Judgment — ECLI:EU:T:2006:211
Date: 2006-07-13
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Anti-dumping and anti-subsidy measures
Procedure: Action for annulment - successful

summary table of costs situated in section F-4, point 2, of the anti-dumping questionnaire sent to the Commission on 8 November 2002 (‘table F‑4.2’) . 75 The Court finds, however, that both the Provisional Regulation and the provisional disclosure document are based solely on the data submitted in table F-4.1 in its version of 8 November 2002 and do not make any reference, even for the sake of dismissing them, to the fax of 18 November 2002 and the corrections which it made. 76 The Court considers that that absence of reference, in the Provisional Regulation and in the provisional disclosure document, to the fax of 18 November 2002 is explained by the interpretation which the Commission made of that fax and by the position which it took at the time of the verification visit of 25 and 26 November 2002. The Commission’s interpretation of the fax of 18 November 2002 77 It is apparent from the Council’s pleadings before the Court and its answers to the Court’s questions at the hearing that the Commission took the view, when reading the fax of 18 November 2002, that the applicant directly allocated the production costs of its by-products to those by-products according to an analytic accounting method known as the ‘yield method’. 78 That method consists, according to the Council, in a direct allocation of the production costs, on the basis of yield, between the various products emerging from the production process. Use of this method results in the production costs of the product concerned not including any production cost of the by-products. That method, the Council maintains, is to be distinguished from another method, known as the ‘market value method’, based on the market value or sales price of the by-products. That method involves no direct allocation of the costs of those by-products, but involves a deduction of those costs from the production costs of the product concerned. 79 The reason for the Commission considering, at first analysis and on reading the fax of 18 November 2002, that the applicant used the yield method is that, in the two footnotes inserted by the applicant in that fax and in which it explained the reasons for the corrections made to its answers to the anti-dumping questionnaire, the applicant expressed itself in terms of costs of production of its by-products and not in terms of market value or sales price. The verification visit and the Provisional Regulation 80 The Court finds that the parties are in disagreement as to the content of their exchanges on the subject of the by-products at the time of the verification visit. Whereas the applicant argues that, at the time of that visit, it clearly reiterated its request for deduction already made in writing on 18 November 2002 and that it was reassured that the Commission had understood that request, the Council argues that the applicant confirmed to the Commission that the production costs of the by-products had been allocated directly to the by-products, which gave the Commission grounds for its view that there was no occasion to deduct them. 81 As for the question how that misunderstanding could or should have been dispelled, it should be noted that although, when tackling the question of the by-products during the verification visit, the Commission necessarily had in mind its own reading of the fax of 18 November 2002, based on the wording of the footnotes of that fax, it could not ignore the terms of the corrections in figures made by that fax to the reply of 8 November 2002. The Commission therefore must have been, or should have been, aware of the contradiction between its a priori reading of the fax of 18 November 2002, referred to in paragraph 77 above, and the request backed by figures for reduction of the amount of the production cost of para-cresol expressed in that fax and referred to in paragraph 73 above. 82 The Court finds, however, that the Commission did not seek to dispel the contradiction referred to above. 83 Indeed, it is apparent from the Council’s pleadings that the Commission put ‘a precise question’ to the applicant, namely whether the applicant directly allocated related costs by reference to the yields obtained when producing para-cresol. The applicant replied in the affirmative. That reply ‘confirmed’ the Commission in its view that there was no cause to deduct the costs of the by-products. Therefore, the Commission considered it unnecessary to enquire further into the costs of the by-products. The applicant’s pleadings also refer to the Commission’s lack of interest in the question of the by-products as from the applicant’s answer to the Commission’s question on that subject. The terms of the minutes of the verification visit, drawn up by the Commission on 3 December 2002 and produced by the Council in reply to a written question of the Court, and the statements made at the hearing also corroborate that description of the exchanges between the parties on the subject of the by-products during the verification visit. 84 It follows from the above that, after the applicant’s reply to the question concerning the taking into account of the by-products, the Commission did not indicate to the applicant the consequences which it drew from that answer, namely the non-deduction of the costs of those by-products, even though those consequences were in contradiction to the figures in the fax of 18 November 2002, which envisaged the determination of the production cost of para-cresol at CNY [confidential] and not at CNY [confidential], namely a reduction of CNY [confidential] corresponding, according to the applicant, to the production costs of those by-products, and thus containing, essentially, a request for deduction of the costs of the by-products. 