JUDGMENT OF THE GENERAL COURT (Second Chamber)
20 May 2015 (*)
(Dumping — Imports of oxalic acid originating in India and China — Definitive anti-dumping duty — Community industry — Determination of injury — Article 9(4), Article 14(1) and Article 20(1) and (2) of Regulation (EC) No 1225/2009 — Obligation to state reasons — Right to make representations — Article 20(5) of Regulation (EC) No 1225/2009)
In Case T‑310/12,
Yuanping Changyuan Chemicals Co. Ltd, established in Yuan Ping (China), represented by V. Akritidis, lawyer,
applicant,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, and initially by N. Chesaites, Barrister, and G. Berrisch, lawyer, and subsequently by D. Geradin, lawyer,
defendant,
supported by
European Commission, represented by M. França and A. Stobiecka-Kuik, acting as Agents,
intervener,
APPLICATION for annulment of Council Implementing Regulation (EU) No 325/2012 of 12 April 2012 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of oxalic acid originating in India and the People’s Republic of China (OJ 2012 L 106, p. 1),
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 15 July 2014,
gives the following
Judgment
Legal context
WTO Rules
1        Article VI.1 of the General Agreement on Tariffs and Trade (‘GATT’) states that ‘[t]he contracting parties recognise that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry …’.
2        The Agreement on Implementation of Article VI of the GATT 1994 (OJ 1994 L 336, p. 103) (‘the anti-dumping agreement’) is contained in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3).
3        Article 1 of the anti-dumping agreement provides:
‘An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT … and pursuant to investigations initiated … and conducted in accordance with the provisions of this Agreement …’
4        Article 3.1 of the anti-dumping agreement provides: ‘[a] determination of injury for purposes of Article VI of GATT … shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products’.
5        Article 3.4 of the anti-dumping agreement provides as follows:
‘The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilisation of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments [; t]his list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.’
6        Article 4.1 of the anti-dumping agreement is worded as follows:
‘For the purposes of this Agreement, the term “domestic industry” shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products …’
7        Article 4.3 of the anti-dumping agreement is worded as follows:
‘Where two or more countries have reached … such a level of integration that they have the characteristics of a single, unified market, the industry in the entire area of integration shall be taken to be the domestic industry referred to in paragraph 1.’
8        Articles 6.6, 6.8 and 6.9 of the anti-dumping agreement provide:
‘6.6      Except in circumstances provided for in paragraph 8, the authorities shall during the course of an investigation satisfy themselves as to the accuracy of the information supplied by interested parties upon which their findings are based.
…
6.8      In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available …
6.9      The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.’
9        Article 9.1 of the anti-dumping agreement provides as follows:
‘… It is desirable … that the [dumping] duty be less than the [dumping] margin if such lesser duty would be adequate to remove the injury to the domestic industry.’
EU law
10      Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51; corrigendum at OJ 2010 L 7, p. 22) (‘the basic regulation’) constitutes the basic anti-dumping legislation. It replaced Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended.
11      According to Article 1(1) of the basic regulation:
‘An anti-dumping duty may be applied to any dumped product whose release for free circulation in the [European Union] causes injury.’
12      Article 3(1) and (2) of the basic regulation provides:
‘1.      Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.
2.      A determination of injury shall be based on positive evidence and shall involve an objective examination of both:
(a)      the volume of the dumped imports and the effect of the dumped imports on prices in the [EU] market for like products; and
(b)      the consequent impact of those imports on the Community industry.’
13      Article 3(5) of that regulation provides:
‘The examination of the impact of the dumped imports on the Community industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity; factors affecting [EU] prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.’
14      Article 4(1) of the basic regulation provides:
‘For the purposes of this Regulation, the term “Community industry” shall be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Community production of those products …’
15      Article 5(4) of the basic regulation states:
‘An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Community producers of the like product, that the complaint has been made by or on behalf of the Community industry. The complaint shall be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated when Community producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the Community industry.’
16      Article 6(1) and (8) of the basic regulation provides:
‘1.      Following the initiation of the proceeding, the Commission, acting in cooperation with the Member States, shall commence an investigation at Community level. Such investigation shall cover both dumping and injury and these shall be investigated simultaneously. For the purpose of a representative finding, an investigation period shall be selected which, in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of the proceeding. Information relating to a period subsequent to the investigation period shall, normally, not be taken into account.
…
8.      Except in the circumstances provided for in Article 18, the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.’
17      According to Article 9(4) of the basic regulation:
‘… The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.’
18      Article 14(1) of the basic regulation reads as follows:
‘Provisional or definitive anti-dumping duties shall be imposed by Regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the Regulation imposing such duties. Such duties shall also be collected independently of the customs duties, taxes and other charges normally imposed on imports. No product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation.’
19      Article 16(1) of the basic regulation is worded as follows:
‘The Commission shall, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations and to verify information provided on dumping and injury. In the absence of a proper and timely reply, a verification visit may not be carried out.’
20      Article 18(1) and (5) of the basic regulation provides:
‘1.      In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits provided in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made of facts available. Interested parties should be made aware of the consequences of non-cooperation.
…
5.      If determinations, including those regarding normal value, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time-limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation …’
21      Article 20 of the basic regulation states:
‘1.      The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.
2.      The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.
…
4.      … Disclosure shall not prejudice any subsequent decision which may be taken by the Commission or the Council but, where such decision is based on any different facts and considerations, these shall be disclosed as soon as possible.
5.      Representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter.’
Background to the dispute
22      The applicant, Yuanping Changyuan Chemicals Co. Ltd, is a company established in Yuan Ping (China) which produces and exports oxalic acid.
23      On 13 December 2010, the European Chemical Industry Council (CEFIC) lodged a complaint on behalf of a producer, Oxaquim SA, established in Spain and representing more than 25% of the total EU production of oxalic acid, alleging that oxalic acid produced in China and India was being exported to the European Union at dumped prices (recital 2 of the contested regulation; recital 2 of the provisional regulation).
24      Two other producers of oxalic acid are referred to in the complaint: Clariant, a French undertaking which obtained oxalic acid as a by-product of the manufacturing process, and Borsod Chem-MCHZ (‘Borsod’), an undertaking established in the Czech Republic which ceased to produce oxalic acid in 2008 at the latest.
25      On 10 January 2011, the Commission sent letters to Oxaquim and Clariant requesting them to set out their position on the possible initiation of an anti-dumping proceeding. Oxaquim and Clariant confirmed that they were producers of oxalic acid. Oxaquim supported the opening of a proceeding while Clariant took a neutral position.
26      On 26 January 2011, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of oxalic acid originating in India and the People’s Republic of China (OJ 2011 C 24, p. 8) (recital 1 of the provisional regulation).
27      In paragraph 5 of the notice of initiation, the Commission stated that it had concluded, after consulting the Advisory Committee, that the complaint had been lodged by or on behalf of the EU industry and that there was sufficient evidence to justify the initiation of a proceeding.
28      By letter of 26 January 2011, the Commission informed Oxaquim of the initiation of the anti-dumping proceeding. That letter contained in an annex a questionnaire and a copy of the notice of initiation. The Commission requested Oxaquim to return the duly completed questionnaire by no later than 4 March 2011. It added that a response to the questionnaire was not mandatory but that the lack of a response within the prescribed period would be deemed to constitute non-cooperation.
29      By two letters dated 2 February 2011, the Commission also informed Clariant and Borsod of the initiation of the anti-dumping proceeding. A copy of the notice of initiation was annexed to those letters. Moreover, referring to the notice of initiation, the Commission stated that all EU producers and all associations of EU producers were invited to contact the Commission not later than 15 days after publication of the notice in order to request a questionnaire. Furthermore, the Commission pointed out that those producers could make known their views, submit information and provide evidence up to 4 March 2011.
30      Subsequently, Oxaquim cooperated with the Commission and responded to the latter’s detailed questionnaire. Clariant and Borsod did not cooperate.
31      On 19 October 2011, the Commission adopted Regulation (EU) No 1043/2011 imposing a provisional anti-dumping duty on imports of oxalic acid originating in India and the People’s Republic of China (OJ 2011 L 275, p. 1) (‘the provisional regulation’). That regulation, published on 20 October 2011, imposed a provisional, individual anti-dumping duty of 14.6% on the applicant.
32      It is clear from recital 9 of the provisional regulation that the investigation of dumping and injury covered the period from 1 January 2010 to 31 December 2010 (‘the investigation period’) and that the examination of the trends relevant for the assessment of injury covered the period from 1 January 2007 to the end of the investigation period (‘the period considered’).
33      In recital 50 of the provisional regulation, the Commission concluded that Oxaquim and Clariant constituted the EU industry for the purposes of Article 4(1) of the basic regulation.
34      As regards the data used to analyse the injury, it is clear from recital 70 of the provisional regulation that the Commission drew a distinction between macroeconomic indicators and microeconomic indicators. It analysed the macroeconomic indicators for the period considered on the basis of the data relating to the three producers, namely Oxaquim, Clariant and Borsod (recitals 72, 74 and 76 of the provisional regulation), whereas the microeconomic indicators were assessed on the basis of verified data set out in the questionnaire submitted by Oxaquim (recital 83 of the provisional regulation).
35      On 20 October 2011, the Commission communicated its provisional findings to the applicant.
36      By e-mail sent to the Commission on 10 November 2011, the applicant, referring to the provisional findings, raised five questions. Among those questions, the applicant first challenged the inclusion in the macroeconomic indicators of the data concerning the third producer, which had ceased operations in 2008, given that, in the applicant’s view, that producer did not form part of the EU industry. Secondly, it sought to ascertain how the normal customs duty of 6.5% had been incorporated in the injury calculations.
37      By e-mail of 15 November 2011, the Commission replied to those questions. First, it stated as follows regarding the third operator taken into account in connection with the macroeconomic indicators: ‘The data regarding a third EU producer having ceased its operations in 2008 [were] included in the macro indicators’ and ‘in this regard, [the applicant should have noted] that this issue, which [was] covered in recitals 50 and 51 of the provisional disclosure document, [would] be clarified at a later stage of the proceeding’. It stated that, ‘[w]ith regard to the individual data from the two EU producers, [the applicant should have] note[d] that this data [could not] be disclosed for confidential reasons’. Secondly, as regards the taking into account of the normal customs duty of 6.5%, the Commission invited the applicant to raise that issue in the context of its formal comments.
