ORDER OF THE GENERAL COURT (Third Chamber)
8 December 2022 (*)
(Action for annulment – Dumping – Imports of stainless steel cold-rolled flat products originating in China and Taiwan – Definitive anti-dumping duty – Act not of individual concern – Regulatory act entailing implementing measures – Inadmissibility)
In Case T‑769/21,
European Association of Non-Integrated Metal Importers & distributors (Euranimi), established in Brussels (Belgium), represented by M. Campa, D. Rovetta, P. Gjørtler and V. Villante, lawyers,
applicant,
v
European Commission, represented by K. Blanck and G. Luengo, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber),
composed, at the time of the deliberations, of G. De Baere, President, G. Steinfatt (Rapporteur) and K. Kecsmár, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, European Association of Non-Integrated Metal Importers & distributors (Euranimi), an association representing the interests of European importers, distributors, traders and processors of unintegrated steel, stainless steel and metal products, seeks annulment of Commission Implementing Regulation (EU) 2021/1483 of 15 September 2021 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2021 L 327, p. 1; ‘the contested regulation’).
Background to the dispute
2        On 26 August 2015, the European Commission adopted Implementing Regulation (EU) 2015/1429 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10; ‘the initial measures’).
3        Following the publication of a notice of the impending expiry of certain anti-dumping measures (OJ 2019 C 405, p. 11), the Commission received, on 26 May 2020, from the European Steel Association (Eurofer), which represents more than 25% of the total EU production of stainless steel cold-rolled flat products (‘the product concerned in the present case’), a request for review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) as amended (‘the basic regulation’). According to that request, the expiry of the initial measures would be likely to result in continuation or recurrence of dumping and injury to the Union industry.
4        On 25 August 2020, the Commission initiated an expiry review of the anti-dumping measures concerning stainless steel cold-rolled flat products originating in China and Taiwan pursuant to Article 11(2) of the basic regulation. In the Notice of Initiation of that expiry review (OJ 2020 C 280, p. 6), the Commission invited interested parties to contact it in order to participate in the investigation. In addition, the Commission informed known importers, users and traders, as well as associations known to be concerned, amongst others, about the initiation of the investigation and invited them to participate.
5        Interested parties had an opportunity to comment on the initiation of the expiry review and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.
6        On 2 July 2021, the Commission communicated the General Disclosure document containing the essential facts and considerations on the basis of which it intended to maintain the anti-dumping duties in force regarding imports from the countries concerned. All parties were granted a period within which they could make comments on that information.
7        The applicant expressed its views on several occasions during the remainder of the anti-dumping proceeding in written observations and oral observations at a hearing.
8        On 15 September 2021, the Commission adopted the contested regulation, which provides as follows:
‘Article 1
1. A definitive anti-dumping duty is imposed on imports [of the product concerned in the present case] and originating in the People’s Republic of China and Taiwan.
2. The rates of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and produced by the companies listed below, shall be as follows:
Country
Company
Anti-dumping duty (%)
TARIC additional code
PRC
Shanxi Taigang Stainless Steel Co., Ltd, Taiyuan City
24.4
C024
PRC
Tianjin TISCO & TPCO Stainless Steel Co Ltd, Tianjin City
24.4
C025
PRC
Other cooperating companies listed in Annex
24.6
PRC
All other companies
25.3
C999
Taiwan
Chia Far Industrial Factory Co., Ltd, Taipei City
0
C030
Taiwan
All other companies
6.8
C999
…
4. Unless otherwise specified, the provisions in force concerning customs duties shall apply.’
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested regulation;
–        order the Commission to pay the costs.
10      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
11      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may give a ruling on inadmissibility or lack of competence without going to the substance of the case.
12      In the present case, since the Commission has requested a ruling on the inadmissibility of the action, the Court, considering that it has sufficient information from the documents in the file, has decided to rule on that application without taking further steps in the proceedings.
13      The Commission pleads that the present action is inadmissible on the ground that the contested regulation is not of individual concern to the applicant and entails implementing measures.
14      Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person (first limb) or which is of direct and individual concern to them (second limb), and against a regulatory act which is of direct concern to them and does not entail implementing measures (final limb).
15      By its arguments, the applicant claims, in essence, that it is entitled to bring this action both on behalf of its members, specifically those who granted it power of attorney, and on its own behalf.
16      More particularly, actions brought by associations have been held to be admissible in three well-defined situations: (i) where the association represents the interests of its members who would be entitled to bring proceedings in their own right; (ii) where a legal provision expressly grants trade associations a series of procedural rights; and (iii) where the role played by an association in a proceeding which led to the adoption of an act within the meaning of Article 263 TFEU may justify the admissibility of the action brought by that association, although its members are not directly and individually concerned by that act, in particular where its position as negotiator has been affected by that act; the last two situations correspond to the defence of the association’s own interests (see judgment of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraphs 87 and 88 and the case-law cited; judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 33).
Admissibility of the applicant’s action as representative of its members
17      As is apparent from the case-law, in the first situation referred to in paragraph 16 above, an association’s ability to bring an action is based on the consideration that an action brought by an association presents procedural advantages, since it obviates the institution of numerous separate actions against the same acts, as the association has substituted itself for one or more of its members whose interests it represents, who could themselves have brought an admissible action (judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 35).
18      The applicant submits, without being challenged on this point by the Commission, that it has the task and authorisation, under Articles 4.1, 4.2 and 4.5 of its statute, to represent and defend, by all legal means, the commercial interests and other business interests of its members at European and supranational levels, in particular in the fields of international trade, customs, taxation and anti-trust matters. In addition to its statute, which authorises it to represent its members in the present case, the applicant relies on specific powers of attorney granted by several of its members to represent them and challenge the contested regulation on their behalf.
