JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
4 May 2022 (*) (1)
(Dumping – Subsidies – Imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in China – Definitive anti-dumping duty – Definitive countervailing duty – Action for annulment – Locus standi – Direct concern – Individual concern – Regulatory act which does not entail implementing measures – Interest in bringing proceedings – Injury to the Union industry – Objective examination – Causal link – Calculation of the price undercutting and the injury margin – Fair comparison of prices – Constructed import prices – Prices charged to first independent buyers – Difference in the level of trade – Complex economic assessments – Intensity of judicial review – Injury indicators – Weighting of the data – Access to non-confidential investigation data – Rights of the defence)
In Cases T‑30/19 and T‑72/19,
China Rubber Industry Association (CRIA), established in Beijing (China),
China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC), established in Beijing,
represented by R. Antonini, B. Maniatis and E. Monard, lawyers,
applicants,
v
European Commission,
represented by M. Gustafsson and G. Luengo, acting as Agents,
defendant,
supported by
Marangoni SpA,
established in Rovereto (Italy), represented by C. Bouvarel, A. Coelho Dias and O. Prost, lawyers,
intervener,
APPLICATION, in Case T‑30/19, based on Article 263 TFEU, seeking the partial annulment of Commission Implementing Regulation (EU) 2018/1579 of 18 October 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation (EU) 2018/163 (OJ 2018 L 263, p. 3) and, in Case T‑72/19, based on Article 263 TFEU seeking the partial annulment of Commission Implementing Regulation (EU) 2018/1690 of 9 November 2018 imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending Implementing Regulation 2018/1579 (OJ 2018 L 283, p. 1),
THE GENERAL COURT (Tenth Chamber, Extended Composition),
composed of A. Kornezov, President, E. Buttigieg, K. Kowalik-Bańczyk (Rapporteur), G. Hesse and D. Petrlík, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure and further to the hearing on 9 July 2021,
gives the following
Judgment
I.      Background to the dispute
1        On 11 August and 14 October 2017, following two complaints lodged by the Coalition against unfair tyre imports, the European Commission opened, respectively, an anti-dumping investigation and an anti-subsidy investigation, each of which concerned imports into the European Union of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 (‘the product concerned’) originating in the People’s Republic of China. The investigations were opened on the basis, respectively, of Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’) and Article 10 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’).
2        The investigation of dumping, subsidies and related injury covered the period from 1 July 2016 to 30 June 2017 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2014 to the end of the investigation period (‘the period considered’).
3        The interested parties – including the Chinese exporting producers to which the anti-dumping and anti-subsidy investigations relate and their representative associations – were invited to participate in those investigations. Several interested parties, including the applicants, China Rubber Industry Association (CRIA) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC), submitted written observations during the various stages of the anti-dumping and the anti-subsidy procedures. Certain interested parties, including the applicants, also participated in hearings organised by the Commission.
4        On 1 February 2018, the Commission adopted Implementing Regulation (EU) 2018/163 of 1 February 2018 making imports of new and retreaded tyres for buses or lorries originating in the People’s Republic of China subject to registration (OJ 2018 L 30, p. 12), which entered into force on 3 February 2018. That regulation makes imports of the product concerned originating in China subject to registration.
5        On 4 May 2018, the Commission adopted Regulation (EU) 2018/683 imposing a provisional anti-dumping duty on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China, and amending Implementing Regulation 2018/163 (OJ 2018 L 116, p. 8; ‘the provisional anti-dumping regulation’). That regulation imposes a provisional anti-dumping duty on imports of the product concerned originating in China.
6        By contrast, the Commission decided not to impose provisional measures in the anti-subsidy procedure.
7        On 18 October 2018, the Commission adopted Implementing Regulation (EU) 2018/1579 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation 2018/163 (OJ 2018 L 263, p. 3; ‘the definitive anti-dumping regulation’).
8        Article 1(1) of the definitive anti-dumping regulation imposes a definitive anti-dumping duty on imports of the product concerned originating in China. Under Article 1(2) of that regulation, in its original version, the amount of the anti-dumping duty was set at a level ranging, depending on the manufacturing company, from EUR 42.73 to EUR 61.76 per unit of the product concerned.
9        On 9 November 2018, the Commission adopted Implementing Regulation (EU) 2018/1690 imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending the definitive anti-dumping regulation (OJ 2018 L 283, p. 1; ‘the anti-subsidy regulation’).
10      Article 1(1) of the anti-subsidy regulation imposes a definitive countervailing duty on imports of the product concerned. Under Article 1(2) of that regulation, the amount of the countervailing duty was set at a level ranging, depending on the manufacturing company, from EUR 3.75 to EUR 57.28 per unit of the product concerned.
11      Article 2(1) of the anti-subsidy regulation amends Article 1(2) and (3) of the definitive anti-dumping regulation. Following that amendment, the amount of the definitive anti-dumping duty was reduced to a level ranging, depending on the manufacturing company, from EUR 0 to EUR 38.98 per unit of product.
12      To summarise, in the definitive anti-dumping regulation, as amended, and in the anti-subsidy regulation (together, ‘the contested regulations’), the applicable definitive anti-dumping and countervailing duties, expressed in EUR per unit of product concerned manufactured by the Chinese exporting producers, were ultimately set as follows:
Company
Definitive anti-dumping duty
Definitive countervailing duty
Xingyuan Tire Group Ltd, Co.; Guangrao Xinhongyuan Tyre Co., Ltd (together, ‘the Xingyuan Group’)
4.48
57.28
Giti Tire (Anhui) Company Ltd; Giti Tire (Fujian) Company Ltd; Giti Tire (Hualin) Company Ltd; Giti Tire (Yinchuan) Company, Ltd (together, ‘the Giti Group’)
36.89
11.07
Aeolus Tyre Co., Ltd; Aeolus Tyre (Taiyuan) Co., Ltd; Qingdao Yellow Sea Rubber Co., Ltd; Pirelli Tyre Co., Ltd (together, ‘the Aeolus Group’)
0.37
49.07
Chongqing Hankook Tire Co., Ltd; Jiangsu Hankook Tire Co., Ltd (together, ‘the Hankook Group’)
38.98
3.75
Other companies cooperating in both the anti-subsidy and the anti-dumping investigations, listed in Annexes I to the contested regulations
21.62
27.69
Other companies cooperating in the anti-dumping investigation but not the anti-subsidy investigation, listed in Annexes II to the contested regulations
0
57.28
All other companies
4.48
57.28
II.    Procedure and forms of order sought
13      By applications lodged at the Court Registry on 15 January 2019 in Case T‑30/19, and on 5 February 2019 in Case T‑72/19, the applicants, acting on behalf of some of their members listed in Annexes A.2 to those applications (‘Annexes A.2’) as well as on their own behalf, brought the present actions for annulment in part of the contested regulations.
14      By letter lodged at the Court Registry on 8 February 2019, the applicants requested that the two cases be joined at all stages of the proceedings. By letter of 14 March 2019, the Commission left the decision as to whether the cases should be joined to the Court’s discretion. By decision of 28 March 2019, the President of the Ninth Chamber of the General Court decided not to join the two cases at that stage of the proceedings.