38      In its response of 21 November 2011 to the provisional findings, the applicant, in particular, pointed out, first, that the data relating to the production, total capacity, sales volumes and market share of the EU industry, referred to in recitals 72 and 76 to 78 and in tables 4 and 5 of the provisional regulation, included data relating to 2007 and 2008 from a company that did not form part of the EU industry. The same was true of the data relating to employment, productivity and wages, referred to in recitals 79 to 81 and in table 6 of the provisional regulation. Furthermore, it stated that the microeconomic injury indicators, referred to in tables 7 to 12 of the provisional regulation and relating solely to Oxaquim, showed positive trends. Secondly, the applicant complained that the calculation of the injury margin did not take into account the normal customs duty of 6.5% applicable to imports of oxalic acid. Thirdly, the applicant requested the Commission to explain the manner in which the profit margin of 8% was determined or to apply a profit margin of 5%, as is standard practice in the case of basic chemical products. That point, it stated, was particularly important, given that the profits of the EU industry were already 7.2%. Finally, it requested a hearing in order to address those issues.
39      That hearing, in the presence of the Commission services and the applicant’s legal adviser, was held on 7 December 2011.
40      On 2 February 2012, the Commission sent the applicant and the other interested parties the final disclosure document by registered post and asked them to submit their comments by no later than 13 February 2012.
41      On 3 February 2012, the Commission also sent the final disclosure document by e-mail to the applicant and to the other interested parties. However, the e-mail address of the applicant’s legal adviser was mistakenly entered incorrectly and that e-mail was not received by the applicant.
42      On 7 February 2012, the applicant’s legal adviser sent an e-mail to the Commission to inform it that he had just received the final disclosure document by post and asked for the deadline for responding to be extended until 17 February 2012.
43      By e-mail of 8 February 2012, the Commission initially refused to extend the deadline. On 10 February 2012 the applicant reiterated its request, referring to the minimum period of 10 days for making representations on the final disclosure provided for by Article 20(5) of the basic regulation. By e-mail of the same date, the Commission granted an exceptional extension of the deadline until 10 a.m. on 14 February 2012.
44      By e-mail of 13 February 2012, the applicant asked to consult the Commission’s case-file on the morning of 14 February and to submit its comments on the final disclosure document at close of business on that same day. The Commission responded on the same day, granting that brief extension of the deadline.
45      With regard to the content of the final disclosure document, the Commission, in recitals 57 and 69 of that document, explained that, contrary to what was stated in recitals 50 and 51 of the provisional regulation, the EU industry comprised three producers and that it was justified in including all the data pertaining to the producer which had ceased production of oxalic acid in 2008 for the purposes of the injury analysis. In recital 58 of that document, it pointed out that that producer had stated that it had ceased the production of the like product for ‘internal reasons’ without giving any further explanation and that one exporting producer had concurred with this explanation.
46      Moreover, in recital 66 of the final disclosure document, the Commission stated as follows:
‘An exporting producer argued that the Commission failed to include an allowance of 6.5% corresponding to the normal customs duty in the injury margin calculation. As the duty was underestimated for some imports that were delivered to one EU customer on a duty-paid basis, this claim was found to be partially correct, and the injury margins calculations were corrected accordingly. However, this had no significant impact on the proposed definitive measures …’
47      Lastly, in recital 88 of the final disclosure document, the Commission concluded that the applicant’s injury margin amounted to 19.5% and the dumping margin to 14.6%.
48      On 14 February 2012, the applicant submitted its comments on the final disclosure document. In particular, it observed that Oxaquim was the sole producer constituting the EU industry. In its view, Clariant had to be excluded from the definition of the EU industry because it had not cooperated in the proceeding. Borsod, the name of which was not referred to either in the provisional regulation or in the final disclosure document, ought also to be excluded, for it too had failed to cooperate and it was not a producer of oxalic acid. Moreover, the applicant pointed out that the macroeconomic indicators were not reliable, being based on an ill-defined EU industry. It also reiterated that the microeconomic injury indicators, which concerned only Oxaquim, showed a positive trend. The applicant also criticised the fact that no explanation was provided with regard to the target profit margin, estimated at 8%, and that the Commission had not correctly examined the account taken of the 6.5% customs duty. In that regard, the applicant noted that the Commission’s reference in recital 66 of the final disclosure document to ‘some imports that were delivered to one EU customer on a duty-paid basis’ was incomprehensible and, in any event, did not apply to the applicant, since none of its sales were made on a ‘duty-paid’ basis. It pointed out that the customs duty of 6.5% had to be added to its CIF (costs, insurance, freight) prices at the time of each transaction, failing which a fair comparison with the ex-works prices of the EU industry would not be possible. Finally, the applicant requested a hearing in the presence of the hearing officer.
49      On 22 February 2012, a hearing was held in the presence of the applicant and the Commission services during which the applicant repeated several comments concerning: (i) the Commission’s failure to observe the minimum period of 10 days for the response to the final disclosure document, (ii) the composition of the EU industry and in particular the reliability of the macroeconomic indicators, (iii) the profitability of the EU industry and, in particular, the profit margin of 8%, and (iv) the customs duty of 6.5%.
50      At the hearing, the Commission responded, with respect to the applicant’s first comment, that, in accordance with its practice, the starting point for the 10-day period was the date on which the final disclosure document was issued. Since it had sent that document on 2 February and 12 February was a Sunday, it had set 13 February as the deadline for making representations. It added that, from a practical point of view, the applicant had been in a position to submit its comments in good time.
51      As regards the applicant’s second comment, the Commission first stated that the macroeconomic injury analysis was based on all EU producers. It considered that that approach was the best way to get an accurate view of market developments during the period considered and that the inclusion of all producers made it possible to analyse the EU industry as a whole in accordance with the requirements of the basic regulation. It then noted the importance of the distinction between microeconomic and macroeconomic indicators. It explained that it used the specific figures of companies cooperating in the investigation for the microeconomic analysis, while, for the analysis of the general situation, reliable macroeconomic data were usually available at association level. In particular, the Commission confirmed that the macroeconomic data used for Clariant and Borsod were set out in the complaint lodged by CEFIC on 13 December 2010. It added that non-confidential summaries were available in the public file and that ranges were given in the provisional regulation.
52      With regard to the applicant’s third comment, the Commission disputed the applicant’s claim that the profitability of the EU industry had been 7.2% during the investigation period. As the applicant was not in possession of all the necessary data, its calculation could not, the Commission submitted, be correct. The Commission stated that it was unable to disclose more data without breaching the confidentiality rules.
53      With regard to the applicant’s fourth comment, the Commission asserted that the customs duty of 6.5% was included in the fixed adjustment of EUR 56.81 per tonne. It pointed out that that amount was an average of the customs duties and other post-importation costs, calculated on the basis of data received from importers that had cooperated, and stated that it agreed to recheck its calculation.
Contested regulation
54      On 12 April 2012, the Council of the European Union adopted Implementing Regulation (EU) No 325/2012 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of oxalic acid originating in India and the People’s Republic of China (OJ 2012 L 106, p. 1; ‘the contested regulation’).
55      As regards the definition of the EU industry, the Council stated, in recital 57 of the contested regulation, first, that, ‘contrary to what was stated in recitals 50 and 51 of the provisional Regulation, there were in fact three producers of the product concerned in the Union during the period considered’, that they ‘constitut[ed] the Union industry within the meaning of Article 4(1) of the basic Regulation’ and that they ‘represent[ed] 100% of the Union production’ and, secondly, that ‘the claim that figures pertaining to the non-cooperating producer and the third Union producer having ceased its operation in 2008 should [have been] disregarded [had been] rejected, as it [was] correct to include all known figures related to the period considered for the purpose of the injury analysis in order to achieve the best informed representation of the economic situation of the Union industry as prescribed in Article 4(1) of the basic Regulation’.
56      In recital 58 of the contested regulation, the Council noted that the reasons for which the third producer had ceased its production of the product at issue had been examined during the investigation and that that ‘company [had] simply invoked the fact that it had stopped the production of the like product for “internal reasons” without giving any further explanations’. In addition, the Council stated that one exporting producer had confirmed that explanation, thereby contradicting the information provided by the complainant according to which the decision to stop the production of oxalic acid was due to the dumping practices. The Council added that ‘[h]owever, the exporting producer [had] not provide[d] any different information with regard to the alleged production figures related to this third Union producer’ and that ‘[t]herefore, this issue [did] not devaluate the fact that the data related to that third EU producer could [have been] used in the current investigation’.
57      As regards the injury margin calculation, the Council noted in recital 66 of the contested regulation that, ‘[a]s mentioned in recital 144 of the provisional regulation … the average import prices of the cooperating exporting producers in the PRC and India [had] been duly adjusted for importation costs and customs duties’. In that context, the Council stated:
‘An exporting producer argued, however, that the Commission failed to include fully an allowance of 6.5% corresponding to the normal customs duty in the injury margin calculation. This claim was found to be warranted and the injury margins calculations were corrected accordingly for this exporting producer, as well as for the other cooperating exporting producers. However, this had no impact on the proposed definitive measures …’
58      In recital 73, the Council concluded, confirming the assessment of the injury indicators applied in recitals 94 to 98 of the provisional regulation, that the EU industry had suffered material injury within the meaning of Article 3(5) of the basic regulation.
59      In recital 87 of the contested regulation, the Council set the applicant’s injury margin at 18.7%.
60      Lastly, Article 1(2) of the contested regulation imposed a definitive, individual anti-dumping duty of 14.6% on the applicant. That rate corresponds to the applicant’s definitive dumping margin, as defined in recitals 54 and 87 of the contested regulation.
Procedure and forms of order sought
61      The applicant brought the present action by application lodged at the Court Registry on 12 July 2012.
62      On 19 July 2012, the Council received notification of the application.
63      By document lodged at the Court Registry on 5 September 2012, the Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council. The parties did not oppose that request.