85 The Court finds that, in the absence of any indication by the Commission of that difficulty, the applicant was not in a position, at that point in the investigation, to know that the Commission had concluded that there was no occasion to deduct the costs of the by-products. Only the Commission could be aware of – and thus to report – the contradiction between the requests backed by figures contained in the fax of 18 November 2002 and the treatment which it intended to apply to the costs of the by-products. In those circumstances, the Commission’s silence at the time of its verification visit gave the applicant reason to believe that its request for deduction had been understood and gave rise to no difficulties. 86 At the hearing, however, the Council and the Commission argued that the reason for the Commission not deducting the costs of by-products in the Provisional Regulation lies in the fact that, in its reply to the anti-dumping questionnaire, the applicant did not supply sufficient evidence to justify such a deduction. They argue that it is not for the institutions to substitute themselves for the parties in the replies to be given to the anti-dumping questionnaire, or to carry out an ‘investigation in all directions’. The Council and the Commission also argue that the Commission was right, at the time of the verification visit and having regard to the short time it had at its disposal, to limit itself to recording the applicant’s replies without having to react to them. 87 It is true that, as is shown by the case-law referred to in paragraph 65 above, it is not the function of the Commission to substitute itself for the parties concerned in obtaining information which it is for those latter to supply to it in the context of an anti-dumping investigation. In particular, whilst the Commission is required to verify, as far as possible, the accuracy of the information provided by the parties concerned and on which its conclusions are based (see Article 6(8) of the Basic Regulation), that obligation presupposes that the parties cooperate with the Commission within the meaning of Article 18 of the Basic Regulation. Thus, where an interested party refuses access to, or otherwise does not provide, necessary information within the time‑limits laid down by the Basic Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. The same applies where it is found that any interested party has supplied false or misleading information. 88 In this case, however, the Court finds, first, that there is no dispute that the applicant has not, at any time during the anti-dumping procedure, been guilty of any lack of cooperation for the purposes of Article 18 of the Basic Regulation. 89 In addition, and above all, it finds that the argument of the Council and the Commission that the Commission’s non-deduction of the costs of the by-products in the Provisional Regulation was due to failure by the applicant, in its reply to the anti-dumping questionnaire or at the time of the verification visit, to produce sufficient evidence to justify such a deduction does not take account of the facts. 90 The Commission’s not deducting the costs of the by-products was due not to any alleged insufficiency of the evidence produced by the applicant but to the fact that the Commission had understood from the information and replies of the applicant that the latter did not want that deduction. As stated in paragraph 83 above, the Commission felt ‘confirmed’, at the verification visit, in its assessment, adopted a priori on reading the fax of 18 November 2002, that the costs of the by-products were not to be deducted. 91 If the position of the Council and the Commission, based on the contention that it was the insufficiency of the evidence adduced in support of the request for deduction that justified the deduction not being made, were correct, then the Commission would, at the time of the verification visit, have indicated to the applicant at the outset that that request for deduction, identified as such, was not accompanied, in this case, by sufficient supporting evidence to be usefully taken into consideration. Moreover, and even if the Commission had omitted to warn the applicant of that insufficiency at the verification visit, it was at least required, in discharging its obligations of detailed information and reasoning expressly referred to in, respectively, Article 20(1) and Article 14(2) of the Basic Regulation and reiterated in the case-law cited, respectively, in paragraphs 66 and 63 above, to indicate in the provisional disclosure document and the Provisional Regulation that the request for deduction of the costs of the by-products was rejected in the absence of sufficient proof. In the event, the Court finds that both the provisional disclosure document and the Provisional Regulation are totally silent on the question of the deduction of the costs of the by-products. 92 The terms in which the Commission interpreted the fax of 18 November 2002 and the fact that it did not point out to the applicant the contradiction which existed between the treatment which it was preparing to apply to the costs of the by-products and the figures appearing in that fax meant that the Commission did not place itself in a position, when making that visit, to carry out any of the verifications which would however have been necessary if, the contradiction referred to above having been exposed, a discussion had opened between the parties, leading to the clearing‑up of the misunderstanding and causing the Commission to find that the applicant was requesting a deduction of the costs of its by-products. 