15      The Commission lodged the defences on 30 April 2019 in Case T‑30/19 and on 7 May 2019 in Case T‑72/19.
16      The applicants lodged the replies on 27 June 2019 in Case T‑30/19 and on 1 July 2019 in Case T‑72/19, indicating that they were acting on behalf of some of their members listed in Annexes R.2 to those replies (‘Annexes R.2’) as well as on their own behalf.
17      The Commission lodged the rejoinders in the present cases on 23 September 2019.
18      In the meantime, by documents lodged at the Court Registry on 24 April 2019, Marangoni SpA sought leave to intervene in the present cases in support of the form of order sought by the Commission. By orders of the President of the Ninth Chamber of the General Court of 12 July 2019, Marangoni was granted leave to intervene in each of the cases in support of the form of order sought by the Commission. On 28 August 2019, it lodged the statements in intervention. On 21 October 2019, the Commission indicated that it had no observations on those statements in intervention. On 22 October 2019, the applicants lodged their observations on the statements in intervention.
19      By decision of 4 May 2021, the President of the Tenth Chamber of the General Court decided to join the cases for the purposes of the oral part of the procedure, in accordance with Article 68 of the Rules of Procedure of the General Court.
20      By measures of organisation of procedure adopted pursuant to Article 89(3)(a) to (c) of the Rules of Procedure, the Court put questions to the main parties, which replied within the prescribed period.
21      By decision of 12 May 2021, the Court referred the case to the Tenth Chamber, Extended Composition, in accordance with Article 28 of the Rules of Procedure.
22      The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 9 July 2021. At the hearing, the applicants defined the scope of their claims regarding the definitive anti-dumping and countervailing duties imposed on the companies referred to in Annexes R.2. Furthermore, the Commission stated that it was withdrawing two pleas of inadmissibility raised in its written submissions, while maintaining its plea of inadmissibility alleging that the applicants have no interest in relying on pleas alleging infringement of procedural rights. That was officially noted in the minutes of the hearing.
23      In Case T‑30/19, the applicants ultimately claim that the Court should:
–        annul the definitive anti-dumping regulation ‘in so far as it relates to [the applicants] and the members concerned [as listed in Annex R.2]’;
–        order the Commission and the intervener to pay the costs.
24      In Case T‑72/19, the applicants ultimately claim that the Court should:
–        annul the anti-subsidy regulation ‘in so far as it relates to [the applicants] and the members concerned [listed in Annex R.2]’;
–        order the Commission and the intervener to pay the costs.
25      In each of the two cases, the Commission, supported, in essence, by the intervener, contends that the Court should:
–        dismiss the action as inadmissible or unfounded;
–        order the applicants to pay the costs.
III. Law
A.      The joinder
26      In accordance with Article 19(2) of the Rules of Procedure, the President of the Tenth Chamber, Extended Composition, of the General Court referred the decision as to whether the present cases should be joined for the purposes of the decision which closes the proceedings, which fell within his remit, to the Tenth Chamber, Extended Composition, of the General Court.
27      After hearing the main parties in relation to the joinder of the present cases for the purposes of the decision which closes the proceedings and as they did not object to such joinder, the Court considers that it is appropriate to join the cases on account of the connection between them, in accordance with Article 68 of the Rules of Procedure.
B.      Subject matter of the actions
28      It is apparent from all the written and oral explanations given by the applicants that they ultimately seek the annulment of the contested regulations in so far as they impose, respectively, a definitive anti-dumping duty and a countervailing duty on the imports of the products manufactured by the 27 exporting producers listed in Annexes R.2 in the column entitled ‘Company Names’, namely:
–        Chaoyang Long March Tyre Co. Ltd;
–        Triangle Tyre Co. Ltd;
–        Shandong Wanda Boto Tyre Co. Ltd;
–        Qingdao Doublestar Tire Industrial Co. Ltd;
–        Ningxia Shenzhou Tire Co. Ltd;
–        Guizhou Tyre Co. Ltd;
–        Aeolus Tyre;
–        Shandong Huasheng Rubber Co. Ltd;
–        Chongqing Hankook Tire;
–        Prinx Chengshan (Shandong) Tire Co. Ltd;
–        Jiangsu Hankook Tire;
–        Shandong Linglong Tire Co. Ltd;
–        Shandong Jinyu Tire Co., Ltd;
–        Sailun Jinyu Group Co. Ltd;
–        Shandong Kaixuan Rubber Co. Ltd;
–        Weifang Yuelong Rubber Co. Ltd;
–        Weifang Shunfuchang Rubber And Plastic Products Co. Ltd;
–        Shandong Hengyu Science & Technology Co. Ltd;
–        Jiangsu General Science Technology Co. Ltd;
–        Double Coin Group (Jiang Su) Tyre Co. Ltd;
–        Zhongce Rubber Group Co., Ltd;
–        Hefei Wanli Tire Co. Ltd;
–        Giti Tire (Anhui);
–        Giti Tire (Fujian);
–        Giti Tire (Hualin);
–        Giti Tire (Yinchuan);
–        Qingdao GRT Rubber Co. Ltd.
C.      Admissibility
1.      Admissibility of the actions
29      The Court considers it appropriate to verify of its own motion the admissibility of the actions in so far as they are directed against the definitive anti-dumping and countervailing duties imposed on imports of the products manufactured by some of the applicants’ members referred to in Annexes R.2. Questions were put to the main parties in that connection by way of the measures of organisation of procedure and the parties stated their position in their written replies to those measures.
(a)    Whether the applications are precise
30      In its written reply to the measures of organisation of procedure, the Commission submits, in essence, that the actions are admissible only in so far as the exporting producers concerned were identified precisely in Annexes A.2. The applicants are not permitted to amend the subject matter of the actions by correcting the names of those exporting producers or by adding new names in Annexes R.2.
31      It must be borne in mind that pursuant to Article 76(d) and (e) of the Rules of Procedure, the application must contain, inter alia, the subject matter of the proceedings and the form of order sought. It follows that an application initiating proceedings must contain elements that are sufficiently clear and precise to enable the defendant and the Court to determine, without risk of error, the exact scope of the action.
32      Accordingly, in the absence of matters of law or of fact which came to light in the course of the written procedure, only the form of order set out in the application initiating proceedings may be taken into consideration (see, to that effect, judgment of 26 October 2010, Germany v Commission, T‑236/07, EU:T:2010:451, paragraphs 27 and 28 and the case-law cited). By contrast, forms of order which clarify the scope of previous forms of order are not substantial modifications and are therefore admissible (see judgment of 2 December 2008, Ebro Puleva v OHIM – Berenguel (BRILLO’S), T‑275/07, not published, EU:T:2008:545, paragraph 9 and the case-law cited).
33      In the present case, it must be observed that the company names of some of the companies listed in Annexes A.2 were amended in Annexes R.2. In those circumstances, it is necessary to examine whether, in the light of the principles recalled in paragraphs 31 and 32 above, the applicants are entitled to challenge the contested regulations in so far as those regulations impose definitive anti-dumping and countervailing duties on the imports of the products manufactured by (i) Triangle Tyre, (ii) Heifei Wanli Tire and (iii) the four companies in the Giti Group.
(1)    Triangle Tyre
34      It must be noted that, although Annexes A.2 refer to a company named Triangle Group Co. Ltd, the applicants went on to refer in its stead, in Annexes R.2, to a company named Triangle Tyre Co. Ltd, specifying that they had initially referred incorrectly to an affiliate.