64      The Council submitted its statement of defence to the Court Registry by fax on Friday 28 September 2012. On Monday 1 October 2012, the Council sent the original by registered post through the Belgian postal service.
65      The original of the Council’s defence was received at the Court Registry on 10 October 2012, that is to say, outside the period provided for in Article 43(6) of the Rules of Procedure of the General Court.
66      In its letters of 11 October and 9 November 2012, the Council argued that it had acted with all due diligence and that the delay in the dispatch of the original of the statement of defence was attributable to an error on the part of the postal service.
67      On 19 November 2012, the Eighth Chamber of the Court decided that, in view of the existence of a case of force majeure, the statement of defence should be included in the file.
68      In its reply, lodged at the Court Registry on 8 January 2013, the applicant nevertheless requested that the Court reject the statement of defence under Article 45 of the Statute of the Court of Justice of the European Union. Moreover, it noted that it was for the General Court to decide whether or not it was appropriate to close the written procedure and give judgment by default.
69      In its rejoinder, lodged at the Court Registry on 7 March 2013, the Council requested that the Court reject those pleas.
70      By order of 26 November 2012, the President of the Eighth Chamber of the Court granted the application to intervene.
71      On 7 January 2013, the Commission lodged a statement in intervention.
72      On 8 March 2013, the applicant lodged a reply to the Commission’s statement in intervention.
73      Following a change in the composition of the chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which the present case was consequently assigned.
74      Upon hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure. By way of measures of organisation of procedure, it sent to the parties a question to be answered orally at the hearing.
75      The parties presented oral argument and replied to the questions put by the Court at the hearing on 15 July 2014.
76      The applicant claims that the Court should:
–        annul the contested regulation in so far as it relates to the applicant;
–        order the Council to pay the costs;
–        order the Commission to pay the costs relating to its intervention.
77      The Council and the Commission contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
78      In support of its action, the applicant puts forward four pleas in law. The first plea alleges infringement of Article 3 and Article 4(1) of the basic regulation, in that the Council committed an error in defining the EU industry. The second plea alleges infringement of Article 3(2) and (5) of the basic regulation, in that the Commission committed a manifest error in the assessment of injury to the EU industry. The third plea alleges infringement of Article 9(4), Article 14(1) and Article 20(1) and (2) of the basic regulation, in that the Council failed to carry out a proper assessment and its decision does not contain an adequate statement of reasons. Lastly, the fourth plea alleges an infringement of Article 20(5) of the basic regulation and an infringement of the principles of non-discrimination and sound administration, in that the Commission failed to respect the applicant’s right to submit written comments on the final disclosure within a minimum period of 10 days. As a preliminary point, the applicant asks the Court to consider the need to give judgment by default on the ground that the statement of defence was lodged out of time.
The need to give judgment by default
79      The applicant submits that it is for the Court to decide whether or not it is appropriate to give judgment by default, since the Council lodged its statement of defence out of time without being able to rely validly on unforeseen circumstances or force majeure.
80      First of all, it must be noted that Article 122 of the Rules of Procedure provides that ‘[i]f a defendant … fails to lodge a defence to the application in the proper form within the time prescribed, the applicant may apply to the General Court for judgment by default’. However, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, ‘[n]o right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure’.
81      In the first place, it is common ground that the defence was not submitted within the period prescribed.
82      In that regard, it must be noted that, under Article 46(1) of the Rules of Procedure, the defendant must lodge a defence within two months after service on him of the application. Moreover, Article 102(2) of the Rules of Procedure provides that the prescribed time-limits are to be extended on account of distance by a single period of 10 days. Since the application was notified to the Council on 19 July 2012, the period for lodging the defence expired on 1 October 2012.
83      In the present case, the defence was submitted to the Court Registry by fax on 28 September 2012, before the period expired. However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Court Registry by fax is to be deemed to be the date of lodgment for the purposes of compliance with procedural time-limits only if the signed original of the pleading is lodged at the Registry no later than 10 days following receipt of the fax.
84      The signed original of the defence was received at the Court Registry on 10 October 2012, that is to say, 12 days after the fax had been lodged. In those circumstances, the date on which the defence was lodged by fax cannot be taken into account for the purposes of compliance with the time-limit. It follows that the date on which the signed original was lodged, namely 10 October 2012, must alone be taken into account for the purposes of compliance with the time-limit at issue. Since that time-limit passed on 1 October 2012, the defence was out of time.
85      In the second place, the applicant submits that the late submission of the defence is not attributable to the existence of unforeseen circumstances or force majeure. In its view, the Council failed to make any enquiry about the time of delivery of the original documents and only became aware that they had been submitted out of time through the Registry itself. In support of its line of argument, the applicant refers to, inter alia, the order in Case C‑242/07 P Belgium v Commission [2007] ECR I‑9757, the judgment in Case C‑426/10 P Bell & Ross v OHIM [2011] ECR I‑8849, and the order of 12 December 2011 in Case T‑365/11 P AO v Commission, not published in the ECR.
86      It is apparent from the case-law that the strict application of those procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. In accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, no derogation from the procedural time-limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure (see, to that effect, order in Belgium v Commission, cited in paragraph 85 above, paragraph 16; judgment in Bell & Ross v OHIM, cited in paragraph 85 above, paragraph 43; and order in AO v Commission, cited in paragraph 85 above, paragraph 31).
87      The Court of Justice has held that the concepts of force majeure and unforeseeable circumstances contain an objective element relating to abnormal circumstances unconnected with the trader in question and a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (judgment in Case C‑195/91 P Bayer v Commission [1994] ECR I‑5619, paragraph 32; order in Belgium v Commission, cited in paragraph 85 above, paragraph 17).
88      First of all, in assessing the facts of the case, it should be noted that the case-law cited by the applicant relates to the lateness of an originating application, the period for the submission of which, set for the purposes of legal certainty, cannot by its nature be extended, and not to a defence, at issue in the present case, the period for the submission of which ‘may, in exceptional circumstances, be extended by the President on a reasoned application by the defendant’, pursuant to Article 46(3) of the Rules of Procedure.
89      Next, it must be noted that, in the present case, the Council sent the defence to the Court by fax on the afternoon of Friday 28 September 2012. On the next working day, Monday 1 October, the Council sent the original by registered post through the Belgian postal service. The Council therefore acted with all due diligence in order to make it possible for the original, in ordinary circumstances, to reach the Court Registry no later than 10 days following receipt of the fax. While the original of the defence did not arrive until 10 October 2012, that delay in dispatch was attributable to abnormal circumstances, unconnected with the Council’s services. As is apparent from the letter of 31 October 2012 from the Belgian postal service, the delay in delivery was due to a mistake by its services. The Belgian postal service stated, in particular, that it had sent the consignment in error to Italy, from where it was sent on to Luxembourg.
90      In addition, the Council is not precluded from relying on the exceptional malfunctioning of the Belgian postal service as a case of force majeure inasmuch as, if it had enquired with the postal service or the Registry, before the 10-day deadline expired, regarding the lodgment of the original documents, it could not have prevented those documents from arriving late.
91      First, the original document had already been sent to the wrong destination by the postal service and the Council could not have replaced it by another signed version of the defence in order to send it in sufficient time to the Court Registry. The original of a pleading, within the meaning of Article 43(6) of the Rules of Procedure, is only the pleading a copy of which has been sent by fax, as is apparent from point 7 of the Practice Directions to Parties before the General Court (OJ 2012 L 68, p. 23), which states that ‘[t]he signed original must be sent without delay, immediately after the dispatch of the copy, without any corrections or amendments, even of a minor nature, being made thereto’, with the result that, ‘[i]n the event of any discrepancy between the signed original and the copy previously lodged, only the date of lodging of the signed original will be taken into consideration’ (see, to that effect and by analogy, order of 3 October 2012 in Case T‑360/10 Tecnimed v OHIM — Ecobrands (ZAPPER-CLICK), paragraph 37).
92      Secondly, if the Council had sent a second version of the defence, the date of lodgment of that pleading would have had to have been taken into account. Given that the Council sent the original of the defence on 1 October 2012, namely the day on which the period for lodging the defence expired, it would not have been able to lodge a second version of that pleading before that period expired.
93      Since the period expired on 1 October 2012, the Council also could not have requested in sufficient time an extension of the period in order to prevent the original being lodged at the Court Registry out of time.
94      It follows from the foregoing that the Council was unable to comply with the period for lodging the defence because of the existence of force majeure. Consequently, the defence must be treated as if it had not been lodged out of time. The conditions for giving judgment by default are therefore not met.
The first plea in law, alleging infringement of Article 3 and Article 4(1) of the basic regulation, in that the Council committed an error in defining the EU industry
95      The applicant submits that the Council infringed Article 4(1) of the basic regulation by wrongly including Clariant and Borsod in the definition of the EU industry. It argues that Clariant and Borsod ought to have been excluded, on the ground that those companies had not cooperated in the investigation and, with respect to Borsod, on the ground that that company had ceased its production of the like product before the investigation period. In addition, the assessment of injury set out in the contested regulation is vitiated by an error, in so far as it is based, contrary to Article 3(1) and (2) of the basic regulation, on data relating to an ill-defined EU industry.
96      It must be stated that, in essence, that plea in law is based on the contention that the institutions should exclude from the definition of the EU industry, for the purposes of analysing injury, first, the producers which did not cooperate in the investigation and, secondly, the producers which manufactured the like product during the period considered, but not during or after the investigation period.
97      First of all, it must be noted that, under Article 3(1) of the basic regulation, ‘the term “injury” shall, unless otherwise specified, be taken to mean material injury to the [EU] industry’ and that Article 4(1) of the basic regulation defines the [EU] industry as ‘the [EU] producers as a whole of the like products’, namely as ‘those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total [EU] production of those [like] products’, it being understood that, in both cases, producers coming within the situations provided for in Article 4(1)(a) of the basic regulation may be excluded from the EU industry.
98      It must also be recalled that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (see judgment in Case C‑535/06 P Moser Baer India v Council [2009] ECR I‑7051, paragraph 85 and the case-law cited, and judgment of 28 November 2013 in Case C‑13/12 P CHEMK and KF v Council, paragraph 61).
