on 2 January 2013 contained relevant information that the Commission ought to have communicated to the Member States, in accordance with the same paragraph. 308 The second part of the tenth plea in law must therefore be rejected. The third part of the tenth plea in law, alleging that access to the non-confidential file of the investigation was incomplete, in breach of the rights of the defence, Article 6(7) and Article 19(1) and (2) of the basic regulation 309 The applicants claim that the Commission refused to grant them access to certain information, certain evidence and certain documents despite several requests made by them in the course of the investigation. They claim that this was contrary to Article 6(7) and Article 19(1) and (2) of the basic regulation and infringed their rights of the defence. The applicants raise five complaints by which they submit that the Commission did not grant full access to the non-confidential file of the investigation. 310 The Council contests the applicants’ arguments. 311 Article 6(7) of the basic regulation provides as follows: ‘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 [European Union] or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and [which] 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.’ 312 Under Article 19(1) of the basic regulation, ‘[a]ny information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom he has acquired the information) or which is provided on a confidential basis by parties to an investigation, shall, if good cause is shown, be treated as such by the authorities’. 313 Article 19(5) of the basic regulation provides as follows: ‘The Council, the Commission and Member States, or the officials of any of these, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from the supplier. Exchanges of information between the Commission and Member States, or any information relating to consultations made pursuant to Article 15, or any internal documents prepared by the authorities of the [European Union] or its Member States, shall not be divulged except as specifically provided for in this Regulation.’ 314 Infringement of the right of access to the investigation file can result in the annulment of the contested regulation only if there is a chance, albeit slight, that disclosure of the documents in question might have caused the administrative procedure to have a different result if the undertaking concerned had been able to rely on them during that procedure (see, to that effect, judgment of 16 February 2012 in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, ECR, EU:C:2012:78, paragraph 174). 315 As regards the first complaint, the applicants submit that the Commission refused to grant access to or provide a non-confidential summary of the Eurostat (Statistical Office of the European Union) database and other national customs databases used to establish the volume and value of various imports. 316 It should be noted that, by the first complaint, the applicants have not explained in what way, in the absence of the alleged irregularity, the outcome of the anti-dumping proceeding might have been different, contrary to what is required by the case-law cited in paragraphs 252 and 314 above. The first complaint must therefore be rejected as unfounded. 317 By the second complaint, the applicants submit that the Commission refused to disclose an internal document containing the opinion of its Directorate General (DG) ‘Taxation and Customs Union’ relating to the definition of the product concerned. 318 First, it must be noted that, by the present complaint, the applicants have not explained in what way, in the absence of the alleged irregularity, the outcome of the anti-dumping proceeding might have been different, contrary to what is required by the case-law cited in paragraphs 252 and 314 above. Second, it is clear that, under Article 19(5) of the basic regulation, internal documents are not to be divulged, except if this is specifically provided for in that regulation. Consequently, the second complaint must be rejected as unfounded. 319 By the third complaint, the applicants submit that, with regard to the determination of the share of production of ethanol from sugar beet, the Commission relied on an email from the complainant that mentioned a figure of 12%, but did not provide any details on the source of the data used and the methodology applied in order to arrive at that estimate. The applicants submit that that made it impossible for them to demonstrate to the Commission that their ‘higher figures’ for sugar beet ethanol production were the ‘correct figures’. 320 It should be pointed out that, by that argument, the applicants have not explained in what way the outcome of the anti-dumping proceeding might have been different had the source and the method used for the calculation been disclosed, contrary to what is required by the case-law cited in paragraphs 252 and 314 above. 