35      In that connection, having regard to the clear similarity between the company name Triangle Tyre Co. Ltd in the contested regulations and that of Triangle Group Co. Ltd in Annexes A.2, the applications had to be understood as referring in actual fact to the duties imposed on the products manufactured by Triangle Tyre. It follows that the applications contained elements that are sufficiently clear and precise to determine, without risk of error, the exact scope of the actions as regards that company.
36      Therefore, it was possible to rectify the clerical error in question in Annexes R.2 without it leading to the inadmissibility of the form of order relating to the definitive anti-dumping and countervailing duties imposed on the imports of the products manufactured by Triangle Tyre.
(2)    Hefei Wanli Tire
37      It must be noted that, although Annexes A.2 refer to a company named Wanli Tire Corporation Limited, the applicants went on to refer in its stead, in Annexes R.2, to a company named Hefei Wanli Tire Co. Ltd, specifying that they had initially referred incorrectly to an affiliate.
38      In that connection, given that there is not mention of any company named Wanli in the contested regulations and having regard to the clear similarity between the company name Wanli Tire Corporation Limited in Annexes A.2 and that of Hefei Wanli Tire Co. Ltd, the applications had to be understood as referring in actual fact to the duties imposed on the products manufactured by Hefei Wanli Tire. It follows that the applications contained elements that are sufficiently clear and precise to determine, without risk of error, the exact scope of the actions as regards that company.
39      Therefore, it was possible to rectify the clerical error in question in Annexes R.2 without it leading to the inadmissibility of the form of order relating to the definitive anti-dumping and countervailing duties imposed on the imports of the products manufactured by Hefei Wanli Tire.
(3)    The Giti Group
40      It must be stated that, although Annexes A.2 refer to the company ‘Giti Tire Company Ltd’, the applicants went on to refer in its stead, in Annexes R.2, to four separate companies, namely Giti Tire (Anhui) Company Ltd, Giti Tire (Hualin) Company Ltd, Giti Tire (Fujian) Company Ltd and Giti Tire (Yinchuan) Company Ltd, specifying that they had initially referred incorrectly to an affiliate.
41      In that connection, having regard to the clear similarity between the company names of the four companies in the Giti Group in the contested regulations and that of Giti Tire Company Ltd in Annexes A.2, the applications had to be understood as referring in actual fact to the duties imposed on the products manufactured by those companies. It follows that the applications contained elements that are sufficiently clear and precise to determine, without risk of error, the exact scope of the actions as regards those companies.
42      Therefore, it was possible to amend the clerical error in question in Annexes R.2 without it leading to the inadmissibility of the forms of order relating to the definitive anti-dumping and countervailing duties imposed on the imports of the products manufactured by the Giti Group.
(b)    The applicants’ standing to bring proceedings
43      In its written reply to the measures of organisation of procedure, the Commission raises doubts regarding the applicants’ standing to bring proceedings on the ground that some of their members referred to in Annexes R.2 do not have standing to bring proceedings themselves against the definitive anti-dumping and countervailing duties imposed on the imports of the products they manufacture. This is the case of (i) Triangle Tyre, (ii) Weifang Yuelong Rubber and Hefei Wanli Tire and (iii) in Case T‑72/19 alone, Zhongce Rubber Group.
44      First, it should be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against three types of acts, that is to say (i) an act addressed to that person, (ii) an act which is of direct and individual concern to them and (iii) a regulatory act which is of direct concern to them and does not entail implementing measures.
45      Second, an association which is responsible for protecting collective interests is, as a rule, entitled to bring an action for annulment of an act only if the undertakings which it represents or some of those undertakings have standing to bring proceedings themselves or if it can rely on its own interest in bringing proceedings (see, to that effect, judgment of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 87 and the case-law cited).
46      In the present case, it is necessary to examine whether, in the light of the principles recalled in paragraphs 44 and 45 above, the applicants are entitled to challenge the contested regulations in so far as those regulations impose definitive anti-dumping and countervailing duties on the imports of the products manufactured by the companies referred to in paragraph 43 above.
(1)    Triangle Tyre
47      In its written reply to the measures of organisation of procedure, the Commission argues that Triangle Group Co. Ltd did not cooperate in the anti-dumping and anti-subsidy procedures and, therefore, does not have standing to bring proceedings in the context of an action for annulment under Article 263 TFEU. It refers to the case-law according to which measures imposing anti-dumping or countervailing duties are liable to be of direct and individual concern to producers and exporters of the product at issue who are alleged to be involved in dumping or subsidies on the basis of data concerning their commercial activities, including those identified in those measures or concerned by the preliminary investigations (see, to that effect, judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12, and of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 73).
48      In that regard, it should be borne in mind that the applicants must be considered to have challenged, from the application stage, the duties imposed on the imports of the products manufactured by Triangle Tyre and that there is therefore no need to have regard to the clerical error in Annexes A.2 as regards that company (see paragraph 35 above).
49      Furthermore, given that the Commission also disputes that the measure is of direct and individual concern to Triangle Tyre, it must be stated that, in accordance with the case-law recalled by the Commission (see paragraph 47 above), an anti-dumping or anti-subsidy regulation which refers to an exporting producer expressly, imposes a specific anti-dumping or anti-subsidy duty on that exporting producer and sets the amount of that duty is, on that ground alone, such as to be of not only direct but also individual concern to that exporting producer (see, to that effect, judgment of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 22, and of 15 September 2016, Unitec Bio v Council, T‑111/14, EU:T:2016:505, paragraphs 30 to 32).
50      Triangle Tyre is referred to in Annexes I to the contested regulations as a cooperating exporting producer which was not, however, sampled. In that connection, the imports of its products were subject to specific definitive anti-dumping and countervailing duties, the amounts of which are set by the contested regulations. It follows that the contested regulations are of direct and individual concern to that company.
51      In those circumstances, the applicants, as representative associations, have standing to bring proceedings pursuant to the second limb of the sentence in the fourth paragraph of Article 263 TFEU against the definitive anti-dumping and countervailing duties imposed on the imports of the products manufactured by Triangle Tyre.
(2)    Weifang Yuelong Rubber and Hefei Wanli Tire
52      The Commission argues, in essence, that Weifang Yuelong Rubber and Hefei Wanli Tire do not have standing to bring proceedings on the basis of the second and third limbs of the sentence in the fourth paragraph of Article 263 TFEU in so far as, first, the contested regulations are not of individual concern to them and, second, those regulations entail implementing measures with regard to those companies.
53      The applicants dispute the Commission’s arguments.
54      In the present circumstances, it is appropriate to begin by examining whether the applicants have standing to bring proceedings pursuant to the third limb of the sentence in the fourth paragraph of Article 263 TFEU.
55      In that regard, it must be borne in mind that, in order for an action to be admissible pursuant to the third limb of the sentence in the fourth paragraph of Article 263 TFEU, three cumulative conditions must be fulfilled. The contested measure must (i) be of a regulatory nature, (ii) be of direct concern to the applicant and (iii) not entail implementing measures.