99      In particular, the institutions enjoy a broad discretion as regards the choice between the two options provided for by Article 4(1) of the basic regulation.
100    In addition, it is settled case-law that the European Union Courts cannot intervene in assessments reserved to the European Union authorities but must restrict their review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate or whether there has been a manifest error of appraisal or a misuse of powers (see, to that effect, Case T‑164/94 Ferchimex v Council [1995] ECR II‑2681, paragraph 67; Case T‑210/95 EFMA v Council [1999] ECR II‑3291, paragraph 57; and Case T‑107/04 Aluminium Silicon Mill Products v Council [2007] ECR II‑669, paragraph 43).
101    In the present case, the Council found, in recital 57 of the contested regulation, that there were three producers of the like product in the European Union during the period considered constituting the EU industry, which represented 100% of the EU production. Consequently, the Council chose to define the EU industry, in the context of determining the injury, by means of the first option referred to in Article 4(1) of the basic regulation.
102    As regards the inclusion in the definition of the EU industry of a non-cooperating producer and the producer which ceased production before the investigation period, the Council took the view, also in recital 57 of the contested regulation, that it was ‘correct to include all known figures related to the period considered for the purpose of the injury analysis in order to achieve the best informed representation of the economic situation of the EU industry as prescribed in Article 4(1) of the basic Regulation’.
103    In the first place, as regards the question of inclusion in the EU industry, for the purposes of the analysis of injury, of producers which did not cooperate, it must be noted, first of all, that it is not apparent from the wording of Article 4(1) of the basic regulation that the concept of EU industry covers only the EU producers which participated in the investigation (see, to that effect, Case T‑35/01 Shanghai Teraoka Electronic v Council [2004] ECR II‑3663, paragraph 257). More specifically, the wording of that provision does not mean that all EU producers must cooperate in order for the institutions to be able to define the EU industry as all the EU producers of the like product.
104    Next, the concept of the ‘EU industry’ used for the purposes of determining injury does not necessarily have to comprise the same EU producers as those making up the EU industry taken into account in order to ascertain whether the original complaint or the request for a review enjoyed sufficient support in accordance with Article 5(4) of the basic regulation. In the second option provided for in Article 4(1) of the basic regulation, the EU industry may, in the light of the wording of Article 5(4) of that regulation, comprise only the EU producers supporting the complaint or request for a review, whereas, in the first option in Article 4(1) of the basic regulation, the definition may include all EU producers, regardless of whether they have expressed such support.
105    As regards, first, the initiation of the procedure, Article 5(4) of the basic regulation provides that ‘[a]n investigation shall not be initiated … unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by [EU] producers of the like product, that the complaint has been made by or on behalf of the [EU] industry’. As regards, secondly, the definition of the EU industry for the purposes of determining injury, it is important to bear in mind that that definition is formulated by the institutions after the procedure has been initiated and is not intended to ascertain whether or not the degree of support for the complaint justifies initiating the investigation.
106    More particularly, when the EU industry is defined in the context of determining injury in accordance with the first option referred to in Article 4(1) of the basic regulation as the ‘[EU] producers as a whole of the like products’, that definition serves as a basis for examining the economic situation of all the producers concerned. It follows that, not only under its wording but also according to its broad logic, the first option referred to in Article 4(1) of the basic regulation does not preclude producers which do not support the complaint or which do not cooperate in the investigation from being included in the definition of the EU industry.
107    That conclusion cannot be brought into question by the applicant’s argument that it is apparent from paragraph 108 of the judgment in Case T‑401/06 Brosmann Footwear (HK) and Others v Council [2010] ECR II‑671 that the EU producers which failed to cooperate during the investigation are to be excluded from the definition of the EU industry. In that regard, it is sufficient to note that that judgment was set aside by the judgment of 2 February 2012 in Case C‑249/10 P Brosmann Footwear (HK) and Others v Council.
108    In the second place, the applicant’s argument that the institutions should exclude, for the purposes of the injury analysis, the producer which manufactured the like product during the period considered, but not during or after the investigation period, cannot be upheld.
109    First, it must be noted that Article 6(1) of the basic regulation provides that the investigation is to ‘cover both dumping and injury’. It also states that, ‘[f]or the purpose of a representative finding, an investigation period shall be selected which, in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of the proceeding’ and that ‘[i]nformation relating to a period subsequent to the investigation period shall, normally, not be taken into account’.
110    Secondly, as stated in paragraph 98 above, the institutions have a broad discretion when evaluating complex economic situations. This is so in particular in the determination of the period to be taken into consideration for the purposes of determining injury in an anti-dumping proceeding (see, to that effect, Case C‑121/86 Epichirisseon Metalleftikon, Viomichanikon kai Naftiliakon and Others v Council [1989] ECR 3919, paragraph 20, and Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraph 86). Therefore, the Council may determine the injury suffered by the EU industry over a period longer than that covered by the investigation into the existence of dumping practices (see, to that effect, Nakajima v Council, paragraph 87).
111    In the present case, in accordance with recital 9 of the provisional regulation, confirmed in recital 3 of the contested regulation, the investigation period covered the period between 1 January 2010 and 31 December 2010 and the period considered covered that between 1 January 2007 and the end of the investigation period.
112    As is apparent from recitals 71 and 73 of the contested regulation, which confirmed, inter alia, recitals 69 to 98 of the provisional regulation, the institutions analysed most of the injury factors, as referred to in Article 3(5) of the basic regulation, in relation to the period considered, including the investigation period. In particular, it is stated in recital 69 of the provisional regulation that ‘the examination of the impact of dumped imports on the EU industry included an evaluation of all economic factors and indices relating to the state of the EU industry from 2007 to the end of the [investigation period]’. Only undercutting was analysed by reference to the investigation period alone (see recitals 67 and 68 of the provisional regulation, confirmed in recital 67 of the contested regulation).
113    As regards Borsod, the third EU producer, the parties disagree as to the date on which that producer ceased manufacturing the like product. At the hearing, the applicant stated that production had already ceased in 2007, whereas the Commission contended that, according to the information received from Borsod, this did not happen until 2008. In any event, it is common ground that that producer brought its production to an end during the period considered, before the commencement of the investigation period. In that context, it must be borne in mind that the Council found in recitals 57 and 68 of the contested regulation that it was correct to include all known figures related to the period considered for the purpose of determining the economic situation of the EU industry.
114    In that regard, it must be stated that Article 4(1) of the basic regulation contains no details as to the period during which an EU producer must have manufactured the like product in order to be included in the EU industry for the purposes of injury assessment.
115    In addition, the inclusion of all available data relating to the period considered, including that concerning producers which had ceased their production during that period, in order to obtain a reliable representation of the economic situation of the EU industry, is compatible with the objective of the first option referred to in Article 4(1) of the basic regulation, which is to make it possible to carry out an analysis based on the EU industry as a whole.
116    The applicant submits, however, that, injury is assessed for the investigation period under the basic regulation and that, while the period considered must determine trends, it cannot substitute or supersede the investigation period in importance. It argues that companies which have ceased production before the investigation period are not producers and cannot therefore form part of the EU industry. Otherwise, the past structure of the EU industry would supersede the current situation of that industry.
117    That argument cannot be accepted. It is necessary to take into account the past structure of the EU industry in order to be able to analyse precisely its development and in particular the impact of the dumped imports. In particular, the fact that a producer may cease its activities during the period considered forms part of the development of the industry and may therefore be taken into consideration. The inclusion in the injury analysis of producers which ceased their production during that period allows account to be taken, if necessary, of the situation of EU producers which have been affected by dumping to such an extent that they have been obliged to cease production.
118    In the light of the foregoing, the institutions did not exceed the limits of their discretion in including Borsod and Clariant in the definition of the EU industry.
119    That conclusion cannot be invalidated by the applicant’s argument, based on an alleged long-standing practice of the EU institutions, that (i) a high level of cooperation in the investigation is required from EU producers in order for them to be included in the EU industry, and (ii) producers that definitively cease their production during or after the period of investigation are not included in the definition of the EU industry.
120    In this regard, it is sufficient to note that, according to the case-law, where the EU institutions enjoy a margin of discretion in the choice of the means needed to achieve their policies, traders are unable to claim that they have a legitimate expectation that the means initially chosen will continue to be employed, since those means may be altered by the institutions in the exercise of their powers (see, to that effect, Case 260/84 Minebea v Council [1987] ECR 1975, paragraph 28, and Case C‑171/87 Canon v Council [1992] ECR I‑1237, paragraph 41). Therefore, the institutions may, in the exercise of their discretion, change their approach with respect to the inclusion of the producers in the EU industry.
121    In addition, the applicant’s argument that the institutions ought to have informed the interested parties of the reasons for the changes to the previous long-standing practice concerning the inclusion of non-cooperating producers in the EU industry cannot succeed either. At the hearing held on 22 February 2012, the hearing officer had already observed that for several years it had been the usual practice for the institutions to use data from non-cooperating producers in the injury analysis. In addition, at the stage of the defence, the Council referred to several regulations in which the institutions had included in the EU industry producers which had not cooperated during the investigation. Lastly, at the hearing, the Council stated that the practice of the institutions had changed in September 2010 in order to take into account the rules of the WTO and in particular the Panel Report entitled, ‘European Communities — Anti-Dumping Measure on Farmed Salmon from Norway’ (WT/DS337/R), of 16 November 2007, which criticised their earlier practice of excluding from the definition of the EU industry those producers which had not cooperated. In any event, the Council was not required to justify, in the contested regulation adopted in April 2012, the change to a practice which had already occurred in September 2010.
122    In the light of the foregoing, it must be concluded that the Council did not infringe Article 4(1) of the basic regulation by including Clariant and Borsod in the definition of the EU industry. The applicant’s contention that the assessment of injury was vitiated by an error, in so far as it was based, contrary to Article 3(1) and (2) of the basic regulation, on data relating to an ill-defined EU industry is consequently also unfounded. The present plea must therefore be rejected.