19      It must therefore be examined whether the applicant’s members, in particular those who granted it power of attorney, were in a position to bring admissible actions by virtue of the fourth paragraph of Article 263 TFEU. Since the contested regulation was not addressed to those companies, it must be examined whether that regulation is of direct and individual concern to them and, if that last condition is not met, whether the contested regulation is a regulatory act which does not entail implementing measures (see, to that effect, judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 39).
Whether the applicant’s members are directly and individually concerned
20      According to settled case-law, which is, moreover, not disputed by the parties, importers are directly concerned by anti-dumping regulations (see order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 23 and the case-law cited). The parties, however, disagree as to whether the applicant’s members are individually concerned by the contested regulation.
21      According to the Commission, the Courts of the European Union have repeatedly ruled that, in principle, importers or their trade associations are not individually concerned by a regulation establishing anti-dumping duties, since the measure imposed is the same for all importers of the product in question in the European Union.
22      First, the Commission claims that it is apparent from the settled case-law that individual concern cannot be demonstrated solely on the basis of the applicant’s participation in the administrative proceeding which led to the adoption of the contested measure. What matters for individual concern is the quality of the importer as compared to its peers, that is to say whether there is a particular situation which distinguishes that undertaking from all other traders.
23      The applicant did not come forward within the periods provided in the Notice of Initiation for interested parties to participate in the investigation, but only after the final disclosure. According to the Commission, although one of the applicant’s members, LSI Lamiere Speciali Inox SpA (‘LSI’) – for which the power of attorney is annexed to the application – came forward when the proceeding was initiated, it did not submit any reply to the questionnaire and did not cooperate in any other way before the final disclosure, as noted in recital 276 of the contested regulation. Consequently, neither the applicant nor its members were individually concerned by the findings set out in the contested regulation, which were made without taking into account specific information about those undertakings.
24      Moreover, the Commission submits that it was not compelled to adapt its reasoning in view of the applicant’s observations. Rather, all the claims made by that applicant were rebutted in the contested regulation. Individual concern cannot be obtained by making spurious arguments in the context of an investigation.
25      It follows, according to the Commission, that the applicant has not shown that the contested regulation was adopted taking into account its individual situation or that of its members.
26      Secondly, the Commission argues that the applicant’s members do not fall within a category similar to that of the applicant in the case which gave rise to the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), since the applicant does not claim, let alone, demonstrate the existence of a peculiar situation or exceptional circumstances for it or its members. It merely asserts that imports from exporters named in the contested regulation are ‘extremely important for the survival of the business of [some of its members] as they account for a percentage ranging from 50% to 65% of each company’s total supply requirements’. However, it is unclear to which period those statements relate. Consequently, the applicant has failed to adduce evidence that the contested regulation caused or may cause its members the loss of most of their EU customers and, consequently, materially impaired their position on the relevant market.
27      Nor, according to the Commission, does the applicant demonstrate its inability to obtain the same products from other exporters or from other countries. Recital 278 of the contested regulation indicates that there have been various sources of supply and the market share of imports from other third countries has even increased throughout the period considered, with the result that changing suppliers was not impracticable. Among the exporters referred to in paragraph 78 of the application, the company Chia Far Industrial Factory Co., Ltd, Taipei is entitled to a 0% duty. The applicant does not demonstrate that its members’ business activities depend ‘to a very large extent’ on those imports.
28      Nor has the applicant shown that any of its members was the largest importer of the product concerned in the present case. The Commission thus asserts that the economic consequences suffered by the applicant’s members are not more significant than the consequences with which other importers are confronted.
29      First, the applicant claims that it actively took part in the investigation which led to the adoption of the contested regulation. In that context, the applicant acted both on its own behalf, but also on behalf of its members, and specifically those which granted it power of attorney. One of them, LSI, participated in the investigation since its beginning.
30      In the present case, the applicant made itself known to the Commission on 5 July 2021 and expressed its wish to file its observations on the General Disclosure document and to request a hearing before the Commission’s services in charge of that investigation.
31      On 12 July 2021, it submitted to the Commission its observations on various matters relating to the General Disclosure document issued by the Commission.
32      The applicant submits that it also requested, and was granted, a hearing before the Commission on 14 July 2021. On that occasion, and by means of the subsequent observations of 16 July 2021, the applicant reiterated the unlawfulness arising from the extension of the definition of the product concerned in the present case and the absence of material injury to the Union industry. The applicant also brought to the attention of the Commission the stainless-steel shortage situation affecting the entire European market and the negative effects of anti-dumping duties during the COVID and post-COVID periods.
33      On 21 July 2021, the applicant lodged another submission, in which it stated that, in view of the serious shortage of raw materials affecting the Union industry and, in particular, the lack of stainless steel cold-rolled flat products and in the absence of real injury, the imposition of duties on steel cold-rolled flat products from China and Taiwan was inconsistent with the pursuit of the real European interest.
34      According to the applicant, the Commission was compelled, in the contested regulation, to adapt its reasoning in view of the applicant’s observations.