56      In the first place, regarding the concept of ‘regulatory act’ used in the third limb of the sentence in the fourth paragraph of Article 263 TFEU, it must be borne in mind that it refers, in principle, to acts of general application other than legislative acts (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 23 and 28 and the case-law cited). The distinction between legislative and non-legislative acts is based, according to the FEU Treaty, on the criterion of the procedure, legislative or not, which led to the adoption of the act (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 58, and order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 65).
57      In the present situation, since the contested regulations impose definitive anti-dumping and countervailing duties on imports of the products manufactured by all the companies other than those they identify by name, they are of general application. Furthermore, those regulations are not legislative acts, as they were not adopted following an ordinary or special legislative procedure. Accordingly, those regulations, in so far as they concern Weifang Yuelong Rubber and Hefei Wanli Tire, are regulatory acts within the meaning of the third limb of the sentence in the fourth paragraph of Article 263 TFEU.
58      In the second place, regarding the condition of direct concern, it must be stated that it requires that the contested measure must directly affect the legal situation of the individual and leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42 and the case-law cited).
59      It is also apparent from case-law that measures imposing anti-dumping or countervailing duties are liable to be of direct concern to companies which are both producers and exporters of the product at issue and are alleged to be involved in dumping or subsidies, as their capacity as exporters is essential in that regard (see, to that effect, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraphs 73 and 74 and the case-law cited, and of 28 February 2019, Council v Marquis Energy, C‑466/16 P, EU:C:2019:156, paragraphs 48 and 49 and the case-law cited).
60      In the present case, the contested regulations impose definitive anti-dumping and countervailing duties on imports of the products manufactured by ‘all other companies’ that are not identified by name in those regulations, such as Weifang Yuelong Rubber and Hefei Wanli Tire.
61      Moreover, the applicants mention that Weifang Yuelong Rubber and Hefei Wanli Tire are exporting producers. The Commission does not dispute that they are exporters. Indeed, it refers to them as exporting producers in its replies to the measures of organisation of procedure.
62      It follows that the contested regulations have a direct effect on the legal position of Weifang Yuelong Rubber and Hefei Wanli Tire by amending the trade regime applicable to imports of their products into the European Union.
63      Further, the contested regulations require the Member States’ customs authorities to levy the duty imposed without leaving them any discretion (see, to that effect, judgment of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 41 and the case-law cited).
64      In those circumstances, the contested regulations are of direct concern to Weifang Yuelong Rubber and Hefei Wanli Tire.
65      In the third place, regarding the absence of implementing measures, it must be borne in mind that the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the sentence in the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 61 and the case-law cited).
66      In that regard, it is true that the customs system, as instituted by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1; ‘the Customs Code’) and of which the contested regulations form part, provides that the receipt of duties fixed by the latter regulations is carried out, in all cases, on the basis of measures adopted by the national authorities (judgment of 10 December 2015, Kyocera Mita Europe v Commission, C‑553/14 P, not published, EU:C:2015:805, paragraph 49). The notification of the customs debt to the debtor provided for in Article 102 of the Customs Code constitutes a measure for implementation of the contested regulations taken in regard to that debtor by the national authorities (see, to that effect, orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 71, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 66 and the case-law cited).
67      However, it is common ground that anti-dumping and countervailing duties are paid by importers of the product concerned into the European Union, not by exporting producers (see, to that effect, judgment of 3 May 2018, Distillerie Bonollo and Others v Council, T‑431/12, EU:T:2018:251, paragraph 62, and Opinion of Advocate General Tanchev in Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:298, point 88).
68      Therefore, since they are not debtors of the customs debt and thus not the addressees of the notification of that debt, exporting producers are not usually informed of that debt. It follows that, in contrast to importers, they cannot exercise effectively the legal remedies provided for by Article 44 of the Customs Code against decisions taken by national customs authorities. As a result, exporting producers would be denied effective judicial protection if they did not have a legal remedy before the EU judicature for the purpose of challenging the lawfulness of the contested regulations.
69      It follows that, although there are implementing measures in respect of the importers, in the form of measures adopted by the national authorities setting the amount of anti-dumping and countervailing duties for the purpose of recovering those duties (judgments of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraphs 16, 17, 38 and 39, and of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraphs 18 and 31), there are no implementing measures, by contrast, in respect of the exporting producers.
70      In those circumstances, it must be found that the contested regulations do not contain implementing measures in respect of Weifang Yuelong Rubber and Hefei Wanli Tire.
71      Consequently, the applicants, as representative associations, have standing to bring proceedings pursuant to the third limb of the sentence in the fourth paragraph of Article 263 TFEU against the definitive anti-dumping and countervailing duties imposed on the imports of the products manufactured by Weifang Yuelong Rubber and Hefei Wanli Tire.
(3)    The definitive countervailing duties in respect of Zhongce Rubber Group
72      In its written reply to the measures of organisation of procedure, the Commission submits that Zhongce Rubber Group did not cooperate in the anti-subsidy procedure and, accordingly, does not have standing to bring proceedings in Case T‑72/19.
73      By that reasoning, similarly to that which it raised in both cases in respect of Triangle Tyre (see paragraph 47 above), the Commission disputes, in actual fact, that the measure is of direct and individual concern to Zhongce Rubber Group in Case T‑72/19.
74      In that regard, it must be stated that Zhongce Rubber Group is referred to in Annex II to the anti-subsidy regulation as an exporting producer which was not sampled and which cooperated in the anti-dumping investigation, but not the anti-subsidy investigation. It follows that that company was identified by name in that regulation and that a subsidy practice was attributed to it personally. Furthermore, that regulation amended the trade regime applicable to imports of its products into the European Union, imposing on them a countervailing duty of EUR 57.28 per unit of the product concerned. Accordingly, even though it did not cooperate in the anti-subsidy procedure, the anti-subsidy regulation must be regarded as being of direct and individual concern to Zhongce Rubber Group, in accordance with the case-law referred to in paragraphs 47, 49 and 59 above.
75      In those circumstances, the applicants, as representative associations, have standing to bring proceedings pursuant to the second limb of the sentence in the fourth paragraph of Article 263 TFEU against the definitive countervailing duties imposed on imports of the products manufactured by Zhongce Rubber Group.
(c)    The applicants’ interest in bringing proceedings regarding the definitive anti-dumping duties in respect of Zhongce Rubber Group
76      According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55 and the case-law cited).
77      An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 56 and the case-law cited).
78      In the present case, it must be borne in mind that Zhongce Rubber Group is referred to in Annex II to the definitive anti-dumping regulation. The imports of the products manufactured by the companies listed in Annex II to that regulation were ultimately subject to an anti-dumping duty of EUR 0 per unit of the product concerned.
79      It must be observed that, by imposing a definitive anti-dumping duty of no value applicable to imports of the products manufactured by some companies including Zhongce Rubber Group, the Commission, in practice, fully exempted those imports from anti-dumping duties. Thus, those companies benefitted from a more favourable trade regime than that applicable to the other Chinese exporting producers, given that the imports of the products manufactured by the latter were made subject to anti-dumping duties, the amount of which remains positive.
80      It follows that the annulment of the definitive anti-dumping regulation is not capable of having favourable legal consequences for Zhongce Rubber Group, so that the action in Case T‑30/19 cannot benefit that company. The same applies accordingly to the applicants themselves, which do not argue that they themselves have an interest in obtaining the annulment of the definitive anti-dumping regulation in so far as it concerns that company.