The second plea, alleging infringement of Article 3(2) and (5) of the basic regulation, in that the Commission committed a manifest error in the assessment of injury to the EU industry
123    The applicant argues that, even assuming that the definition of the EU industry is correct, the institutions committed a manifest error of assessment of the injury caused to the EU industry in analysing the economic factors selectively on the basis of two separate sets of data, that is to say, the macroeconomic indicators analysed taking into account the data of the three producers and the microeconomic indicators assessed solely on the basis of data provided by the sole cooperating EU producer, in breach of Article 3(2) and (5) of the basic regulation, interpreted in a manner consistent with the WTO rules.
124    It must be recalled that, under Article 1(1) of the basic regulation, an anti-dumping duty may be applied to a dumped product only if its release for free circulation in the European Union causes injury, the term ‘injury’ being taken to mean, in accordance with Article 3(1) of that regulation, material injury to the EU industry, a threat of material injury to the EU industry or material retardation of the establishment of such an industry.
125    Under Article 3(2) of the regulation, ‘[a] determination of injury shall be based on positive evidence and shall involve an objective examination of … (b) the consequent impact of [the dumped] imports on the [EU] industry’.
126    It must also be noted that Article 3(5) of the basic regulation provides that the examination of the impact of the dumped imports on the EU industry concerned must include an evaluation of all relevant economic factors and indices having a bearing on the state of that industry. That article contains a non-exhaustive list of the various factors which may be taken into consideration.
127    It is well-established case-law that determination of injury involves the assessment of complex economic matters. In that respect, the EU institutions enjoy a wide discretion (Nakajima v Council, cited in paragraph 110 above, paragraph 86; Aluminium Silicon Mill Products v Council, cited in paragraph 100 above, paragraph 43; and judgment of 18 September 2012 in Case T‑156/11 Since Hardware (Guangzhou) v Council, paragraph 135).
128    The European Union Courts must therefore restrict their review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate or whether there has been a manifest error of assessment or a misuse of powers (see Since Hardware (Guangzhou) v Council, cited in paragraph 127 above, paragraph 136 and the case-law cited).
129    In addition, it is for the applicant to adduce evidence enabling the Court to find that the Council made a manifest error of assessment when determining injury (see Since Hardware (Guangzhou) v Council, cited in paragraph 127 above, paragraph 137 and the case-law cited).
130    As the Court of Justice observed in paragraphs 61 and 62 of its judgment in Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723, Article 3(5) of the basic regulation gives the European Union authorities discretion in the examination and evaluation of the various items of evidence referred to in that provision. In addition, that provision merely requires an evaluation of the ‘relevant economic factors and indices having a bearing on the state of the [EU] industry’.
131    It is therefore in the exercise of their discretion that the institutions are called upon to analyse those factors and to use such of the assessment factors listed for that purpose in Article 3(5) as they deem relevant in each particular case (Case C‑179/87 Sharp Corporation v Council [1992] ECR I‑1635, paragraph 46, and Since Hardware (Guangzhou) v Council, cited in paragraph 127 above, paragraph 139).
132    In recital 71 of the contested regulation, the Council confirmed recital 69 of the provisional regulation, which states, ‘[i]n accordance with Article 3(5) of the basic Regulation, the examination of the impact of dumped imports on the Union industry included an evaluation of all economic factors and indices relating to the state of the Union industry from 2007 to the end of the [investigation period]’.
133    As is apparent from recital 70 of the provisional regulation, also confirmed in recital 71 of the contested regulation, ‘[t]he macroeconomic indicators (production, capacity, capacity utilisation, sales volumes, market share, employment, productivity, wages and magnitude of dumping margins) were assessed at the level of the Union industry, while microeconomic indicators (stocks, sales prices, profitability, cash flow, and return on investment, ability to raise capital and investments, production costs) were based on the information derived from the duly verified questionnaires submitted by the sole cooperating Union producer’.
134    In the first place, the applicant submits that the institutions should have consistently used either the macroeconomic data or the microeconomic data for the purpose of determining all the factors and it argues that to mix and match the two data-sets is not statistically valid in order to establish injury. That practice, it submits, infringes Article 3(2) and (5) of the basic regulation as it does not permit an objective examination of injury based on positive evidence because of manifest data inconsistencies and substantive conflicts between the macroeconomic and microeconomic factors. In that regard, the applicant states, in particular, that all microeconomic indicators show a positive trend, whereas only some macroeconomic indicators show a downward trend.
135    That argument cannot succeed. First, it must be noted that Article 3(5) of the basic regulation states that ‘nor can any one or more of these [economically relevant] factors necessarily give decisive guidance’, when examining the impact of the dumped imports on the EU industry concerned. Secondly, although the examination by the institutions must lead to the finding that the injury to the EU industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend (see, to that effect, Case T‑190/08 CHEMK and KF v Council [2011] ECR II‑7359, paragraph 114). Consequently, the existence of a positive trend in the microeconomic injury factors does not in itself preclude the institutions from concluding that injury has occurred.
136    Thus, it is apparent from recital 73 of the contested regulation, which confirmed recitals 95 to 98 of the provisional regulation, that the institutions concluded, after evaluating the indicators analysed, that, all in all, the negative indicators prevailed over the positive indicators, with the result that the EU industry had sustained injury within the meaning of Article 3 of the basic regulation. The institutions not only based their assessment on certain downward trends apparent from the macroeconomic factors, referred to in recitals 96 and 97 of the provisional regulation, such as the decrease in sales volumes, employment, production capacity and market share, but also took into account, during the examination of the impact of the dumped imports, the significant level of price undercutting (see recitals 65, 68 and 104 of the provisional regulation, confirmed in recitals 67 and 77 of the contested regulation). In addition, the institutions took into consideration Oxaquim’s profitability. In that regard, the Council found, as is apparent from recital 75 of the contested regulation, that the minor improvement regarding profitability did not devalue the conclusion that the overall profitability remained very low. Lastly, it is apparent from recitals 93 and 94 of the provisional regulation, confirmed in recital 71 of the contested regulation, that the return on Oxaquim’s investments remained negative throughout the period considered.
137    In the second place, the applicant submits that it is apparent from Article 3(2) and (5) of the basic regulation, interpreted in a manner consistent with the WTO rules, that the Council did not fulfil its obligation of objective examination when determining injury. More particularly, the applicant observes that Article 3(2) and (5) of the basic regulation implements Article 3.1 and 3.4 of the anti-dumping agreement in the European Union legal order and notes, referring, in particular, to the judgment in Nakajima v Council, cited in paragraph 110 above, that, according to well-established case-law, the provisions of the basic regulation must be interpreted in the light of that agreement. The applicant submits, in addition, that the reports of the WTO’s Dispute Settlement Body concerning the interpretation of the anti-dumping agreement could also shed light on the correct interpretation of the basic regulation.
138    In that regard, the applicant refers, in particular, to observations made concerning the obligation to carry out an objective examination, under Article 3.1 of the anti-dumping agreement, of the evidence relating to injury; those observations were made (i) by the WTO’s Appellate Body in paragraphs 193 and 204 to 206 of its report entitled ‘United States — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan’ (WT/DS184/AB/R) of 24 July 2001 (adopted by the WTO’s Dispute Settlement Body on 23 August 2001) and (ii) by the Panel in paragraphs 7.326 and 7.328 of its report ‘Mexico — Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala’ (WT/DS331/R) of 8 June 2007 (adopted by the WTO’s Dispute Settlement Body on 24 July 2007). Those observations, the applicant submits, demonstrate the need to base the analysis on a consistent data-set.
139    The applicant’s present argument cannot succeed either.
140    Admittedly, in accordance with settled case-law, the provisions of the basic regulation must, so far as is possible, be interpreted in the light of the corresponding provisions of the anti-dumping agreement (judgment of 19 December 2013 in Case C‑10/12 P Transnational Company Kazchrome and ENRC Marketing v Council, paragraph 54). None the less, the passages of the reports cited by the applicant are not capable of substantiating its reasoning.
141    In paragraphs 204 to 206 of its report entitled ‘United States — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan’, the Appellate Body emphasised the need to examine the domestic industry concerned as a whole, including the poorly performing producers and those performing well. In paragraph 204 of the report it is stated, inter alia, as follows:
‘[W]here investigating authorities undertake an examination of one part of a domestic industry, they should, in principle, examine, in like manner, all of the other parts that make up the industry, as well as examine the industry as a whole. … To examine only the poorly performing parts of an industry, even if coupled with an examination of the whole industry, may give a misleading impression of the data relating to the industry as a whole, and may overlook positive developments in other parts of the industry. … We note that the reverse may also be true — to examine only the parts of an industry which are performing well may lead to overlooking the significance of deteriorating performance in other parts of the industry.’
142    Similarly, the Panel referred, in paragraphs 7.326 to 7.328 of its report entitled ‘Mexico — Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala’, to the need to use a consistent data-set reflecting the performance of the producers comprising the domestic industry. In paragraph 7.326 of the report, the Panel observed:
‘We are of the view that once an investigating authority defines which entities comprise the domestic industry that will form the basis for its injury analysis, it should seek and use a consistent data-set reflecting the performance of those entities. We understand that, in practice, an investigating authority could have partial information to start an investigation, which might then be supplemented as the investigation proceeds. An investigating authority may also be confronted with problematic incomplete data furnished by one or more domestic producers. In such a case, it should request supplementary information, or, if that is not practicable, resort to a reasonable estimation methodology which will yield results that are reflective of the state of the domestic industry …’
143    The fact that, as in the present case, the macroeconomic indicators display a different trend from certain microeconomic indicators cannot constitute an inconsistency in the data showing that the institutions must limit their analysis either to macroeconomic or to microeconomic data.
144    On the contrary, first of all, it is apparent from Article 3.4 of the anti-dumping agreement and from Article 3(5) of the basic regulation that the examination of the impact of the dumped imports is to include an evaluation of all relevant economic factors and indices, with the result that investigating authorities must assess all macroeconomic or microeconomic data.
145    Next, in paragraph 7.328 of its report entitled ‘Mexico — Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala’, the Panel explained in particular:
‘In brief, examining only a part of the industry as defined by the investigating authority is not an objective examination of positive evidence since it is not representative of the overall state of the domestic industry. The use of a consistent and representative data-set will best reflect the state of the domestic industry for the purposes of an injury analysis.’