321 In any event, the Commission has explained that it was not permitted to disclose the information in question on the ground that it comprised confidential business information provided by the complainant. In this connection, first, the applicants have not explained in what respect the statement, in the part of the email in question quoted by them at page 434 of Annex A.10 to the application, that the percentage figure of 12% was provided by a commodity analyst, was not sufficient for the purpose of identifying the source of the data in question. Second, it is in no way clear from that quotation that that email contained a description of the method used for calculating the share of the market in question. 322 The third complaint must therefore be rejected as unfounded. 323 By the fourth complaint, the applicants submit that nothing in the non-confidential file supports the statement made in recital 141 of the contested regulation that most European Union industry producers hedged the risk of fluctuation in the prices of raw materials. 324 First, it should be noted that, by the fourth complaint, the applicants have not claimed any infringement of their right of access to the non-confidential file. Consequently, the present complaint is ineffective and must be rejected. 325 Second, and in any event, the Council has explained that, during the on-the-spot verifications, the European Union producers provided detailed explanations concerning the hedging of risks and that the information in question is confidential in nature and that it was therefore not possible to add it to the non-confidential file. Furthermore, the applicants have not contested the Council’s assertion that the practice of hedging the risk of price fluctuations is common in the sector in question and that it would be easy to verify this through publicly available information in the annual reports of European Union producers. Consequently, the fourth complaint must also be rejected as unfounded. 326 By the fifth complaint, the applicants submit that ePure’s observations relating to the amendment of the period of validity of the measures from three years to five years were not added to the non-confidential file in sufficient time for them to prepare their submissions in respect of that amendment by 2 January 2013. ePure’s observations were added to the non-confidential file only on 4 February 2013. 327 In this connection, it should be noted that the applicants have not explained in what way, in the absence of the alleged irregularity, the outcome of the anti-dumping proceeding might have been different, as is required by the case-law cited in paragraphs 252 and 314 above. 328 In any event, the Council has stated that, in the additional disclosure document of 21 December 2012, the Commission summarised ePure’s arguments concerning the period of validity and explained the reasons for reverting to the normal period of five years. As regards the complainant’s observations, it should be observed that the additional disclosure document contains, in essence, the same information as that in recital 173 of the contested regulation and therefore reproduced the basic legal and factual particulars on which the institutions wished to rely in the present case. By contrast, in the reply, the applicants merely deny the Council’s assertion, without specifying which of ePure’s observations were not adequately summarised in the additional disclosure document. 329 In the reply, the applicants submit moreover that the additional disclosure document was simply a negation of the arguments in support of the period of validity initially proposed by the Commission, without any real explanation. It must be held, pursuant to Article 44(1)(c) and Article 48(2) of the Rules of Procedure of 2 May 1991, that that new complaint is made out of time since it was raised in the reply, and it must be rejected as inadmissible (see, to that effect, order of 24 September 2009 in Alcon v OHIM, C‑481/08 P, EU:C:2009:579, paragraph 17, and judgment of 30 April 2015 in VTZ and Others v Council, T‑432/12, EU:T:2015:248, paragraph 158). Even if that new complaint had not been raised out of time, suffice it to state that, by that argument, the applicants have not claimed any infringement of their right of access to the non-confidential file of the investigation. It would therefore also be appropriate to reject it as ineffective. 330 It must therefore be concluded that the applicants were in a position to prepare their comments in respect of the amendment of the period of validity of the anti-dumping measures in sufficient time. Consequently, the fifth complaint and the new complaint referred to in the preceding paragraph must be rejected. 331 It follows that the third part of the tenth plea in law must be rejected. The fourth part of the tenth plea in law, alleging that the applicants were not granted sufficient time to submit their comments on the definitive disclosure document, in breach of Article 20(5) of the basic regulation and of the rights of the defence 332 The applicants submit that the Council did not grant them the legal minimum period of 10 days, laid down in Article 20(5) of the basic regulation, to submit their comments on the definitive disclosure document. In any event, the legal minimum period of 10 days was not a sufficient period — in their view — for submitting comments on a disclosure document as complex as that provided in the present case. 333 The Council contests the applicants’ arguments. 