35      Secondly, the applicant argues that its members are importers, processors and distributors of the product concerned in the present case and that they also depend on imports from third countries, since the European production capacities relating to those products are insufficient to meet demand on the European market. The product concerned in the present case, imported from China and Taiwan in particular, represents, for the undertakings which granted the applicant power of attorney, between 50% and 65% of total supply requirements between 2019 and 2022, with the result that, in order to supply their production capacity, those imports are necessary, unlike the case of ‘ordinary’ importers. The suppliers of the applicant’s members are the following exporting companies named in the contested regulation and subject to the anti-dumping duties at issue:
–        Shanxi Taigang Stainless Steel Co., Ltd, Taiyuan City;
–        Tianjin TISCO & TPCO Stainless Steel Co Ltd, Tianjin City;
–        Chia Far Industrial Factory Co., Ltd, Taipei City;
–        Lianzhong Stainless Steel Corporation, Guangzhou;
–        Ningbo Qi Yi Precision Metals Co., Ltd, Ningbo;
–        Tianjin Lianfa Precision Steel Corporation, Tianjin City;
–        Zhangjiagang Pohang Stainless Steel Co., Ltd, Zhangjiagang.
36      As to the course of action proposed by the Commission that the applicant’s members could change suppliers and start importing products from a named exporter, namely Chia Far Industrial Factory, which is subject to 0% anti-dumping duties, the applicant argues that it is not practicable for all of those members. First of all, the applicant’s members concluded contracts with their suppliers which bind them to those suppliers for medium- to long-term periods. The fact that anti-dumping duties have been imposed on those suppliers does not constitute a valid reason for the applicant’s members to terminate those contracts. In addition, Chia Far Industrial Factory would not have the capacity to supply the product concerned in the present case in the required huge amounts to some, let alone, all of the applicant’s relevant members.
37      Next, the applicant submits that that exporting producer has very limited capacity and supplies special products only, such as bright annealed finish and thin gauge products, with the result that it cannot satisfy any demand for the product concerned in the present case and cannot therefore be regarded as an alternative supplier.
38      Lastly, the applicant submits that the inability to obtain supplies from that exporting producer is all the more pronounced in 2022, in view of the systemic worldwide shortage of the product concerned in the present case, which is accompanied by a sudden increase in prices. In the document appearing in Annex A.12 to the application, the applicant, during the investigation, alerted the Commission to the lack of raw materials and of the products at issue on the market, a situation which deteriorated even more in 2022.
39      In that regard, according to settled case-law, in order to be regarded as individually concerned by an act which is not addressed to that person, natural or legal persons must be affected by that act by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 93; and order of 7 April 2022, Bloom v Parliament and Council, T‑645/21, not published, EU:T:2022:230, paragraph 40).
40      According to equally settled case-law, while it is true that, in the light of the criteria laid down in the fourth paragraph of Article 263 TFEU, regulations imposing anti-dumping duties are, as regards their nature and their scope, of a legislative character, inasmuch as they apply to all the traders concerned, some provisions of those regulations may nonetheless be of individual concern to certain traders. It follows that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders who therefore have standing to bring proceedings for annulment of those measures (see judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraphs 13 and 14 and the case-law cited; order of 27 January 2006, Van Mannekus v Council, T‑280/03, not published, EU:T:2006:32, paragraphs 108 and 109).
41      In the first place, the Courts of the European Union have held that some provisions of regulations imposing anti-dumping duties may be of individual concern to those of the producers and exporters of the product in question who are charged with practising dumping on the basis of data relating to their commercial activities. That is generally the case where producers or exporters are able to demonstrate that they were identified in the measures adopted by the Commission or the Council, or were concerned by the preliminary investigations (see order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 25 and the case-law cited; judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 43).
42      In the second place, some provisions of regulations imposing anti-dumping duties are also of individual concern to those of the importers of the product at issue whose resale prices were taken into account for the construction of export prices and who are, therefore, concerned by the findings relating to the existence of dumping (see order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 26 and the case-law cited; judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 44).
43      The Court of Justice has also held that importers associated with exporters in non-member countries on whose products anti-dumping duties have been imposed may challenge the regulations imposing such duties, particularly where the export price has been calculated on the basis of their selling prices on the European Union market as well as in the case where it was not the existence of dumping which was established on the basis of the resale prices of those importers but the calculation of the anti-dumping duty itself (see order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 27 and the case-law cited; judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 44).
44      In the third place, the Court of Justice has held that an original equipment manufacturer, without it being necessary to categorise it as an importer or exporter, was individually concerned by the provisions of the regulation establishing anti-dumping duties relating to the dumping practices of the producer from which it had bought the products because of the particular features of its business dealings with that producer. The Court of Justice took the view that it was in order to reflect those particular features that the Council had fixed a certain profit margin in constructing the normal value, which had then been taken into account in calculating the dumping margin on the basis of which the anti-dumping duty had been set, with the result that the original equipment manufacturer was concerned by the findings relating to the existence of the dumping complained of (see order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 28 and the case-law cited; judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 45).
45      This recognition of the right of certain categories of traders to bring an action for the annulment of an anti-dumping regulation cannot, however, prevent other traders from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (see order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 29 and the case-law cited; judgment of 15 September 2016, Molinos Río de la Plata and Others v Council, T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509, paragraph 46).
46      In the present case, the applicant does not claim that its members belong to any of the three categories of traders referred to in paragraphs 41 to 44 above.
47      Furthermore, it is apparent from footnote 10 relating to recital 28 of the contested regulation, which is not disputed by the applicant, that that applicant is an association of independent metal importers and distributors. Nor does the applicant claim that its members’ resale prices were taken into account for the construction of export prices, such that they would be concerned by the findings relating to the existence of dumping, or by the calculation of the anti-dumping duty itself.
48      On the other hand, the applicant claims to be individually concerned by reason, first, of its own involvement and of that of one of its members in the proceeding which led to the adoption of the contested regulation and, secondly, of the particular situation of its members which granted it power of attorney with regard to the measures adopted by that regulation.