81      That finding is not called into question by the applicants’ argument that, should the definitive countervailing duty imposed on imports of the products manufactured by Zhongce Rubber Group be annulled, the Commission would then be able to impose an anti-dumping duty on those same imports. This is a future and hypothetical situation which is conditional on the adoption of a separate legal measure and which has no bearing on the applicants’ lack of vested and current interest in bringing proceedings.
82      In those circumstances, the applicants have not shown that they have an interest in bringing proceedings against the definitive anti-dumping duty imposed on the imports of the products manufactured by Zhongce Rubber Group. Accordingly, their claim relating to that duty is inadmissible.
2.      The admissibility of the pleas alleging breach of procedural rights
83      As noted in paragraph 22 above, the Commission raised in its written submissions and maintained at the hearing a plea of inadmissibility alleging that the applicants had no interest in relying on pleas alleging breach of procedural rights. According to the Commission, the applicants have no individual interest in relying on a breach of the procedural rights of their members, which, incidentally, have not transferred such rights expressly to them. Furthermore, even if there had been a breach of the procedural rights of the applicants themselves, it would not affect the outcome of the investigations, and accordingly the applicants have no interest in arguing such a breach either. As a result, some of the pleas are inadmissible.
84      The applicants dispute the Commission’s arguments.
85      As a preliminary point, it must be borne in mind that a plea for annulment is inadmissible on the ground of lack of interest in bringing proceedings where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (see judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49 and the case-law cited).
86      In other words, a plea for annulment is admissible only if it is susceptible of justifying an annulment which would be of advantage to the applicant, that is to say, one in which he or she has a personal interest (judgment of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 38).
87      More specifically, breach of the rights of the defence is an irregularity which by its nature is subjective and which must therefore be raised by the persons concerned themselves (see, to that effect, judgment of 9 September 2009, Diputación Foral de Álava and Others v Commission, T‑30/01 to T‑32/01 and T‑86/02 to T‑88/02, EU:T:2009:314, paragraph 238, and of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 81).
88      Thus, infringement of an individual right may be relied on only by the person whose right has allegedly been infringed, but not by third parties (judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraph 31).
89      The plea of inadmissibility raised by the Commission, alleging that the applicants do not have an interest in relying on pleas alleging breach of procedural rights, must be examined in the light of those considerations.
90      In the first place, it is clear from the outset that, in the context of, inter alia, the fifth pleas, the applicants point out their own participation in the administrative procedure, as interested parties and representative associations, and argue that, during that procedure, the Commission failed to have regard to their own procedural rights by refusing to grant them access to certain information. By contrast, the applicants do not rely on the direct participation of their members in the administrative procedure and do not argue that the procedural rights of those members were breached. It follows that the Commission’s argument that the applicants do not have an interest in relying on pleas alleging breach of the procedural rights of their members is, in the present situation, wholly irrelevant.
91      In the second place, regarding the applicants’ interest in raising pleas alleging breach of their own procedural rights, it must be noted that the Commission appears to argue that the admissibility of those pleas is subject to their effectiveness.
92      However, it should be borne in mind that, in an action for annulment, the ineffective nature of a plea which has been raised refers to its capacity, in the event that it is well founded, to lead to the annulment sought by an applicant; it does not refer to the interest which that applicant may have in raising a specific plea, since this is an issue relating to the admissibility of the action (judgment of 21 September 2000, EFMA v Council, C‑46/98 P, EU:C:2000:474, paragraph 38). As a result, the admissibility of a plea cannot be subject to its effectiveness.
93      Moreover, the applicants have their own interest in the annulment of the contested regulations, on the ground that those regulations were adopted in breach of their rights of the defence.
94      First, in so far as the applicants themselves participated in the anti-dumping and anti-subsidy investigations as interested parties and representative associations, they have procedural rights, which they can seek to protect in the context of the present actions.
95      Second, annulment of the contested regulations for breach of the procedural rights of the applicants themselves would require the Commission to reopen the anti-dumping and anti-subsidy procedures, to allow the observations of the applicants as interested parties and representative associations and thereby to allow them to influence the decision of that institution. Such an annulment could therefore have favourable legal consequences for the applicants.
96      In those circumstances, the Commission’s plea of inadmissibility alleging that the applicants do not have an interest in relying on pleas alleging breach of procedural rights must be rejected.
97      Accordingly, the applicants’ pleas alleging breach of procedural rights are admissible.
D.      Substance of the pleas
98      In each case, the applicants raise six pleas in law in support of their action.
99      The first five pleas allege, for the first ones, errors in the analysis of injury indicators; for the second ones, differences between new and retreaded tyres; for the third ones, errors in the determination of price effects and the level at which the injury to the Union industry would be eliminated; for the fourth ones, errors in the analysis of the causal link between imports of the product concerned and that injury; and, for the fifth ones, breach of the rights of the defence.
100    The sixth plea alleges, in Case T‑30/19, the illegality of an adjustment for indirect taxes made in determining the dumping margin, and, in Case T‑72/19, the infringement of the basic anti-dumping regulation.
101    In the present circumstances, it is appropriate to examine, in turn:
–        first, the second complaint of the second part of the third pleas, alleging failure to carry out a fair price comparison in the calculation of the price undercutting;
–        next, certain complaints alleging, in essence, inconsistencies and breach of the rights of the defence regarding injury indicators and the weighting of data from the sample of Union producers;
–        last, if appropriate, the other pleas and complaints.
102    As a preliminary matter, it must be borne in mind that, according to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63 and the case-law cited, and of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraph 47 and the case-law cited).
103    In that context, the Court must first establish whether the evidence put forward is factually accurate, reliable and consistent and, second, ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see, to that effect, judgment of 26 January 2017, Maxcom v City Cycle Industries, C‑248/15 P, C‑254/15 P and C‑260/15 P, EU:C:2017:62, paragraph 89 and the case-law cited).
1.      The second complaint of the second part of the third pleas, alleging failure to carry out a fair price comparison in the calculation of the price undercutting
104    By the third pleas, the applicants submit that, in assessing the price effects of the dumped or subsidised imports and determining the injury elimination level, the Commission infringed, in Case T‑30/19, Article 3(2)(a), Article 3(3) and Article 9(4) of the basic anti-dumping regulation, and, in Case T‑72/19, Article 8(1)(a), Article 8(2) and Article 15(1) of the basic anti-subsidy regulation.
105    More specifically, in the context of the second part of the third pleas, the applicants submit, in essence, that the Commission relied incorrectly on constructed import prices in order to calculate the price undercutting.
106    By their first complaint, the applicants submit that, for the purpose of calculating the price undercutting, the use of constructed import prices, that is to say, constructed export prices pursuant to Article 2(9) of the basic anti-dumping regulation is, in principle, prohibited, since it is based on theoretical prices, not on actual prices ‘seen and perceived’ by customers within the European Union.
107    By their second complaint, the applicants observe that, in the present situation, the use of constructed export prices did not allow the Commission to carry out a fair comparison, that is, at the same level of trade, between the import price of the product concerned and the price of a like Union industry product.