93 In that respect, the Court cannot accept the arguments, put forward at the hearing, that, having regard to the limited time available for the verification visit and to the volume of information to be verified, the Commission was not required, at the time of that visit, to do anything more than take passive note of the applicant’s replies, with a view to subsequent analysis. 94 Whilst it is true that the Commission cannot be required, in the context of an anti-dumping investigation and in particular at a verification visit, to substitute itself for the parties, which are under a duty to cooperate honestly and effectively with the Commission in supplying it with necessary and precise information, the fact remains that, in the particular circumstances of this case, the Commission could not, without failing in its duty to make a diligent investigation, omit to point out to the applicant the contradiction which it had found, or ought to have found, between, on the one hand, the figures in the fax of 18 November 2002 and, on the other hand, the fact that it understood from the applicant’s reply that the latter was not requesting deduction of the costs of the by-products. 95 Moreover, in so far as the arguments referred to above might suggest that the Commission needed to carry out a subsequent analysis of the applicant’s replies in order finally to establish its position concerning the treatment to be given to the costs of the by-products, the Court finds that that is contradicted by the fact that, at the time of the verification visit, the Commission considered itself confirmed in its position as to the treatment to be applied to those costs, and that it therefore considered it no longer necessary to enquire on that subject. 96 It follows from the whole of the above considerations that, having regard to the particular circumstances of this case, the Commission made an obvious error of assessment in its evaluation of the wording of the fax of 18 November 2002 and infringed its obligation, recalled in the case-law cited in paragraph 64 above, to take account of all the relevant circumstances and to appraise the facts of the matter with all due care, so that the constructed normal value may be regarded as having been determined in a reasonable manner. 97 It therefore needs to be examined whether those illegalities, which took place at the stage of the Provisional Regulation, have had the consequence of rendering the Contested Regulation unlawful. The fact that the Commission made an obvious error of assessment and failed in its obligation to investigate diligently at the initial stage of the anti-dumping procedure does not automatically entail the illegality of the definitive regulation adopted by the Council. The Contested Regulation 98 In the 12th recital in the preamble to the Contested Regulation, the Council, reproducing exactly the formulation of the proposal for a definitive regulation prepared by the Commission, dealt with the question of by-products in the following terms: ‘[The applicant] claimed that the cost of production of two other products should be deducted from the total cost of production as they result from the same production process and are sold separately. The [applicant] could not substantiate this claim by documented evidence. Indeed the documents collected on the spot indicated that the direct costs were already allocated to the different products which were in line with the initial questionnaire response. Therefore, the claim had to be rejected.’ 99 The Court finds that, in the proposal for a definitive regulation and in the Contested Regulation, the Commission and the Council maintained the treatment applied to the costs of the by-products at the stage of the Provisional Regulation. 100 Thus, the Commission and the Council stood by the amount of CNY [confidential], held at the Provisional Regulation stage as the production cost of para-cresol, and by the choice not to deduct the costs of the by-products, the existence and marketing of which those institutions do not deny, as they confirmed in reply to a question by the Court at the hearing, and which has been recorded in the minutes of the hearing. 101 It therefore needs to be examined whether or not the choice not to deduct the costs of the by-products has arisen, when reiterated at the stage of the proposal for a definitive regulation and, above all, at the stage of the Contested Regulation, from an infringement of the obligation to take account of all the relevant circumstances and to appraise the facts of the matter with all due care, so that the constructed normal value may be regarded as having been determined in a reasonable manner, within the meaning of the case-law cited in paragraph 64 above. 102 The Council makes essentially four arguments before the Court in order to justify maintaining in the Contested Regulation the solution adopted at the stage of the Provisional Regulation. 103 The Council’s first argument consists in maintaining that the applicant’s reply to the anti-dumping questionnaire was incomplete. 104 The Court finds, however, that that argument concerns facts prior to the Provisional Regulation, and that, therefore, it pre-existed that regulation. Whether true or not, that argument did not prevent the Commission from admitting, implicitly but necessarily, at the stage of the Provisional Regulation, the existence and marketing of the by-products and from reserving for the costs of those products a particular treatment consisting in their non-deduction on the ground that those costs had been directly allocated to the by-products. That argument therefore offers no enlightenment as to the reasons why the Commission and the Council maintained, in the proposal for a definitive regulation and in the Contested Regulation, the solution adopted, on the basis of an obvious error of assessment and an infringement of the obligation of diligence, at the stage of the Provisional Regulation. 