146    The same is true, in the present case, of all the macroeconomic and microeconomic data best reflecting the general state of the EU industry.
147    Lastly, the fact that the macroeconomic indicators were analysed at the level of the EU industry, whereas the microeconomic indicators were evaluated solely on the basis of Oxaquim’s figures, as the other EU producers had not provided any data in that regard, also does not permit the inference that the figures used by the institutions were inconsistent as a whole. Indeed, the objective of obtaining as precise and detailed a view of the EU industry as possible could not be attained if the institutions were obliged to disregard, from all the data available, either the macroeconomic data or the microeconomic data, on the ground that the latter were not available for all of the EU industry producers.
148    In the third place, the applicant submits that the institutions relied, in order to analyse the macroeconomic injury factors, on unverified macroeconomic data, while the microeconomic data were verified at the premises of the sole cooperating EU producer. In addition, the applicant doubts whether it is possible to obtain reliable macroeconomic data without the full cooperation of the producers concerned. Clariant provided only partial information and did not make itself available for verification, whilst Borsod did not cooperate at all.
149    That argument must also be rejected.
150    It should be noted that, under Article 6(8) of the basic regulation, the Commission must — except in the circumstances provided for in Article 18 of that regulation — examine for accuracy, as far as possible, in the course of the investigation of dumping and injury which it is required to carry out, the information which has been supplied by the interested parties and upon which findings are based. In addition, under Article 16(1) of the basic regulation the Commission must, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations, and to verify information provided on dumping and injury.
151    Consequently, although the Commission is required to examine the accuracy of the information which is supplied by interested parties and upon which findings are based (see Article 6(8) of the basic regulation), it is required to do so only in so far as this is possible, and that obligation presupposes that those parties cooperate with the Commission within the meaning of Article 18 of the basic regulation. According to that latter provision, in cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits provided for in that regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. In cases where those determinations are based on such data, including the information supplied in the complaint, Article 18(5) of the basic regulation provides that ‘it shall, where practicable …, be checked by reference to information from other independent sources which may be available … or information obtained from other interested parties during the investigation’.
152    However, the basic regulation does not confer on the Commission investigating powers enabling it to compel producers or exporters in respect of whom a complaint has been filed to participate in an investigation or to produce information (Case T‑48/96 Acme v Council [1999] ECR II‑3089, paragraph 42). In those circumstances, the Council and the Commission depend on the willingness of the parties to cooperate in providing them with the necessary information within the prescribed periods (EFMA v Council, cited in paragraph 100 above, paragraph 71).
153    In the present case, it is apparent from recital 70 of the provisional regulation that the microeconomic indicators were based on the information derived from the ‘duly verified’ questionnaire submitted by the cooperating EU producer.
154    By contrast, the provisional regulation and the contested regulation contain only certain information relating to the source of part of the macroeconomic data.
155    Consequently, recital 51 of the provisional regulation states, in particular, that ‘[a]ll available information concerning the two producers Oxaquim … and Clariant, including information provided in the complaint and data collected from the complainant before and after the initiation of the investigation, was used in order to establish the total Union production’.
156    Next, in recital 58 of the contested regulation, when the Council mentions that an exporting producer confirmed that ‘the decision [of the third EU producer] to stop the production was not due to the alleged dumping practices’, thus contradicting ‘the information which was made available by the complainant in the non-confidential version of the complaint’, it notes that, ‘[h]owever, the exporting producer did not provide any different information with regard to the alleged production figures related to this third Union producer’ and considers that, ‘[t]herefore, this issue does not devaluate the fact that the data related to that third EU producer could be used in the current investigation’.
157    In addition, as is apparent from the file, it must be noted that, during the hearing of 22 February 2012, held in the presence of the applicant and the Commission services, the Commission stated that it used specific data from cooperating companies for the microeconomic analysis, whereas for the global picture, reliable macroeconomic data were usually available at association level. In particular, the Commission confirmed that the macroeconomic data used for Clariant and Borsod were taken from the complaint and that non-confidential summaries were available in the open file.
158    Annex 3 to the complaint lodged by the CEFIC contains a series of tables concerning the injury indicators, including macroeconomic data concerning Clariant and Borsod covering the period between 2006 and the first half of 2010. However, they do not include, in particular, data on the production capacity of Clariant and Borsod.
159    In addition, although the Commission stated in recital 125 of the provisional regulation that ‘[o]ne of the two Union producers [namely, Clariant] [had] not object[ed] to the initiation of the investigation, but [had] provided no further information and [had] not cooperat[ed] during the investigation’, the Council mentions in the defence that Clariant had replied to the Commission’s questionnaire on standing and had provided data on its total production, EU sales and capacity for 2010 and that these data appeared to be in line with the sales data which CEFIC had provided in the complaint.
160    Lastly, the Council stated, at the hearing, that Clariant had provided, in its replies to the questionnaire, certain confidential data which were not included in the non-confidential investigation file. It added that all of the information had been double-checked, taking into account other available sources and in particular information obtained from the complainant.
161    In the light of those factors, it must, first, be noted that, although the information provided by the institutions relating to the sources and the verification of the macroeconomic data could have been more precise, that fact is not, however, sufficient in itself to support the conclusion that there was an error of assessment in the evaluation of the reliability of those data. The same is true of the applicant’s argument that the Commission indicated the source of the macroeconomic data only at a very late stage of the investigation, namely during the hearing referred to in paragraph 157 above. Even if that information was late, that does not imply that the institutions based their analysis on unreliable data.
162    Secondly, it is necessary to examine whether the institutions satisfied the requirements of the basic regulation concerning the verification of the data used when assessing the existence of any injury.
163    As regards the data submitted by Oxaquim, given that that producer cooperated in the investigation, the institutions were in principle required to verify those data in accordance with Article 6(8) of the basic regulation. It is common ground that Oxaquim’s microeconomic data were duly verified.
164    In addition, it is not in dispute that neither Clariant nor Borsod cooperated in the investigation, within the meaning of Article 18 of the basic regulation. The Commission was for that reason not in a position to carry out verification visits at the premises of those producers. It follows also that the obligation to examine the accuracy of the information supplied by interested parties, laid down in Article 6(8) of the basic regulation, does not automatically apply to the data supplied by Clariant.
165    As regards the use of the data supplied in the complaint, it must be noted that Article 18(5) of the basic regulation provides for the possibility of having recourse to such data when an interested party does not cooperate in the investigation. In so far as the applicant claims that the institutions failed to verify those data, it must be reiterated that Clariant and Borsod failed to cooperate and that, in accordance with the principles referred to in paragraphs 150 to 152 above, the Commission could not force those producers to supply information or to allow it to carry out verifications.
166    It follows none the less from the file that although, because of the failure on the part of Clariant and Borsod to cooperate, it was not possible for the institutions to evaluate with certainty the reliability of those macroeconomic data, the fact remains that the institutions were not provided with any specific information leading them to doubt the accuracy of the macroeconomic data. On the contrary, as noted in paragraph 156 above, although one exporting producer had contradicted the information provided in the complaint relating to the reasons why the third EU producer had ceased production of the like product, it had not, however, supplied divergent information concerning the production figures of that third producer. It must be noted, moreover, that the applicant has not furnished any specific evidence capable of calling into question the reliability of those data, whether in the course of the investigation or before the Court.
167    In the light of the foregoing considerations, the second plea in law must be rejected.
The third plea, alleging infringement of Article 9(4), Article 14(1) and Article 20(1) and (2) of the basic regulation, in that the Council failed to carry out a proper assessment and its decision does not contain an adequate statement of reasons
168    The present plea in law, concerning the requirements laid down by the basic regulation for the purposes of calculating the injury margin, is divided into four parts. The first part alleges infringement of Article 9(4) of the basic regulation. The second part alleges infringement of Article 14(1) of the basic regulation. The third part of the plea alleges infringement of Article 20(1) and (2) of the basic regulation, while the fourth part alleges infringement of the obligation to state reasons.
169    In the context of the present action, it is appropriate to examine, first of all, the final part of the plea, by which the applicant argues that, contrary to Article 296 TFEU, the contested regulation does not contain an adequate statement of reasons as regards (i) the compliance with the requirement to collect the anti-dumping duties independently of the customs duties, provided for in Article 14(1) of the basic regulation, and (ii) the compliance with the ‘the lesser duty rule’, provided for by Article 9(4) of the basic regulation.
170    First of all, it must be noted that, according to the case-law, the statement of reasons required by Article 296 TFEU must show clearly and unequivocally the reasoning of the European Union authority which adopted the contested measure, so as to inform the persons concerned of the justification for the measure adopted and thus to enable them to defend their rights and the European Union Courts to exercise their powers of review (Case 240/84 NTN Toyo Bearing and Others v Council [1987] ECR 1809, paragraph 31, and Acme v Council, cited in paragraph 152 above, paragraph 141).
171    However, it is not necessary for the reasoning of the regulation to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, Case 203/85 Nicolet Instrument [1986] ECR 2049, paragraph 10, and Case T‑16/96 Cityflyer Express v Commission [1998] ECR II‑757, paragraph 65).
172    Provided that a regulation imposing definitive anti-dumping duties, as in the present case, falls within the general scheme of a series of measures, it cannot be required that its statement of reasons specify the often very numerous and complex matters of fact and law dealt with in the regulation or that the institutions adopt a position on all the arguments relied on by the parties concerned. On the contrary, it is sufficient for the institution which adopted the measure to set out the facts and the legal considerations which have decisive importance in the scheme of the contested regulation (Case T‑314/06 Whirlpool Europe v Council [2010] ECR II‑5005, paragraph 114).
173    It must be added that the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to the observations which it has made during the administrative procedure (Case T‑410/06 Foshan City Nanhai Golden Step Industrial v Council [2010] ECR II‑879, paragraph 127).
174    In addition, the reasons for a measure must appear in the actual body of the measure and may not, save in exceptional circumstances where there is inadequate reasoning, be stated in written or oral explanations given subsequently when the measure is already the subject of proceedings brought before the European Union Courts (see, to that effect, Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 287 and the case-law cited; judgment of 17 February 2011 in Case T‑122/09 Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, not published in the ECR, paragraph 92; and judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, paragraph 34).