49      As regards, in the first place, the applicant’s participation, as representative of its members, in the proceeding which led to the adoption of the contested regulation, it is necessary to bear in mind the settled case-law that, although participation by an undertaking in an anti-dumping proceeding may be taken into account, amongst other factors, in order to establish whether that undertaking is individually concerned by the regulation introducing anti-dumping duties adopted at the conclusion of that proceeding, if there are no other factors giving rise to a particular situation which distinguishes that undertaking from all other traders, with respect to the measures in question, such participation does not, of itself, give rise to a right enabling the undertaking to bring a direct action against that regulation (judgments of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 61, and of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, point 34). The distinction between a regulation and a decision is based on the nature of the measure itself and the legal effects which it produces and not on the procedures for its adoption (order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 55).
50      The same applies to the reference to the name of an undertaking or representative association in a regulation imposing anti-dumping duties. Since the mere participation of an undertaking or a representative association in an anti-dumping proceeding is not sufficient, in the absence of other factors, to give rise to a right enabling the undertaking to bring a direct action against the regulation at issue, an applicant cannot derive that right from the reference to its name in one or more recitals of that regulation, since that reference merely records its participation in the proceeding (see, to that effect, judgment of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 35 and the case-law cited).
51      Nor can the Court accept the applicant’s claim that its participation in the proceeding before the Commission, in its capacity as representative of its members, affected the outcome of that proceeding. First of all, the applicant has not substantiated that claim in any way. Next, as submitted by the Commission, all the applicant’s observations were rejected by the Commission. Lastly, and in any event, neither the Court of Justice in the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), nor the General Court in its case-law subsequent to that judgment, adopted that criterion proposed by Advocate General Jacobs in his Opinion in Extramet Industrie v Council (C‑358/89, EU:C:1991:144, point 66) in order to hold that it was sufficient to establish individual concern (order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 44, and judgment of 3 May 2018, Distillerie Bonollo and Others v Council, T‑431/12, EU:T:2018:251, paragraphs 83 and 84).
52      As the Commission submits, the applicant began to participate in the proceeding which led to the adoption of the contested regulation at a very late stage, that is to say, after the communication of the General Disclosure document. Although one of its members, LSI, came forward within the period prescribed in the Notice of Initiation, it did not however reply to the questionnaire or cooperate with the expiry review of the initial measures, as is apparent from recital 276 of the contested regulation, which is not disputed by the applicant. Thus, the findings set out in the contested regulation could not have even been of individual concern to the applicant’s members (see also paragraph 47 above).
53      As regards specifically the applicant’s observations concerning the Union interest referred to in paragraphs 32 and 33 above, it should be borne in mind that, to accept the argument that such a contribution in the anti-dumping proceeding would have the effect of distinguishing the author of that submission individually would render meaningless the requirement that the trader must be individually concerned. It is apparent from recital 269 of the contested regulation that the determination of the Union interest was based on an appreciation of all the various interests involved, that is to say, those of the Union industry, importers, distributors and users (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 52).
54      Thus, the mere participation of the applicant, as a representative of its members, and of LSI in the proceeding did not have the effect of distinguishing the applicant individually for the purposes of the fourth paragraph of Article 263 TFEU.
55      In the second place, the participation of an undertaking in an anti-dumping proceeding may nevertheless contribute, taken together with other factors, to establishing that that undertaking is individually concerned by the regulation imposing anti-dumping duties adopted at the end of that proceeding by reason of certain attributes which are peculiar to it and which differentiate it from all other persons (see paragraph 45 above).
56      The Court of Justice has recognised that that was the case in respect of an independent importer, which had established the existence of a set of factors constituting a situation which was peculiar to it and which differentiated it, as regards the measure in question, from all other traders. In particular, the independent importer concerned had proved, first, that it was the largest importer of the product forming the subject matter of the anti-dumping measure and, at the same time, the end-user of that product, secondly, that its business activities depended to a very large extent on those imports and, thirdly, that those activities were seriously affected by the regulation at issue in view of the limited number of manufacturers of the product concerned and of the difficulties which it encountered in obtaining supplies from the sole EU producer, which, moreover, was its main competitor for the processed product (judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17; see also order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 30 and the case-law cited).
57      It indeed follows from the case-law that the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), did not lay down an exhaustive list of the conditions which an independent importer must meet in order to be regarded as individually concerned by a regulation introducing anti-dumping duties and that it is therefore possible that other factors might, to that end, be taken into consideration by the Courts of the European Union (judgment of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 56).
58      However, the situation of the applicant’s members is in no way similar to the very specific situation in which the applicant found itself in the case which gave rise to the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214).
59      First, the applicant does not claim that its members, taken individually or collectively, are the largest importers of the product concerned in the present case. In that regard, it has merely stated, in the letter appearing in Annex A.9 to the application, in which it expressed its wish to participate in the proceeding before the Commission, that it represents ‘some’ European importers.
60      Secondly, as regards its alleged dependence on imports of the product concerned in the present case from China and Taiwan, the applicant has put forward an argument based on the proportion of those imports in the total supply requirements of its members which granted it power of attorney, namely 50 to 65%, and has maintained that that percentage is greater than that of other importers. However, those percentages, which are based solely on statements made by those members, are not substantiated. Even if those proportions of imports of those members of the applicant correspond to reality, the applicant does not show that those proportions are significantly larger than those of other importers. The possibility that the proportion of imports of the product concerned in the present case in the total supply needs of the other Union importers is the same or even greater is therefore in no way ruled out (see, to that effect, order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 49).
61      Nor has the applicant established the alleged existence of supply contracts with the undertakings subject to the anti-dumping duties at issue, which are binding for medium- to long-term periods and render it impossible to reduce supply volumes from those sources in favour of other sources of supply.