105 The Council’s second argument consists in maintaining that, during the verification visit, the applicant did not once again explain the problem of the by-products or show the invoices for them. 106 The Court cannot accept that argument either, because, once again, it concerns facts prior to the Provisional Regulation and thus itself pre-existing that regulation. The allegation that the applicant did not once again explain the problem during the verification visit and show the sales invoices of the by-products, even if true, which the applicant strongly denies, has not prevented the Commission from admitting, there again, the existence and marketing of the by-products at the Provisional Regulation stage and does not in any way explain why the treatment reserved for the costs of the by-products at that stage was maintained in the Contested Regulation. 107 The Court would add for the sake of completeness that, even if, as the Council claims, the applicant did not supply additional evidence at the stage of the verification visit, that was only because the attitude of the Commission at that visit gave it reason to suppose that its request for deduction had been well understood and did not raise difficulties in the circumstances (see paragraph 85 above). The Court considers, and the parties have not in any way challenged it at the hearing, that, if the Commission had referred to the contradiction which existed between the figures in the fax of 18 November 2002 and what it understood from the applicant’s replies, discussion would have taken place between the parties and the question of the by-products would have been clarified. 108 The Court is not in any way stating, by these considerations, that the Commission should have conducted an ‘investigation in all directions’. It is simply a question of drawing the consequences from the obligations, recalled in paragraphs 63 and 64 above, upon an institution, which, as in this case, has a wide discretion, to examine all the relevant circumstances of the case with care and impartiality and to appraise the evidence on file with all the diligence required for it to be considered that the constructed normal value has been determined in a reasonable manner. It follows from these obligations that, save where there is a lack of cooperation within the meaning of Article 18 of the Basic Regulation, which is not the case here, the institutions must, where they cannot reasonably consider themselves sufficiently enlightened on a question which is directly relevant to determining the normal value, point that out clearly to the operator concerned. That obligation echoes the obligation, under Article 6(8) of the Basic Regulation, to verify, as far as possible, the accuracy of the information supplied by the parties concerned and on which the conclusions of the institutions are based. 109 The Council’s third argument is in two parts. First, it argues, the information supplied by the applicant contradicted that previously submitted, and, secondly, it was sent late or in an impenetrable language. 110 Concerning the allegation of contradiction, the Court considers that this cannot succeed, for the following reasons. 111 First, this allegation is put forward by the Council only for the purpose of criticising items of evidence produced by the applicant. It is in no way the occasion for that institution to supply a justification for the solution finally adopted by it for the treatment of the by-products. A solution based, at the stage of the Provisional Regulation, on an obvious error of assessment and a failure diligently to examine the file cannot be maintained, at the stage of the definitive regulation, on the ground that the items which the applicant put forward subsequently contained contradictions. Such an argument does not constitute a justification of the treatment finally adopted by the Council any more than do the first two arguments examined above. 112 Furthermore, and for the sake of completeness only, the reality of some of the contradictions alleged by the Council and relied on in its defence has not been proven. 113 For example, the fact that the applicant indicated ‘that the costs of production for the by-products have not been separated from the costs of production of para-cresol’ and requested ‘that the specific costs related to the production of the by-products be deducted from the costs of production for para-cresol’, or the fact that the applicant hesitated between the yield method and the market value method do not constitute genuine contradictions in the successive contentions of the applicant. The contradiction, in so far as it exists, is in reality between the requests of the applicant and the understanding which the Commission had of them at the stage of the Provisional Regulation. It also appears to arise from the fact that the Commission and the Council adhere, in a restrictive manner, to the typology of the methods of taking into account the costs of the by-products referred to in paragraphs 77 and 78 above. The Court finds, however, that, provided generally accepted accounting principles of the country concerned are complied with, Article 2(5) of the Basic Regulation does not lay down any particular restriction as to the methods which may be used for the assessment and accounting treatment of costs. 114 As for the Council’s allegation that the information supplied by the applicant was late and unverifiable, either for reasons of time-limits or for linguistic reasons, this is likewise not capable of justifying maintaining, at the stage of the Contested Regulation, an initial solution that was based on an obvious error of assessment and failure to make a diligent examination of the file. 115 Moreover, the Court considers that that allegation is unfounded. 