108    According to the applicants, regarding the sales made by Union producers within the European Union through related selling entities, the Commission took into consideration the prices charged by those entities to the first independent buyers, including selling, general and administrative expenses (‘SG&A expenses’), and the profits incurred by those entities. By contrast, regarding the sales made by Chinese exporting producers within the European Union through related selling entities, the applicants submit that the Commission refused to take into consideration the prices charged by those entities to the first independent buyers and relied on constructed import prices by deducting, and thereby excluding, the SG&A expenses and profits of those entities. As a result, in the case of the same sales model, the Commission calculated differently the import price of the product concerned and the price of a like Union industry product and therefore did not carry out a fair comparison of those prices. In so doing, the Commission unduly increased the injury margin and vitiated the injury analysis and assessment of the causal link.
109    The Commission disputes the applicants’ arguments. The intervener, for its part, does not make any observation regarding those arguments.
110    It is appropriate to begin by examining the second complaint of the second part of the third pleas.
(a)    Preliminary observations
111    It should be borne in mind that, in accordance with Article 3(2) of the basic anti-dumping regulation and Article 8(1) of the basic anti-subsidy regulation, the determination of the existence of injury to the Union industry is to be based on positive evidence and is to involve an objective examination (i) of the volume of the dumped or subsidised imports and the effect of those imports on prices in the Union market for like products and (ii) of the impact of those imports on that industry.
112    With regard more specifically to the price effect of the dumped or subsidised imports, Article 3(3) of the basic anti-dumping regulation and Article 8(2) of the basic anti-subsidy regulation provide for the obligation to give consideration to whether there has been, for those imports, significant price undercutting as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree.
113    The basic anti-dumping regulation and the basic anti-subsidy regulation do not contain any definition of the concept of price undercutting and do not lay down any method for the calculation of that concept (judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 175, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 238).
114    The calculation of the price undercutting of the imports in question is carried out, in accordance with Article 3(2) and (3) of the basic anti-dumping regulation and Article 8(1) and (2) of the basic anti-subsidy regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports. It is used, more broadly, to assess that injury and to determine the injury margin, that is to say, the injury elimination level. The obligation to carry out an objective examination of the impact of the dumped or subsidised imports, as set out in Article 3(2) of the basic anti-dumping regulation and Article 8(1) of the basic anti-subsidy regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of the Union industry when sold in the territory of the European Union. In order to guarantee the fairness of that comparison, prices must be compared at the same level of trade. A comparison of prices obtained at different levels of trade, that is to say, one which does not include all the costs relating to the level of trade which must be taken into account, would necessarily be misleading in its results and would not allow a correct assessment to be made of the injury to the Union industry. Such a fair comparison is a prerequisite of the lawfulness of the calculation of the injury to that industry (judgments of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, T‑122/09, not published, EU:T:2011:46, paragraphs 79 and 85; of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176; and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 239).
115    Moreover, it must be borne in mind that the determination of the existence and amount of injury caused to the Union industry and the existence of a causal link requires an appraisal of complex economic situations in connection with which the EU institutions enjoy a broad discretion (see, to that effect, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46 and the case-law cited), so that, in accordance with the case-law recalled in paragraphs 102 and 103 above, the judicial review of such an appraisal must be limited. That broad discretion and that limited judicial review extend, in principle, also to the choice of the method for the calculation of the undercutting margin (see, to that effect and by analogy, judgment of 16 December 2011, Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09, EU:T:2011:764, paragraph 41).
(b)    The method used by the Commission for the calculation of the price undercutting
116    In recital 149 of the provisional anti-dumping regulation and recital 658 of the anti-subsidy regulation, the Commission stated that it determined the price undercutting during the investigation period by comparing:
–        the ‘weighted average sales prices per product type and segment of the sampled Union producers charged to [independent buyers] on the Union market, adjusted to an ex-works level’; and
–        the ‘corresponding weighted average prices per product type and segment of the imports from the sampled Chinese exporting producers to the first independent customer on the Union market, established on a cost, insurance, freight (CIF) basis, with appropriate adjustments for customs duties and post-importation costs’.
117    Regarding the first point of comparison, namely the prices charged by Union producers, the Commission set out, in recital 178 of the definitive anti-dumping regulation and recital 685 of the anti-subsidy regulation, the items deducted from the price to the first independent buyers in order to adjust them to an ex-works level. It explained that the costs deducted were: ‘transport, insurance costs, handling, loading and ancillary, packing, credit, discounts and commissions’. It also stated that it did not, however, deduct ‘indirect sales expenses, R & D, finance, marketing nor profit’.
118    Furthermore, in its written reply to the measures of organisation of procedure, the Commission confirmed that, in the case of marketing of the like product via selling entities related to Union producers, it had taken into consideration the resale prices charged to the first independent buyers by those related selling entities and had not deducted the SG&A expenses or the profits of those entities.
119    Regarding the second point of comparison, namely the prices charged by Chinese exporting producers, the Commission justified, in recitals 166 to 171 of the definitive anti-dumping regulation and recitals 673 to 678 of the anti-subsidy regulation, the use of constructed import prices where the Chinese exporting producer and the importer are related. It therefore constructed the import prices by using as a starting point the resale prices charged to the first independent buyers by the related importers.
120    More specifically, in recital 171 of the definitive anti-dumping regulation and recital 678 of the anti-subsidy regulation, the Commission explained that ‘in order to allow for a fair comparison, a deduction of [SG&A expenses] and profit from the resale price to [independent buyers] made by the related importer [was] warranted in order to arrive [at] a reliable [Union frontier level] price’.
121    In summary, it is apparent from all the factors recalled in paragraphs 116 to 120 above that, first, regarding the prices charged by Union producers, the Commission based its calculation on the sale or resale prices charged to first independent buyers either directly by Union producers or through their related selling entities. In the latter situation, the like product prices taken into account in calculating the undercutting include SG&A expenses and the profits of the selling entities related to Union producers.
122    Second, regarding the prices of Chinese exporting producers, the Commission based its calculation on actual or constructed import prices at the Union frontier level. Those prices may be either real prices charged by Chinese exporting producers to first independent buyers, or theoretical sales prices charged to related importers that are constructed by the Commission. In the latter situation, the prices of the product concerned taken into consideration in the calculation of the undercutting do not include SG&A expenses or the profits of the selling entities related to Chinese exporting producers.
123    On the basis of the calculation method described in paragraphs 116 to 122 above, and as is apparent from recitals 160 and 162 of the definitive anti-dumping regulation and recitals 659 and 667 of the anti-subsidy regulation, the Commission found that the overall level of price undercutting was approximately 21%. It also found that the weighted average undercutting margin was between 18 and 24% in the three tiers of tyres defined by the contested regulations according to their quality (18 to 20% for tier 1 and 22 to 24% for tiers 2 and 3).
124    Moreover, regarding the sampled Chinese exporting producers, the Commission specified for the first time before the Court that the undercutting margins were, respectively, 30.0% for the products manufactured by the Xingyuan Group, 19.3% for those manufactured by the Giti Group, 22.2% for those manufactured by the Aeolus Group and 17.6% for those manufactured by the Hankook Group.
(c)    The existence of an infringement of the obligation to carry out a fair price comparison
125    In the present case, having regard to the observations in paragraphs 116 to 122 above, it is clear that, when calculating the price undercutting, the Commission systematically took into consideration the sale prices charged to the first independent buyers irrespective of the distribution channels used, in relation to the Union industry but not in relation to the Chinese exporting producers.