175    It should also be noted that, where the institutions enjoy a wide power of appraisal, respect for the safeguards guaranteed by the European Union legal order in administrative procedures is of even greater fundamental importance. Those safeguards include, in particular, the requirement that the competent institution examine, carefully and impartially, all matters relevant to the particular case, and the right of the person concerned to put forward his point of view and to have sufficient reasons given for the decision. Only in this way can the European Union Courts verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (see, to that effect, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243, paragraph 63; and Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, cited in paragraph 174 above, paragraph 75).
176    In the first place, as regards the calculation of the adjustment of export prices, the applicant notes that the contested regulation merely states that the 6.5% normal customs duty was included in the injury margin calculation. It submits that the Council informed it for the first time in the defence of how that customs duty and the post-importation costs had been included in the injury margin calculation and, in particular, that the fixed amount for post-importation costs was set at EUR 10 per tonne.
177    As regards the context of the reasoning at issue, it must be borne in mind that, in recital 66 of the final disclosure document, the Commission stated that ‘[a]n exporting producer [had] argued that the Commission failed to include an allowance of 6.5% corresponding to the normal customs duty in the injury margin calculation’, that, ‘[a]s the duty was underestimated for some imports that were delivered to one EU customer on a duty paid basis, this claim [had been] found to be partially correct’ and that ‘the injury margins calculations [had been] corrected accordingly’. It is also apparent from that document that the Commission took into account a fixed amount of EUR 56.81 per tonne to cover post-importation costs and customs duty.
178    In its observations on the final disclosure document of 14 February 2012, the applicant observed that the reference to ‘some imports that were delivered to one EU customer on a duty paid basis’ was incomprehensible and, in any event, did not apply to itself, since none of its sales were made on a ‘duty paid’ basis. The applicant stated that the 6.5% customs duty had to be added to its CIF prices during each transaction.
179    On 22 February 2012, at the hearing before the Commission, the applicant first of all stated that it was not clear whether the 6.5% was included in the EUR 56.81 adjustment and then insisted that the ‘customs duty’ element of the adjustment be expressed in the form of a proportion of 6.5% of the CIF price in order to reflect the amount of the customs duties paid on the two types of product (DSN and DSR) which were sold at different prices in the European Union. During that hearing, the Commission stated, however, that the import duty of 6.5% was included in the EUR 56.81 fixed adjustment, that that amount was an average of the customs duties and other post-importation costs, calculated on the basis of data received from importers that had cooperated, and that it agreed to recheck its calculation.
180    As regards the actual wording of the reasoning at issue, it must be noted that, as set out in recital 66 of the contested regulation:
‘An exporting producer argued … that the Commission failed to include fully an allowance of 6.5% corresponding to the normal customs duty in the injury margin calculation. This claim was found to be warranted and the injury margins calculations were corrected accordingly for this exporting producer ... However, this had no impact on the proposed definitive measures …’
181    The claim alleging the failure to include an allowance of 6.5% in the injury margin calculation is also mentioned in recital 83 of the contested regulation. According to that recital, ‘[t]his claim was found to be partially correct as for some imports that were delivered to the EU customer on a duty paid basis, the duty had been underestimated’.
182    Whereas in recital 88 of the final disclosure document the Commission had concluded that the applicant’s injury margin was 19.5%, in recital 87 of the contested regulation the Council set the applicant’s injury margin at 18.7%.
183    In so far as the Council contends in this regard that it was apparent how the customs duties were taken into account not only from recital 66 of the contested regulation, but also from the adjustment of the applicant’s injury margin from 19.5% in the final disclosure document to 18.7% in the contested regulation, it can be concluded from this that (i) account had been taken of the applicant’s claim that the allowance of 6.5% on account of the normal customs duty had not been included in the injury calculation margin and (ii) the initial calculation had been modified. However, since, as stated in recital 66 of the contested regulation, that claim ‘was found to be warranted’, whereas under recital 83 of that regulation — which refers to the same claim — that ‘claim was found to be partially correct’, the applicant could not be certain that its claim had been accepted in its entirety.
184    In addition, it is not clear from the reasoning of the contested regulation that the Council accepted the applicant’s argument that the customs duty had to be expressed as a percentage of the CIF price in order to reflect the amount of the customs duties paid on the two types of products (DSN and DSR) which were sold at different prices in the European Union. Even if the injury margin was amended in its favour, the applicant was still unable to conclude that the institutions had adopted the calculation method which it had proposed.
185    As is apparent from the case-law cited in paragraph 174 above, save in exceptional circumstances, which the Council has neither established nor raised in the present case, the defence — in which the Council explained the procedure for taking into account the customs duty when calculating the injury margin — could not remedy the shortcomings in the contested regulation’s reasoning.
186    In addition, in the present case, the missing information was not apparent from the context of the administrative procedure (see paragraphs 177 to 179 above), since the Commission amended the procedure for calculating the injury margin following the comments which the applicant made on the final disclosure document and at the hearing on 22 February 2012, without informing the applicant.
187    It follows from the foregoing that it must be concluded that the Council failed to provide sufficient reasons as to how the customs duty of 6.5% was included in the calculation of the injury margin.
188    In the second place, the applicant submits that there is an inadequate statement of reasons in the contested regulation concerning the basis on which the institutions obtained the target profit margin of 8% in order to determine the non-injurious price of the EU industry.
189    First of all, it must be noted that the Court held, in EFMA v Council, cited in paragraph 100 above, at paragraph 60, that the profit margin to be used by the Council when calculating the target price that will remove the injury in question must be limited to the profit margin which the EU industry could reasonably count on under normal conditions of competition, in the absence of the dumped imports.
190    In applying that criterion, the Commission stated, in recital 142 of the provisional regulation, that ‘the profit that could [have been] achieved in the absence of dumped imports [was] 8% of turnover’ and that ‘this profit margin could [have been] regarded as an appropriate minimum which the Union industry could have expected to obtain in the absence of injurious dumping’.
191    In its observations of 21 November 2011 on the provisional disclosure document, the applicant, inter alia, requested the Commission to explain how the 8% margin had been calculated or to apply a 5% margin, as was standard practice for basic chemical products, and it also stressed that this was a particularly important point given that the EU industry was already achieving profits of 7.2%. It repeated that request in its observations on the final disclosure document and at the hearing held on 22 February 2012 before the Commission. The Commission did not, however, provide any explanation, during the investigation, concerning the procedure for calculating the 8% profit margin, in particular neither in the final disclosure document nor at the hearing of 22 February 2012.
192    As regards the manner in which reasons were given for the 8% profit margin in the contested regulation, it must be noted that recital 84 of that regulation simply refers to recital 142 of the provisional regulation without providing further details.
193    First, the applicant submits that it is the established practice of the institutions to determine the target profit margin by going back to a representative past period when no injurious dumping was taking place. The absence of any similar reasoning in the contested regulation supports the conclusion, in its view, that the Council infringed Article 296 TFEU.
194    It must be noted that the choice of method for calculating the injury elimination level falls within the discretion enjoyed by the institutions in respect of determinations of injury suffered by the EU industry and which is justified by the complex economic assessments inherent in such determinations (Case T‑462/04 HEG and Graphite India v Council [2008] ECR II‑3685, paragraph 161). The fact remains, however, that the institutions must comply with the obligation to state reasons stemming from Article 296 TFEU, which is, in accordance with the case-law cited in paragraph 175 above, of even greater importance when they enjoy a broad power of appraisal. More particularly, the reasoning should have made it possible to ascertain whether the institutions had based their decisions on correct material facts and whether the assessment of those facts was not manifestly erroneous.
195    It is apparent from recital 84 of the contested regulation, read in conjunction with recital 142 of the provisional regulation, that, in essence, the Council merely stated that the institutions had considered a profit margin of 8% to be reasonable. Admittedly, in accordance with the case-law noted in paragraph 172 above, the statement of reasons for a regulation imposing anti-dumping duties does not necessarily have to cover all the technical aspects of the procedure for calculating the profit margin. In addition, as is apparent from recital 76 of the contested regulation, the institutions had to take into account the rules on confidentiality, in particular concerning the data supplied by Oxaquim. However, the contested regulation does not contain any information on the considerations which led the institutions to find that the 8% rate was reasonable, with the result that it was impossible to ascertain, on the basis of the reasoning in that regulation, how the institutions had exercised their discretion.
196    Secondly, the necessary information is also not apparent from the context of the administrative procedure. Despite the applicant’s requests, the Commission did not disclose, during the administrative procedure, the considerations which led it to set the profit margin at 8%.
197    In essence, the Council contends, however, that, in the light of the context of the contested regulation and all the legal rules governing the matter concerned, the statement of reasons meets the requirements of Article 296 TFEU. It argues, in particular, that the target profit margin, used in the previous proceedings regarding oxalic acid, was a matter of public record because it was mentioned in the regulations published in the Official Journal of the European Union.
198    The Council cites, however, only two regulations concerning imports of polyester textured filament yarn. As is apparent from recital 117 of Council Regulation (EC) No 2093/2002 of 26 November 2002 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of polyester textured filament yarn (PTY) originating in India (OJ 2002 L 323, p. 1), and recital 123 of Commission Regulation (EC) No 1412/2002 of 29 July 2002 imposing a provisional anti-dumping duty on imports of polyester textured filament yarn (PTY) originating in India (OJ 2002 L 205, p. 50), in those regulations the institutions applied a profit margin of 8%; they stated that that figure corresponded to the profit which that industry experienced in 1998 and explained, in particular, that the year 1998 had been considered to be a reasonable choice of reference year, since the dumped imports had not yet had a depressing effect on the EU industry’s prices.
199    However, even if the applicant was able to acquaint itself with the margins applied in those proceedings, the Council does not explain how it could have drawn conclusions from them as to how the institutions established the profit margin in the present case. The Council’s argument in this regard must therefore be rejected.