116 Concerning, first, the alleged lateness, referred to by the Commission in its fax of 25 August 2003, of the information given by the applicant on 18 November 2002 concerning the by-products, the Court notes that, at the hearing, the Council refrained from relying on it. 117 However, the fact remains that the position adopted by the Commission in its proposal for a definitive regulation and that adopted by the Council in the Contested Regulation were based, in particular, on that alleged lateness. 118 On that point, it is undisputed, first, that the fax of 18 November 2002, though (only) a few days later than the time-limit for submitting the reply to the anti-dumping questionnaire, nevertheless arrived at the Commission seven days after the verification visit. Secondly, that fax was in reply to a fax from the Commission of 15 November 2002, expressly inviting the applicant to point out all the errors becoming apparent on the occasion of the preparation of the verification visit. Finally, it is undisputed that the fax of 18 November 2002 was taken into consideration by the Commission in its own time. By doing that, the Commission did no more than use the facility, recognised by the case-law cited in paragraph 67 above, of taking account of information reaching it after the expiry of the time-limits set. In those circumstances, the Commission could not reasonably claim, as it nevertheless did in its fax of 25 August 2003 seeking to justify its refusal to re-examine the question of the by-products, that the fax of 18 November 2002 was out of time. 119 Concerning, secondly, the alleged lateness, referred to by the Commission in its fax of 25 August 2003, of the request for deduction of the sales value of the by-products, which the Commission claims was formulated only on 22 April 2003, that is to say after the Provisional Regulation, the Court finds that, even if the applicant could have expressed itself in greater detail in its replies to the anti-dumping questionnaire, the application for deduction of the costs of the by-products was nevertheless clear from the fax of 18 November 2002, which, as mentioned in paragraph 73 above, contained a request that the production cost of para-cresol for the investigation period be fixed at CNY [confidential] and not at CNY [confidential], namely a reduction of CNY [confidential] corresponding, according to the applicant, to the production costs of the by-products for the investigation period. The Court therefore considers that, in the particular circumstances of the case, the Commission and the Council cannot blame the applicant for sending additional items of information after the latter had been informed, only at the stage of the Provisional Regulation, of the fact that the Commission had not understood that request for deduction. It follows that the applicant could produce such items of information after that regulation, in support of its request for deduction of the costs of the by-products, in particular in its letter of 22 April 2003, it being for the Commission to carry out a diligent re-examination, including further verifications if necessary. To hold otherwise would, in the particular circumstances of this case, amount to depriving the part of the anti-dumping procedure subsequent to the Provisional Regulation of its meaning and effect. 120 As for the Council’s objection that certain documents – essentially accounting documents communicated by the applicant on 23 and 25 July 2003 – were produced only in Chinese, this must also be dismissed for the following reasons. Leaving aside the question as to who had responsibility for any translation of those documents, that objection cannot overcome the fact that, in the particular context of this case, it was the responsibility of the Commission, as the investigating authority and in view of the applicant’s comments of 22 April 2003 on the Provisional Regulation, to begin without delay a complete and diligent re-examination of the position adopted in that regulation concerning the by-products. It is at that stage that the Commission could, supposing the applicant had been under such an obligation, have required it to accompany the documents produced with a translation. In the event, the Commission took no initiative towards such a re-examination. It was the applicant which sent the Commission documents which the latter had not requested. The Council and the Commission cannot therefore rely before the Court on a lack of translation in order to justify the refusal to examine the documents produced by the applicant after the Provisional Regulation, that ground being, moreover, not the one put forward by the Commission in its fax of 25 August 2003. 121 The Council’s fourth argument is to the effect that the documents obtained on the spot indicated that the costs of the by-products were directly allocated to those by-products. The documents handed over to the Commission during the verification visit and to which that argument might be applied are four in number. The first is headed ‘Product cost calculation table of Shandong Reipu Biochemicals Ltd’, and appears in Annex A19 to the application (‘document A19’), the second is headed ‘Cost of production – Investigation period’, and appears in Annex A20 to the application (‘document A20’), the third is headed ‘Ledger of finished products for para-cresol’, and appears in Annex A21 to the application (‘document A21’), and the fourth is headed ‘Cost statistics of products concerned during the investigation period’, and appears in Annex A22 to the application (‘document A22’). Those documents are all tables of figures. 