126    Where Union producers or Chinese exporting producers sell their products via related selling entities, the Commission based its calculation on prices charged by selling entities related to Union producers and, by contrast, disregarded the prices charged by selling entities related to Chinese exporting producers in favour of import prices constructed at Union frontier level.
127    Therefore, as the applicants submit, in the case of the same sales model characterised by the use of related selling entities, the Commission treated differently the sales of Union producers and those of Chinese exporting producers by taking into consideration, for the former, prices of resale to first independent buyers and, for the latter, constructed import prices at Union frontier level.
128    In the case of such a distribution model, the Court has previously held that when the Commission used the prices of sales to first independent buyers for the like product of the Union industry, the requirement to compare the prices at the same level of trade required it also to compare them with the prices of sales to the first independent buyers (see, to that effect, judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 183, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 247).
129    It should be noted that the marketing of products carried out not directly by the producer, but through selling entities, implies the existence of costs and a profit margin specific to those entities, so that the prices charged by them to independent buyers are generally higher than the prices charged by producers in their direct sales to such buyers and thus cannot be assimilated to those latter prices (judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 184, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 248).
130    In the present case, the Commission included in the price of the like product the SG&A expenses and the profits of the selling entities related to Union producers, while excluding from the price of the product concerned the corresponding expenses and profits of the selling entities related to Chinese exporting producers. It follows that the Commission took into consideration for the like product a price which was inflated in comparison to that of the product concerned and therefore unfavourable to Chinese exporting producers, which carried out all or part of their sales in the European Union through selling entities (see, by analogy, judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 185, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 249).
131    In those circumstances, it must be found that, where sales are made through related selling entities, the calculation of price undercutting was manifestly not made by carrying out a fair comparison of prices at the same level of trade (see, by analogy, judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 188, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 252).
132    That finding is not called into question by the Commission’s objections.
133    In the first place, the Commission contends, in essence, that the way in which exporting producers organise the sale of their products within the European Union, namely either directly to independent buyers or through related selling entities, and the type of customers to which they sell their products, namely either importers or end users, are irrelevant to the way in which price competition takes place on the market. It explains that, irrespective of the distribution channel used by exporting producers and the type of customers, the product concerned is in competition with the like product in the Union industry as soon as the border is crossed. Accordingly, the import prices at Union frontier level are still relevant and potentially comparable to the prices of Union industry sales made, at the same level of trade, either directly (‘ex-works’ prices) or through related selling entities (‘ex-subsidiary’ prices). According to the Commission, this approach allows direct sales (to independent buyers) and indirect sales (to related selling entities), by the same exporting producers or various exporting producers which have organised their distribution channels differently, to be treated identically.
134    In that regard, it must, as a preliminary matter, be recalled that the present complaint relates solely to whether, in the present situation, the Commission carried out a fair comparison between prices at the same level of trade. In order to examine that complaint, it must not necessarily be determined at what level of trade the price comparison could or had to be carried out, nor must a general assessment necessarily be made of the relevance of import prices at Union frontier level and of the lawfulness, in absolute terms, of the construction of some prices for the purpose of calculating the price undercutting. First, those questions relate to a separate complaint, namely the first complaint of the second part of the third pleas (see paragraph 106 above). Second, irrespective of the lawfulness and relevance of the level of trade chosen by the Commission as relates to exporting producers or as relates to Union producers, the comparison of the prices carried out by that institution must always be fair and, for that purpose, relate to prices which are all at the same level of trade.
135    That being said, the Commission contends, in essence, that, regarding the prices of Chinese exporting producers, import prices at Union frontier level are always relevant, whether they are actual prices charged to independent buyers or constructed prices deemed to be charged to related selling entities.
136    In that regard, the approach taken and defended by the Commission implies that the prices charged by Chinese exporting producers to independent buyers, on the one hand, and the prices charged by the same Chinese exporting producers to their related selling entities, on the other hand, are at the same level of trade. In addition and more generally, the implicit but necessary consequence of that approach is that the sales prices charged by those exporting producers to independent buyers, on the one hand, and the resale prices charged to such buyers by selling entities related to those exporting producers, on the other hand, are not at the same level of trade.
137    Should that approach be deemed appropriate, it would, admittedly, justify the use of constructed import prices where those exporting producers market all or part of their products through related selling entities.
138    However, the approach in question does not, in principle, justify the import prices charged by Chinese exporting producers, either actual prices in the event of sales to independent buyers or constructed prices in the event of sales to selling entities related to those exporting producers (which exclude the SG&A expenses and profits of those entities), being, as in the present situation, compared with resale prices charged to independent buyers by selling entities related to Union producers (which include the SG&A expenses and profits of those entities), in particular. The latter prices are usually situated at a later level of trade than the one common to the other prices taken into consideration, both as relates to exporting producers and as relates to Union producers.
139    Ultimately, the approach in question should logically have led the Commission also to take into consideration, as the sole level of trade as relates to Union producers, that of the sales of Union producers to all of their customers, whether they are independent buyers or selling entities related to those producers. This would have involved the Commission constructing the sale prices of Union producers where those producers sell their products to related selling entities and, accordingly, deducting and therefore excluding the SG&A expenses and profits of the selling entities related to Union producers.
140    The position could be different only if it were established that the selling entities related, respectively, to Chinese exporting producers and to Union producers played different economic roles.
141    However, in the present situation, the Commission merely suggests that the sale prices charged directly to the first independent buyers by Union producers (‘ex-works’ prices), on the one hand, and the resale prices charged to those buyers by the selling entities related to those producers (‘ex-subsidiary’ prices), on the other, are at the same level of trade. It does not explain how this could be the case when, at the same time, it considers, implicitly but necessarily, that the sales prices charged directly to the first independent buyers by Chinese exporting producers, on the one hand, and the resale prices charged to such buyers by selling entities related to those exporting producers, on the other hand, are not at the same level of trade (see paragraph 136 above).
142    In reply to a question put to it at the hearing, the Commission stated that Union producers and their related selling entities could be regarded as single economic entities, as those related selling entities carry out tasks usually attached to an internal trade department.
143    However, it must be observed that, in recital 105 of the definitive anti-dumping regulation and in its written observations, the Commission also stated, first, that the Chinese exporting producers and their related selling entities, in the case of the Hankook Group in particular, were single economic entities and, second, that the existence of such single economic entities did not prevent it from constructing import prices.
144    In those circumstances, the Commission does not establish or even claim that the selling entities related, respectively, to Union producers and to Chinese exporting producers play different economic roles, so that the SG&A expenses and profits of those related selling companies should be included in the price of the like product, but not in the price of the product concerned.
145    It follows that, even if it were to be deemed appropriate, the Commission’s approach consisting in taking into consideration solely import prices, actual or constructed, at Union frontier level does not prove, in the present situation, that the comparison of those prices with the resale prices charged to first independent buyers by selling entities related to Union producers is fair.