62      Unlike the applicant’s situation in the case which gave rise to the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), there are, as shown in Table 5 of the contested regulation and recital 278 thereof, various sources of supply of the product concerned in the present case. In particular, apart from the EU production, there are imports not only from China and Taiwan, but also from Korea, India, Indonesia and even South Africa.
63      Although the applicant submits that the supply requirements of its members cannot be met solely by the exporting producer referred to in Article 1(2) of the contested regulation, whose exports are subject to a 0% rate, it must be stated that, in its plea of inadmissibility, the Commission merely referred to that exporting producer by way of example as an alternative source of supply among others. Thus, the applicant has misread the Commission’s argument.
64      As to the applicant’s argument based on an alleged shortage of the product concerned in the present case on the global market, it must be found that, even if that alleged shortage were established, it concerns all importers and buyers of that product in the European Union and is not capable of constituting an indication that the applicant’s members are distinguished individually.
65      Consequently, the applicant has not shown that its members are dependent on imports of the product concerned in the present case such as to distinguish them individually from other importers.
66      Thirdly, the applicant does not specifically state the consequences of the anti-dumping duties at issue for the business activities of its members. It merely claims that imports of the product concerned in the present case are necessary and required and refers to a sudden increase in prices accompanying the shortage of that product on the global market.
67      It follows that the applicant has not shown that the imposition of the anti-dumping duties at issue would have serious consequences for its members’ business activities such as to distinguish it individually in the light of the contested regulation from all other persons for the purposes of the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214).
68      Furthermore, it is apparent from a comparison of the operative part of the contested regulation with the regulation that imposed the initial measures in 2015 that the rates of the anti-dumping duties remained identical. The contested regulation does not therefore alter the situation of the applicant’s members in comparison with that which existed before the contested regulation was adopted. Although the applicant submits, in its first plea in law, that the list of goods concerned in the present case was extended by the contested regulation, it does not claim that that circumstance, assuming it to be established, would have had serious consequences for its business activities.
69      It is also important to state that the increased price of the products or the need to change supply chains are merely typical consequences of any regulation establishing definitive anti-dumping duties, burdening in the same way all importers which specialise in the importation and resale of the products at issue (see, to that effect, orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 56, and of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 69). Furthermore, the imposition of the anti-dumping measures at issue was a step taken in order to correct market distortions, as a result of the dumping carried out, as alleged by the Commission, by the exporting producers in question. Accordingly, it is not prohibitive, in the sense that it neither brings imports from the countries concerned to a halt nor requires importers to obtain supplies from other countries.
70      The Commission’s intervention was therefore not prompted by the situation of the applicant’s members. It follows that the applicant has not proved that the contested regulation affected its members other than in their objective capacity as importers of the product concerned in the present case, in the same way as any other trader in an identical situation.
71      Consequently, neither the applicant’s members nor the applicant itself, in its capacity as representative of those members, are individually concerned by the contested regulation.
The existence of implementing measures for the contested regulation vis-à-vis the applicant’s members
72      In accordance with settled case-law, regulations imposing definitive anti-dumping duties, such as the contested regulation, are regulatory acts (orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 65, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 56). In the present case, the parties, however, disagree as to whether the contested regulation entails implementing measures vis-à-vis the applicant’s members.
73      The Commission claims that the applicant cannot rely on the final limb of the fourth paragraph of Article 263 TFEU, since the contested regulation entails implementing measures. Where a regulatory act entails implementing measures, judicial review of compliance with the European Union legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in that provision, to challenge a regulatory act of the European Union directly before the Courts of the European Union are protected by the ability to challenge the implementing measures which the act entails. For the purposes of that assessment, contrary to the applicant’s allegations, it is irrelevant whether or not those measures are of a mechanical nature.
74      While the Member States must, in principle, apply the measures adopted in the context of the common commercial policy for the purposes of the uniform implementation of the Common Customs Tariff, the fact remains that those implementing measures, applied to the individual situation of the importer concerned, are the only measures that produce the effects of the contested regulation.
75      It is also apparent from the case-law that all imported goods must be covered by a customs declaration. Customs notifications relating to imports of products covered by the regulations imposing anti-dumping duties may be regarded as implementing measures. According to the Commission, should the importer concerned believe, on the basis of those implementing measures, that it has been unduly subjected to the imposition of such duties, he or she may challenge the determination of those duties at national level, in accordance with the review procedure established by the Member State in question, with the possibility of referring a question to the Court of Justice for a preliminary ruling.
76      The applicant submits that the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the new Customs Code’) significantly reduced the involvement of customs officials because of the introduction of the principles of electronic communication and the use of electronic systems. Thus, the finding set out in paragraph 71 of the order of 21 January 2014, Bricmate (T‑596/11, not published, EU:T:2014:53), that, under Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the former Customs Code’), the amount of duty must be communicated to the debtor in accordance with appropriate procedures as soon as it has been entered in the accounts, that is to say, drawn up by the national authorities, with the result that that communication constitutes, vis-à-vis that debtor, a measure of implementation of the contested regulation taken vis-à-vis him or her by the national authorities, is no longer valid.
77      In the first place, in the judgments of 9 June 2021, Puma and Others v Commission (T‑781/16, not published, EU:T:2021:328, paragraph 47), and of 9 June 2021, Roland v Commission (T‑132/18, not published, EU:T:2021:329, paragraph 46), the Court found that, first, the contested regulation in those cases directly affected the applicants’ legal position since it determined the anti-dumping duty which those applicants had to pay in their capacity as importers, and, secondly, that regulation obliged the Member States, in particular their customs authorities, to levy that duty without leaving them any discretion, with the result that those applicants were directly concerned by that regulation. In the applicant’s view, that rules out the possibility of any implementing measure on the part of those authorities at national level.