334 At the outset, it should be observed that, according to the heading of the fourth part of the tenth plea in law in the application, the Council did not provide sufficient time for ‘the applicants’ to submit their comments on the definitive disclosure document. However, in the application, the applicants claim that they ‘and their members’ were not given sufficient time to submit their comments. 335 In this connection, it must be noted that the applicants have not explained in their written pleadings which of their members received the definitive disclosure document. In so far as the applicants therefore wish, by the present part, to rely on an infringement of the procedural rights of ‘their members’, it must be pointed out that such an imprecise claim does not satisfy the conditions laid down in Article 44(1)(c) of the Rules of Procedure of 2 May 1991, which requires that the basic legal and factual particulars relied on in the action be indicated coherently and intelligibly in the application itself (see paragraph 254 above). Consequently, in so far as the applicants claim that their members were not granted sufficient time to submit their comments on the definitive disclosure document, the present part must be rejected as inadmissible. 336 As regards the argument that the Council did not grant the applicants sufficient time to submit their comments on the definitive disclosure document, it must be recalled that Article 20(5) of the basic regulation provides, in essence, that the institutions are required to take into consideration representations made by interested parties only if they are received within the period set by the Commission, which period may not be less than 10 days. 337 In the present case, the Commission sent the definitive disclosure document to the applicants on 6 December 2012, requesting their comments ‘within 10 days ..., i.e. by 17 December 2012 at noon’. The period of 10 days for submitting comments on that document provided for in Article 20(5) of the basic regulation ended on Sunday 16 December 2012. Under Article 3(4) of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ English Special Edition 1971 (II), p. 354), since the last day of the period was a Sunday, the period ended with the expiry of the last hour of the following working day, namely with the expiry of the last hour of 17 December 2012. However, the Commission called on interested parties to submit their comments on that document by midday on 17 December 2012, and not by midnight. Nevertheless, the parties submitted their comments within the period set by the Commission. By letter of 21 December 2012, the Commission sent the additional disclosure document relating to the amendment of the duration of the proposed measures. However, in that letter, the Commission requested that the parties provide their comments on the amendment proposed and on the definitive disclosure document of 6 December 2012 no later than 2 January 2013, close of business. 338 First, it must be noted that the applicants have not explained in their written pleadings how — in their view — as a result of the alleged irregularity the outcome of the administrative proceeding might have been different. In this connection, the Court of Justice has held that failure to comply with the 10-day period prescribed in Article 20(5) of the basic regulation can result in annulment of the contested regulation only where there is a possibility that, as a result of that irregularity, the outcome of the administrative procedure might have been different and thus in fact adversely affected the applicant’s rights of defence (see, to that effect, judgment in Foshan Shunde Yongjian Housewares & Hardware v Council, cited in paragraph 250 above, EU:C:2009:598, paragraph 81 and the case-law cited). 339 Second, as the Council correctly contends, the Commission granted the applicants, by its letter of 21 December 2012, an additional period within which to provide comments on the definitive disclosure document of 6 December 2012. It follows that the institutions did not infringe Article 20(5) of the basic regulation in any way. 340 As regards the argument that the period of 10 days was not sufficient for submitting comments on such a complex disclosure document and in view of the absence of a regulation imposing provisional duties containing a provisional calculation of the dumping margin, suffice it to recall, as stated in paragraph 337 above, that the applicants were given not only the legal minimum period, but the Commission subsequently granted them, on 21 December 2012, an additional period of 12 calendar days to provide comments on that document. The applicants have not claimed that that extended period was insufficient. 