122 Concerning document A19, the Court finds that the criticisms made of it by the Commission, and echoed by the Council in its defence, do not in any way explain why the Commission considered that that document indicated that the costs of the by-products were directly allocated to those by-products. It should be noted in that regard that, immediately after those criticisms in its defence, the Council adds that ‘in order to clarify the issue of the by-products and to decide how to proceed, the Commission’s case-handlers asked the applicant ... whether it directly allocated the related costs according to the yields’. It was only in the light of the applicant’s reply that ‘the Commission understood ... that all costs [indicated in document A19] related only to the product concerned and concluded that there was no reason to deduct anything from the amounts indicated as costs of production of para-cresol’. 123 It is therefore clear that it was not the content of document A19 which led the Commission to conclude that the costs of the by-products were directly allocated to them, but only the understanding which the Commission had of the applicant’s reply to the question asked on that subject. 124 Concerning documents A20 and A21, it is clear from the Council’s defence that they were neither requested nor examined by the Commission for the purposes of answering the question of the by-products. 125 As regards document A22, the Council itself states, in its defence, that the Commission ‘did not refer to this specially prepared document when concluding that the costs for the by-products were already allocated to the by-products’. 126 More generally, and as set out in paragraph 83 above, the Council’s description of the conduct of the verification visit reveals that, once it thought it had received confirmation from the applicant of the direct allocation of the costs of the by-products, the Commission was not interested in the four documents referred to above. 127 It follows that the Commission’s statement, in particular at the hearing on 19 May 2003, reproduced verbatim in recital 12 of the Contested Regulation, to the effect that the documents produced at the time of the verification visit showed that the costs of the by-products should not be deducted, is without foundation. 128 The final conclusion, after examining the Council’s four arguments above, is that the Commission, then the Council, wrongly refused seriously to re-examine, after the Provisional Regulation, whether the treatment given at that stage to the costs of the by-products was appropriate, thereby perpetuating, at the stage of the Contested Regulation, the effects of the obvious error of assessment and the infringement of the obligation to examine diligently committed at the stage of the Provisional Regulation. 129 The Court would emphasise that this is not to say that, in this case, the Council should have made the deduction requested by the applicant on the strength only of the information given by the latter before and after the Provisional Regulation. The Court cannot prejudge the solution to which a diligent re-examination would have led. Nor does the Court rule that that information was of perfect quality and could be accepted without verification; it merely holds that, in the particular circumstances of the case and in the light of that information, the Commission and the Council should have concluded that the position adopted at the stage of the Provisional Regulation had been adopted hastily, and that it was necessary, given their obligation to make a diligent examination and in order to reach a reasonable calculation of the normal value, to re-examine the question of the by-products with care. 130 It follows from the above considerations as a whole that, in the particular circumstances of this case, the Commission and the Council have failed, both before and after the Provisional Regulation, in their obligations, referred to by the case-law cited in paragraph 64 above, to take account of all the relevant circumstances and appraise the facts of the matter with all due care, so that the constructed normal value may be regarded as having been determined in a reasonable manner. 131 The Contested Regulation must therefore be annulled in so far as it concerns the applicant, without there being any need for the Court to rule on the second and third grounds for annulment, or to grant the applicant’s request for production by the Commission of the calculations on which it based its assessment of the injury suffered by the Community industry. Costs 132 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 successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs of the applicant, as the latter has claimed. 133 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which intervene in the proceedings are to bear their own costs. Under the third subparagraph of Article 87(4), the Court of First Instance may order an intervener other than those mentioned in the second subparagraph to bear its own costs. The Commission and DKL, which have intervened in support of the Council, are therefore ordered to bear their own costs. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby rules: 1. Council Regulation (EC) No 1656/2003 of 11 September 2003 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of para-cresol originating in the People’s Republic of China is annulled in so far as it concerns the applicant. 2. The Council is ordered to bear its own costs and those incurred by the applicant. 3. The Commission and Degussa Knottingley Ltd are ordered to bear their own costs. Vilaras Martins Ribeiro Jürimäe Delivered in open court in Luxembourg on 13 July 2006. E. Coulon M. Vilaras Registrar President * Language of the case: English. 1 – Confidential data omitted.