78      In the second place, according to the applicant, it follows from the rules set out in the new Customs Code that if no control is carried out by the national customs authorities, which is the case for the imports made by the applicant’s members, those authorities do not perform any act implementing the anti-dumping regulations.
79      The applicant submits that Articles 101, 102 and 104 of the new Customs Code, concerning, respectively, the determination of the amount of import duties, the notification of the customs debt and the entry in the accounts of the amount of import duties payable, cannot be read independently of the rules relating to electronic communication and standard customs controls based on risk assessment methods. It is the importer who determines the elements on which the calculation of the payable customs duties is based.
80      In addition, unless the customs authorities decide to control a declaration or the goods covered by such a declaration, the amount of customs duties and their payment are determined by the importer without any intervention by the customs authorities.
81      In the third place, the applicant argues that the case-law stemming from the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), concerning the question whether the failure to bring an action under the fourth paragraph of Article 263 TFEU against an act means that the applicant is prevented from raising the issue of the validity of that act before a national court, has no effect on standing to bring proceedings in respect of regulatory acts under the fourth paragraph of Article 263 TFEU.
82      According to the applicant, it is apparent from the judgment of 12 December 1996, Accrington Beef and Others (C‑241/95, EU:C:1996:496, paragraph 15), that the ‘foreclosure effect’ referred to in the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), does not apply where it is not obvious that an action brought by the applicant, based on the fourth paragraph of Article 263 TFEU, against that regulation would have been admissible. The Court of Justice confirmed that approach in the judgment of 18 October 2018, Rotho Blaas (C‑207/17, EU:C:2018:840, paragraphs 38 and 39), in which it held that ‘it is by virtue of acts adopted by the competent national authorities that the payment of anti-dumping duties imposed by the contested regulations is imposed on the operators concerned … Therefore, it cannot be held that the contested regulations manifestly do not entail implementing measures for the purposes of the final limb of the fourth paragraph of Article 263 TFEU’.
83      Consequently, in the applicant’s submission, there is no basis for claiming that that provision applies only if it is ‘manifest’ that a regulatory act does not require implementing measures. In certain situations, it is ‘possible’, but not ‘obvious’ or ‘manifest’, that an applicant has standing to bring proceedings under the fourth paragraph of Article 263 TFEU. In that case, it follows from the judgments of 12 December 1996, Accrington Beef and Others (C‑241/95, EU:C:1996:496), and of 18 October 2018, Rotho Blaas (C‑207/17, EU:C:2018:840), that the fact that the applicant attempts to claim standing to bring proceedings by virtue of the fourth paragraph of Article 263 TFEU cannot have any bearing on the admissibility of any question referred for a preliminary ruling under Article 267 TFEU. Any other interpretation would lead to a situation in which virtually no regulatory act could be challenged under the fourth paragraph of Article 263 TFEU, because it would always be possible to argue that the application of regulatory acts involves the exercise of some administrative authority. If that exercise were always to be regarded as constituting an implementing measure, Article 263 TFEU would be rendered meaningless with regard to regulatory acts. Such an interpretation would also be contrary to the intentions of the drafters of the Treaty, who introduced the standing to bring proceedings by virtue of the final limb of the fourth paragraph of Article 263 TFEU in response to the call for action made by the Court of Justice in the judgment of 25 July 2002, Unión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:462, paragraph 45).
84      In that regard, it is settled case-law that the existence of implementing measures for the contested regulation, in the light of the fourth paragraph of Article 263 TFEU, must be examined in view of the objective pursued by that provision, namely to enable natural and legal persons to bring an action against acts of general application which are not legislative acts, which are of direct concern to them and which do not entail implementing measures, thereby avoiding a situation in which such a person would have to break the law in order to have access to justice (order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 66; see also, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 49; and order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraphs 58 and 59).
85      It is therefore necessary to examine whether the regulatory act of the European Union is implemented by another act which may be challenged by the person to whom it is addressed either before the General Court or before the courts and tribunals of the Member States (see, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraphs 50 and 51, and order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 67).
86      Contrary to what is claimed, in essence, by the applicant, the examination at issue does not consist in ascertaining whether the contested regulation manifestly entails implementing measures.
87      Admittedly, it is apparent from the case-law delivered in reply to questions referred for a preliminary ruling, cited by the applicant, that the Court of Justice was able to hold that the acts in question manifestly did not entail implementing measures (judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 39). However, as is moreover noted in paragraph 28 of the judgment of 18 October 2018, Rotho Blaas (C‑207/17, EU:C:2018:840), that determination corresponds to the criterion of admissibility, not of actions for annulment brought under Article 263 TFEU, but of questions referred for a preliminary ruling on validity, which are inadmissible if a direct action before the General Court against the act whose validity is at issue would have been manifestly admissible. It is indeed apparent from the case-law that, where it may be considered that a person would have undoubtedly been entitled to seek annulment of the act at issue – inter alia because it manifestly does not entail implementing measures – that person is precluded from pleading its invalidity before the competent national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23, and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18). That case-law, which is intended to facilitate access to the Court of Justice for a preliminary ruling, cannot therefore be transposed to the analysis, by the court hearing an action for annulment, of the admissibility of actions brought before it, which remains subject, in the case of a regulatory act of direct, but not of individual, concern to the applicant, to the condition that it is established that there are no implementing measures.