341 In addition, in the reply, the applicants claim that, as regards the additional disclosure document of 21 December 2012, there was another procedural irregularity on the part of the institutions on the ground that the anti-dumping Advisory Committee had already been consulted at the meeting of 19 December 2012 without being aware of an essential element, namely the views of the applicants and the US producers on the amended validity of the proposed measures. It must be held, pursuant to Article 44(1)(c) and Article 48(2) of the Rules of Procedure of 2 May 1991, that that new complaint is made out of time, since it was raised in the reply, and it must be rejected as inadmissible (see case-law cited in paragraph 329 above). 342 It follows that the fourth part of the tenth plea in law must also be rejected. 343 It follows from the foregoing that the tenth plea in law must be rejected in its entirety. 344 Therefore, since the second part of the first plea in law has been upheld, and that plea in law has been upheld in consequence, the contested regulation must be annulled in so far as it concerns Patriot Renewable Fuels, Plymouth Energy Company, POET and Platinum Ethanol, which are members of the applicants. The remainder of the present action must be dismissed as in part inadmissible and in part unfounded. Costs 345 Under Article 134(1) and (3) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. 346 In the present case, since the applicants and the Council have each been partially unsuccessful, they are each to bear their own costs. 347 In accordance with Article 138(1) and (3) of the Rules of Procedure, the Commission and ePure are each to bear their own costs. On those grounds, THE GENERAL COURT (Fifth Chamber), hereby: 1. Annuls Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America in so far as it concerns Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC; 2. Dismisses the action as to the remainder; 3. Orders Growth Energy and Renewable Fuels Association, the Council of the European Union, the European Commission and ePure, de Europese Producenten Unie van Hernieuwbare Ethanol to bear their own costs. Dittrich Schwarcz Tomljenović Delivered in open court in Luxembourg on 9 June 2016. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought 1. Application for joinder with Case T‑277/13 Marquis Energy v Council 2. Interventions 3. Measures of organisation of procedure and the oral part of the procedure 4. Applications for confidential treatment 5. Forms of order sought Law 1. Admissibility Whether associations such as the applicants have a right to bring proceedings The applicants’ standing to bring proceedings The applicants’ standing to bring proceedings in their own right The applicants’ standing to bring proceedings as representatives of their members – Whether the applicants are directly concerned as representatives of the sampled producers of bioethanol – Whether the applicants are individually concerned as representatives of the sampled producers of bioethanol – The existence of alternative legal remedies The applicants’ standing to bring proceedings as representatives of their members other than the four sampled producers Interest in bringing proceedings 2. Substance The first plea in law, alleging an infringement of Article 2(8), Article 9(5) and Article 18(1), (3) and (4) of the basic regulation, a breach of the principles of legal certainty, legitimate expectations and sound administration and manifest errors of assessment by the Council on account of its refusal to calculate an individual dumping margin and to assign an individual anti-dumping duty, if any, to the applicants’ members included in the sample Application of the WTO Anti-Dumping Agreement in the present case Whether the four sampled US producers have a right to have applied to them an individual anti-dumping duty under Article 9(5) of the basic regulation Whether it was impracticable to impose individual anti-dumping duties in the present case The tenth plea in law, alleging an infringement of Article 6(7), Article 19(1) and (2) and Article 20(2), (4) and (5) of the basic regulation, infringement of the rights of the defence, breach of the principles of non-discrimination and sound administration and a failure to provide adequate reasons Preliminary observations The first part of the tenth plea in law, alleging that the definitive disclosure document was incomplete, infringement of Article 20(2) and (4) of the basic regulation and errors of reasoning in the contested regulation The second part of the tenth plea in law, alleging that the additional disclosure document was communicated, in the first place, to the Member States and to the complainant and then to the applicants, in breach of the principles of sound administration and non-discrimination, of the rights of the defence and of Article 20(5) of the basic regulation The third part of the tenth plea in law, alleging that access to the non-confidential file of the investigation was incomplete, in breach of the rights of the defence, Article 6(7) and Article 19(1) and (2) of the basic regulation The fourth part of the tenth plea in law, alleging that the applicants were not granted sufficient time to submit their comments on the definitive disclosure document, in breach of Article 20(5) of the basic regulation and of the rights of the defence Costs * Language of the case: English. 1 Confidential information redacted.