200    That conclusion cannot be called into question by the Commission’s observation at the hearing that the regulations in question were cited on the ground that the production of polyester textured filament yarn was, like that of oxalic acid, capital-intensive. That argument was not mentioned during the administrative procedure and does not feature in the contested regulation either.
201    The Council contends for the first time in its statement of defence that, when determining the profit margin, the institutions took into account the fact that the production of oxalic acid was capital-intensive. In the rejoinder, the Council adds that the institutions did not automatically apply the target profit which they had used during previous procedures, but that they used the 8% target profit only when they had confirmed that this profit continued to be suitable for the producers of oxalic acid.
202    First, this involves new information apparent from neither the contested regulation nor the context of the administrative procedure and which cannot therefore, in accordance with the case-law referred to in paragraph 174 above, remedy the inadequate reasoning in the contested regulation. Secondly, in any event, that additional information also does not explain to the requisite legal standard the exercise of the institutions’ discretion. When the Council argues that the institutions ascertained that the profit margin used during the previous procedures was still suitable, in essence it simply restates the idea that the margin was reasonable, without providing any explanation for that assessment. As regards the argument concerning capital intensity, relied on by the Council, it has not been shown to what extent this factor alone could account for the rate of profit margin selected.
203    Consequently, it must be held that the Council failed to provide sufficient reasons for the determination of the profit margin.
204    In the light of the inadequate statement of reasons for the profit margin and the inadequate statement of reasons concerning the adjustment of the export prices found in paragraph 187 above, it must be found that sufficient reasons have not been given for the method of determining the injury margin as a whole, with the result that the contested regulation is vitiated by an inadequate statement of reasons for the purposes of Article 296 TFEU.
205    The present part of the plea must therefore be upheld.
206    Since the fourth part of the third plea in law has been held to be well founded, it is no longer necessary to analyse the other parts of that plea.
The fourth plea, alleging infringement of Article 20(5) of the basic regulation as well as an infringement of the principles of non-discrimination and sound administration, in that the Commission failed to respect the applicant’s right to submit written comments on the final disclosure within a minimum period of 10 days
207    The fourth plea in law comprises three parts. The first part alleges infringement of Article 20(5) of the basic regulation, the second part alleges infringement of the principle of sound administration, and the third part alleges infringement of the principle of non-discrimination.
The first part of the fourth plea, alleging infringement of Article 20(5) of the basic regulation
208    In the first part of the present plea, the applicant submits that the contested regulation must be annulled on the ground that the Commission did not afford it a period of 10 days to submit written comments on the final disclosure, as provided for in Article 20(5) of the basic regulation.
209    First of all, it must be pointed out that Article 20 of the basic regulation sets out the means by which the parties concerned, including exporters, may exercise their right to be heard, which constitutes one of the fundamental rights recognised by the European Union legal order and includes the right to be informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive anti-dumping duties (see, to that effect, Case C‑49/88 Al-Jubail Fertilizer v Council [1991] ECR I‑3187, paragraph 15, and Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, cited in paragraph 174 above, paragraph 76).
210    In an investigation preceding the adoption of an anti-dumping regulation, the undertakings concerned must be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (see, to that effect, judgments in Al-Jubail Fertilizer v Council, cited in paragraph 209 above, paragraph 17; of 16 February 2012 in Joined Cases C‑191/09 P and C‑200/09 P Council and Commission v Interpipe Niko Tube and Interpipe NTRP, paragraph 76; and in Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, cited in paragraph 174 above, paragraph 77).
211    Article 20 of the basic regulation defines the specific requirements stemming from the rights of defence of the undertakings concerned by an anti-dumping proceeding. More specifically, Article 20(5) of the basic regulation grants undertakings which have received the final disclosure the right to submit any representations within the period set by the Commission, which must be at least 10 days.
212    In the present case, as the Council acknowledges, the applicant had only 7 days, instead of 10, to comment on the final disclosure. Therefore, it must be found that the Commission infringed Article 20(5) of the basic regulation.
213    However, failure to comply with the 10-day period prescribed in Article 20(5) of the basic regulation can result in annulment of the contested regulation only where there is a possibility that, due to that irregularity, the administrative procedure might have had a different outcome (Case C‑141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I‑9147, paragraph 81).
214    It must also be noted that, according to the case-law of the Court of Justice, an applicant cannot be required to show that the Commission’s decision would have differed in content but simply that such a possibility cannot be entirely ruled out, since it would have been better able to defend itself had there been no procedural error (Foshan Shunde Yongjian Housewares & Hardware v Council, cited in paragraph 213 above, paragraph 94).
215    First of all, the applicant submits in essence that it is possible that the outcome of the investigation would have been different if it had had 10 days, instead of 7, to submit its written comments on the final disclosure document, that is to say, until 17 February 2012 instead of 14 February 2012.
216    That argument cannot be accepted.
217    The failure to observe the 10-day period for the submission of comments did not preclude the applicant from expressing its point of view on the final disclosure document. After having had the opportunity of consulting the Commission’s case-file, the applicant submitted its comments on the final disclosure document on 14 February 2012.
218    In addition, during the hearing held on 22 February 2012, that is to say, eight days after the submission of its comments and five days after the 10-day deadline had expired, the applicant had a further opportunity to set out its arguments. However, it simply repeated the arguments that it had already made during the procedure and in its abovementioned comments. Consequently, even with the benefit of an additional eight days to scrutinise the final disclosure document, the applicant did not put forward any additional arguments or information. It cannot therefore claim that the infringement of Article 20(5) of the basic regulation affected its ability to advance arguments and to exercise its rights of defence.
219    In addition, it must be noted that the applicant’s claim that the infringement of Article 20(5) of the basic regulation occurred in a context in which the key matters of principle, such as the treatment of the normal customs duty, continued to be considered right up to the last minute, is ineffective, since what has to be analysed is whether the failure to observe the minimum period in question could have affected the outcome of the anti-dumping proceeding.
220    Although the applicant further submits that the new disclosures contained only in the statement of defence show that there was important information that should have been disclosed to it and in respect of which its right to comment ought to have been safeguarded, that argument must also be rejected: if the 10-day period had been observed, this could not have had any bearing on the failure to provide information which the applicant levels against the institutions. Even if the applicant had had 10 days in order to comment on the final disclosure document, it could not have expressed a view on information which had not yet been disclosed.
221    It follows from the foregoing considerations that there is no basis on which it can be found that, as a result of the failure to observe the period provided for by Article 20(5) of the basic regulation, the anti-dumping proceeding might have had a different outcome.
222    The first part of the fourth plea in law must therefore be rejected.
The second part of the fourth plea, alleging infringement of the principle of sound administration
223    In essence, the applicant submits that the failure to comply with the minimum period, laid down in Article 20(5) of the basic regulation, also constitutes an infringement of the principle of sound administration.
224    In that context, the possibility under Article 20(5) of the basic regulation of submitting representations within a period which must be at least 10 days may be considered to be a component of the right to sound administration, entailing, pursuant to Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, in particular ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’.
225    However, as was the case during the examination of the infringement of Article 20(5) of the basic regulation, the alleged infringement of the principle of sound administration could lead to the annulment of the contested regulation only in so far as that irregularity might have had a bearing on the outcome of the anti-dumping proceeding, thereby actually affecting the applicant’s rights of defence. As is clear from the considerations set out in paragraphs 217 to 221 above, there is, however, no basis on which it can be found that the failure to observe the minimum 10-day period actually affected the applicant’s rights.
226    The second part of the fourth plea in law must therefore also be rejected.
The third part of the fourth plea, alleging infringement of the principle of non-discrimination
227    The applicant submits that it has been the victim of discrimination, since, unlike the other interested parties, it did not benefit from the period of 10 days for submitting its comments on the final disclosure.
228    In that regard, suffice it to note, in any event, there is no reason to take the view that that fact had a bearing on the outcome of the investigation, as has already been noted in paragraphs 217 to 221 above. It follows that in the present case there was no difference in treatment justifying annulment of the contested regulation.
229    Consequently, the third part of the fourth plea in law must be rejected, as must the fourth plea in law in its entirety.
230    It follows from the foregoing that, since the fourth part of the third plea in law is well founded, the contested regulation must be annulled on the ground that its statement of reasons is inadequate in regard to the applicant.
Costs
231    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 bear, in addition to its own costs, those incurred by the applicant, other than the costs incurred as a result of the Commission’s intervention.
232    Under the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. It must also pay the costs incurred by the applicant as a result of its intervention.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Annuls Council Implementing Regulation (EU) No 325/2012 of 12 April 2012 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of oxalic acid originating in India and the People’s Republic of China in so far as it concerns Yuanping Changyuan Chemicals Co. Ltd;
2.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Yuanping Changyuan Chemicals Co. Ltd, other than the costs incurred by the latter as a result of the European Commission’s intervention;
3.      Orders the European Commission to bear its own costs and to pay those incurred by Yuanping Changyuan Chemicals Co. Ltd as a result of the European Commission’s intervention.
Martins Ribeiro
Gervasoni
Madise
Delivered in open court in Luxembourg on 20 May 2015.
[Signatures]
Table of contents
Legal context
WTO Rules
EU law
Background to the dispute
Contested regulation
Procedure and forms of order sought
Law
The need to give judgment by default
The first plea in law, alleging infringement of Article 3 and Article 4(1) of the basic regulation, in that the Council committed an error in defining the EU industry
The second plea, alleging infringement of Article 3(2) and (5) of the basic regulation, in that the Commission committed a manifest error in the assessment of injury to the EU industry
The third plea, alleging infringement of Article 9(4), Article 14(1) and Article 20(1) and (2) of the basic regulation, in that the Council failed to carry out a proper assessment and its decision does not contain an adequate statement of reasons
The fourth plea, alleging infringement of Article 20(5) of the basic regulation as well as an infringement of the principles of non-discrimination and sound administration, in that the Commission failed to respect the applicant’s right to submit written comments on the final disclosure within a minimum period of 10 days
The first part of the fourth plea, alleging infringement of Article 20(5) of the basic regulation
The second part of the fourth plea, alleging infringement of the principle of sound administration
The third part of the fourth plea, alleging infringement of the principle of non-discrimination
Costs
* Language of the case: English.