88      It is therefore necessary to determine in the present case, in accordance with the case-law pursuant to which regard must be had to the position of the person pleading the right to bring proceedings and reference should be made exclusively to the subject matter of the action (judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraphs 30 and 31; orders of 12 January 2017, Amrita and Others v Commission, C‑280/16 P, not published, EU:C:2017:9, paragraphs 36 and 37; and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 61), whether the contested regulation, the purpose of which is to impose anti-dumping duties to be paid by importers, entails implementing measures vis-à-vis the applicant’s members, who are importers of the product concerned in the present case.
89      It is apparent from settled case-law, initiated on the basis of the provisions of the former Customs Code and reproduced pursuant to the provisions of the new Customs Code, which are applicable in the present case, that regulations which impose definitive anti-dumping duties entail implementing measures vis-à-vis the importers liable to pay those duties consisting of the communication or notification to the importer of the customs debt to which those duties give rise (judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraphs 38 and 39; orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 72, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 66).
90      In order to implement Article 14(1) of the basic regulation, under which definitive anti-dumping duties are to be collected by Member States (order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 64), Article 101(1) of the new Customs Code provides that ‘the amount of import or export duty payable shall be determined by the customs authorities responsible for the place where the customs debt is incurred’, without any exception for definitive anti-dumping duties being provided for in that regard. In addition, pursuant to Article 104(1) of that code, the customs authorities referred to in Article 101 are to enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that latter provision. Lastly, Article 102 of that Customs Code provides, in paragraph 1, that the customs debt is to be notified to the debtor by the customs authorities in the form prescribed at the place where the customs debt is incurred, and states, in paragraph 2, that where the amount of duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities is to be equivalent to notifying the debtor of the customs debt.
91      Contrary to what the applicant claims, it cannot therefore be inferred from the amendment of the customs legislation that, under the new Customs Code, which is applicable in the present case, regulations imposing definitive anti-dumping duties no longer entail implementing measures vis-à-vis importers. That is all the more so since the provisions of the new Customs Code, referred to in paragraph 90 above, differ very little from those previously in force. The determination of the amounts of duty by the national customs authorities, the communication of those amounts to the debtor by those authorities and the fact that release of the goods is equivalent to communicating the customs debt to the debtor where the amount of that debt is equal to the amount declared by the importer were already provided for by Articles 217 and 221 of the former Customs Code.
92      Those considerations are not called into question by the applicant’s argument that that analysis fails to take account of the introduction in the new Customs Code of ‘electronic systems’ for the purposes of implementing that code.
93      It is indeed apparent from Article 6(1) of the new Customs Code that ‘exchanges of information, such as declarations, applications or decisions, between customs authorities and between economic operators and customs authorities … as required under the customs legislation, shall be made using electronic data-processing techniques’.
94      Nevertheless, as is apparent from the very wording of that provision and as is also apparent from the provisions of the new Customs Code referred to in paragraph 90 above, this computerisation concerns exchanges between economic operators and customs authorities and does not as such mean, in any case, that imports of products and the payment of anti-dumping duties now involve only economic operators without any subsequent involvement by national customs authorities.
95      The contested regulation can have effect only after the importer makes a customs declaration (see, a contrario, judgment of 14 January 2016, Doux v Commission, T‑434/13, not published, EU:T:2016:7, paragraphs 60 to 64), which is itself necessarily followed by a measure adopted by the national customs authorities. It is true that, in most cases and where there is no control, that measure is merely an electronic communication, consisting of the generation, by the electronic customs system, which is the responsibility of the national customs authorities, of a decision accepting the customs declaration submitted, that acceptance taking the form of a code corresponding to release and allowing the goods concerned to be released for free circulation, and that the involvement of those authorities in the form of a control, followed in that event by communication of the results of the control and any rectified amount of the duty payable, is more frequent. However, even where the national authorities’ involvement is limited to that electronic communication, the fact remains that a measure is thus adopted by those authorities. The absence of control of the applicant’s goods, relied on by that applicant in the present case, is therefore irrelevant.
96      The applicant’s claim that the national customs authorities are left with no discretion in their implementation of the contested regulation where they opt not to carry out a control is also irrelevant. According to settled case-law, lack of discretion is a factor to be examined for the purpose of determining whether the condition that an applicant is directly concerned has been satisfied, which, in accordance with the wording of the fourth paragraph of Article 263 TFEU, constitutes a condition that is distinct from the requirement for an act which does not entail implementing measures (see, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 54 and the case-law cited; orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 74 and the case-law cited, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 70).
97      In addition, to infer from the automation introduced by the new Customs Code that the contested regulation does not entail implementing measures would amount to making the assessment of the legal criterion of there being no implementing measures for an act subject to purely technical circumstances. Moreover, the fact that the regular import customs clearance procedure is thus simplified does not mean that no measure is taken by the customs authorities (see, to that effect, orders of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraph 61, and of 5 February 2013, BSI v Council, T‑551/11, not published, EU:T:2013:60, paragraph 49).
98      Lastly, it should be noted that it is apparent from Article 44 of the new Customs Code, as, moreover, from the provisions previously in force (Articles 243 to 245 of the former Customs Code), that decisions relating to the application of the customs legislation, taken by the customs authorities, may be appealed, in accordance with the procedure laid down for that purpose by the Member State in question pursuant to that provision. In the context of those proceedings, the illegality of the regulation imposing anti-dumping duties may be pleaded, where appropriate, before the national courts, which may, before giving judgment, have recourse to the provisions of Article 267 TFEU (see, to that effect, order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraphs 67 and 68 and the case-law cited).
99      It follows from the foregoing that the contested regulation entails implementing measures vis-à-vis the applicant’s members.
100    It follows that the applicant’s members do not have standing to bring proceedings against the contested regulation and that, consequently, the applicant, representing the interests of its members, is not entitled to bring proceedings on that basis, in accordance with the case-law referred to in paragraph 16 above and, more particularly, with the first situation referred to in that paragraph.
Admissibility of the applicant’s action for the purposes of defending its own interests
101    The Commission contends that, since the applicant is a trade association representing the interests of several importers, traders and processors of the product concerned in the present case, it must establish, in order to be entitled to bring proceedings as such, that the role played by it in the proceeding which led to the adoption of the contested regulation justifies the admissibility of its action, even when its members are not directly and individually concerned by that act, in particular where its position as negotiator has been affected by the latter.
102    In the present case, according to the Commission, the applicant has neither claimed nor demonstrated that its role as an interested party in the expiry review investigation was affected by the contested regulation. In particular, the applicant did not come forward within the time limit fixed in the Notice of Initiation for interested parties to participate in the investigation. Only one of its members came forward within that period, but subsequently remained inactive. The applicant and its members participated in the investigation only after the final disclosure (see paragraph 7 above), that is to say at a very late stage in the proceeding and their intervention did not play any meaningful role in the investigation’s outcome. Moreover, the fact that the applicant participated in the investigation which led to the contested regulation and submitted observations to the Commission during that investigation, on behalf of its members, does not confer on the applicant any particular role in that proceeding.
103    The applicant refers to its objective, as set out in its statute, to its participation in the adoption of the contested regulation and to the judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 21 to 24).
104    In that regard, first, it should be borne in mind that the role played by an association in a proceeding which led to the adoption of an act within the meaning of Article 263 TFEU may justify the admissibility of the action brought by the association, even though its members are not directly and individually concerned by that act, especially where its position as negotiator has been affected by the latter (see, to that effect, judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission, 67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 21 and 22; of 24 March 1993, CIRFS and Others v Commission, C‑313/90, EU:C:1993:111, paragraphs 29 and 30; and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 88 and the case-law cited).
105    The application of the case-law referred to in paragraph 104 above presupposes that the association in question is in a particular situation in which it occupies a clearly circumscribed position as negotiator which is intimately linked to the actual subject matter of the contested decision, thus placing it in a factual situation which distinguishes it from all other persons (see, to that effect, judgment of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 87 and the case-law cited, and order of 29 March 2012, Asociación Española de Banca v Commission, T‑236/10, EU:T:2012:176, paragraph 43 and the case-law cited).
106    In the judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 20 to 24), the Court of Justice recognised the standing to bring proceedings of a professional public-interest body, the Landbouwschap, which had not only taken an active part in the proceeding, in particular by submitting written observations to the Commission, but also negotiated, in the interests of the professionals concerned, gas tariffs, which were subsequently considered by the Commission to be aid incompatible with the internal market, and which was, in that capacity, one of the parties to the contract which established the tariffs disallowed by the Commission.
107    In the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 29 and 30), the Court of Justice recognised the standing to bring proceedings of a trade association, the Comité international de la rayonne et des fibres synthétiques (International Rayon and Synthetic Fibres Committee) (‘CIRFS’), which had not only played an active part in the proceeding, but also acted as negotiator in the context of the introduction of the ‘discipline’ designed to circumscribe the grant of the aid in question to the industry concerned.
108    The applicant has in no way shown what its alleged role as a ‘negotiator’ consisted of. Moreover, it did not expressly refer to itself as negotiator. It merely referred to the judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 21 to 24). In any event, as regards its role during the proceeding which led to the adoption of the contested regulation, it cannot be equated with that of the Landbouwschap or CIRFS in the cases mentioned in paragraphs 106 and 107 above. It has been held that the applicant’s situation as a representative association under the basic regulation is not comparable to the exceptional situation of a negotiator acting formally on behalf of its members (judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 105).
109    Secondly, in so far as, by its arguments based on its participation in the proceeding which led to the adoption of the contested regulation, the applicant seeks to pursue the defence of its own interests, they must be rejected on the same grounds as those set out in paragraphs 49 to 54 above.
110    Furthermore, it cannot be found that the applicant, as such, is directly concerned by the contested regulation in so far as it imposes anti-dumping duties. The imposition of anti-dumping duties has not altered the applicant’s legal position individually since, in particular, it did not impose any obligation on the applicant, given that that association is not required to pay that duty individually (see, to that effect, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 105). In addition, the applicant itself has claimed that it is directly affected by the contested regulation only as a representative of its members. In the absence of direct concern to it, an essential condition under the second and third limbs of the fourth paragraph of Article 263 TFEU, the applicant cannot have standing to bring proceedings.
111    It follows that the present action must be dismissed as inadmissible.
The application to intervene
112    Pursuant to Article 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved.
113    In the present case, since the action has been dismissed in its entirety as inadmissible, there is no longer any need to rule on Eurofer’s application to intervene, in accordance with Article 142(2) of the Rules of Procedure.
Costs
114    Under Article 134(1) 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.
115    Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
116    In addition, pursuant to Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties are each to bear their own costs relating to the application to intervene. Consequently, the applicant, the Commission and Eurofer must bear their own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no longer any need to adjudicate on the European Steel Association (Eurofer)’s application to intervene.
3.      European Association of Non-Integrated Metal Importers & distributors (Euranimi) shall pay the costs.
4.      Euranimi, the European Commission and Eurofer shall each bear their own costs relating to Eurofer’s application to intervene.
Luxembourg, 8 December 2022.
E. Coulon
G. De Baere
Registrar
President
*      Language of the case: English.