146    In the second place, in order to justify use of constructed import prices at Union frontier level, the Commission relies on, first, Council Implementing Regulation (EU) No 217/2013 of 11 March 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foils in rolls originating in the People’s Republic of China (OJ 2013 L 69, p. 11) (recitals 51 to 59 of that implementing regulation) and, second, the report of a special panel of the World Trade Organisation (WTO) on the dispute ‘China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States’ adopted on 25 September 2013 (WT/DS 427/R) (points 7.485 to 7.489 of the report).
147    In that regard, it is sufficient to note that, in both the implementing regulation and in the report referred to in paragraph 146 above, the constructed import prices at Union frontier level had been compared with sales prices charged by Union producers, not with resale prices charged by selling entities related to those producers. Thus, the examples cited by the Commission are irrelevant to the outcome of the present disputes.
148    In the third place, the Commission contends that the circumstances of the cases which resulted in the judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235), were highly specific, in so far as only two exporting producers had cooperated in the investigation and the ‘vast majority’ of the sales of the exporting producer in question were made through related selling entities. Accordingly, that approach is not automatically transposable to the present cases, in which the percentage of sales made through selling entities related to Chinese exporting producers is much lower.
149    In that regard, it must be noted, first, that there is an obligation to compare prices at the same level of trade irrespective of the number of cooperating exporting producers and, second, that it does not apply only where exporting producers make the ‘vast majority’ of their sales through related selling entities. It follows that the principles set out in the judgments cited in paragraphs 114 and 148 above remain fully applicable here.
150    Moreover, it must be observed that, according to the Commission’s data, the percentage of sales of the sampled Chinese exporting producers through related selling entities is 0% for the Xingyuan Group, 34% for the Giti Group, 19% for the Aeolus Group and 98.6% for the Hankook Group. In addition, in its reply to a measure of organisation of procedure, the Commission specified that the percentage of sales made through related sales entities is 46.9% of the sample of Chinese exporting producers as a whole and 87% of the sample of Union producers as a whole. It follows that the proportion of sales made through related selling entities is high to very high as regards each of the two samples as a whole.
151    That situation does not appear to be fundamentally different to that of the cases referred to in paragraph 148 above. In those cases, the Court noted that, first, the exporting producer in question performed ‘a majority’ of its sales in the European Union through related selling entities and, second, that ‘most’ of the sales in the European Union by the Union industry had been carried out by selling entities related to the two Union producers which cooperated in the investigation (judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraphs 184 and 185, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 249).
152    In those circumstances, the Commission’s objection summarised in paragraph 148 above must be rejected.
153    Accordingly, it is appropriate to endorse the claim that the Commission manifestly failed to carry out a fair comparison between prices at the same level of trade, at the very least where the product concerned and the like product are both sold through related selling entities (see paragraph 131 above).
154    Therefore, it must be considered that the calculation of the price undercutting of the product concerned carried out by the Commission in the contested regulations is vitiated by an error of law and a manifest error of assessment and that, as a result, that calculation infringes Article 3(2) and (3) of the basic anti-dumping regulation and Article 8(1) and (2) of the basic anti-subsidy regulation.
(d)    The impact of the infringement of the obligation to carry out a fair price comparison
155    For the contested regulations to be annulled it is not sufficient that the Commission committed an error in the method for the calculation of the price undercutting margin. That error must also have had an impact on the determination of whether there is injury, the amount of that injury, or on the analysis of the causal link and thus on the content of the contested regulations themselves (see, to that effect and by analogy, judgments of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317, paragraph 167, and of 25 October 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 119).
156    Accordingly, it is necessary to examine, in the present situation, whether the error committed by the Commission had an impact on the content of the contested regulations. For the purposes of this examination, it is appropriate to distinguish the potential impact of that error on (i) the level of price undercutting and on the analysis of the injury and of the causal link and (ii) the injury margin and the amount of the definitive anti-dumping and countervailing duties at issue.
(1)    The impact on the level of price undercutting and on the analysis of the injury and of the causal link
(i)    The level of price undercutting
157    In its written submissions and at the hearing, the Commission contended that, assuming it to be established, the error for which it has been criticised did not have a material impact on the level of price undercutting. That undercutting remains significant for a vast majority of the imports.
158    In the first place, in its rejoinder, the Commission produced alternative calculations of the price undercutting for each of the four groups of sampled Chinese exporting producers. In those alternative calculations, it added the SG&A expenses and profits of the selling entities related to those exporting producers. It went on to compare each transaction with a more detailed product control number (PCN) code, now differentiating between four types of customers, namely (i) wholesalers, distributors, or traders; (ii) retailers; (iii) users and (iv) others (such as original equipment manufacturers, public transportation entities or the army). According to the Commission’s alternative calculations, the price undercutting is in fact slightly higher than that found in the contested regulations for each of the four groups of Chinese exporting producers sampled. The price undercutting rises from 30.0 to 32.4% for the Xingyuan Group, from 19.3 to 23.1% for the Giti Group, from 22.2 to 22.4% for the Aeolus Group and from 17.6 to 19.2% for the Hankook Group.
159    In that connection, it must be stated that, in its alternative calculations, the Commission did not merely add the SG&A expenses and profits of the selling entities related to Chinese exporting producers. It also modified another parameter by using a more detailed PCN code which now also includes the type of customers. It follows that the Commission has modified the method for the calculation of price undercutting on which the contested regulations are based. Accordingly, if the Court were to take into consideration the Commission’s alternative calculations, it would be substituting grounds.
160    It is appropriate to recall that, according to settled case-law, the Court cannot, in the context of an action for annulment, substitute its own reasoning for that of the author of the contested act (see judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 64 and the case-law cited). It follows that the Commission cannot properly rely, in support of the contested regulations, on reasons which were not contained in those regulations and which it raised only after the action was brought (see, to that effect, judgment of 21 March 1996, Farrugia v Commission, T‑230/94, EU:T:1996:40, paragraph 36 and the case-law cited).
161    Therefore, the alternative calculations related to price undercutting produced by the Commission in the rejoinder cannot be taken into consideration by the Court in order to assess the impact on price undercutting of the error committed.
162    In the second place, following a measure of organisation of procedure, the Commission produced new alternative calculations related to price undercutting, merely adding the SG&A expenses and profits of the selling entities related to Chinese exporting producers and not changing the PCN code used in the contested regulations. According to the Commission, after carrying out the new alternative calculations, the price undercutting remains stable at 30.0% for the Xingyuan Group, and decreases from 19.3 to 18.5% for the Giti Group, from 22.2 to 16.8% for the Aeolus Group and from 17.6 to 7.3% for the Hankook Group.
163    Should these calculations be accurate (which it is for the Commission to verify in the event that the actions are upheld), the new alternative calculations in question make it possible to assess the established price undercutting levels resulting from the method recommended by the applicants, consisting in the integration of the SG&A expenses and profits of the selling entities related to Chinese exporting producers and to Union producers. Such a method would have allowed a fair comparison of the prices where the product concerned and the like product are both sold through related selling entities.
164    It is clear from the new alternative calculations in question that, had the Commission followed the method recommended by the applicants, the price undercutting would have been lower in respect of three of the four groups of sampled Chinese exporting producers, namely the Giti, Aeolus and Hankook Groups. According to the data provided by the Commission regarding the relative weight of each of the groups of sampled Chinese exporting producers in the total export sales made by those groups (17% for the Xingyuan Group, 30% for the Giti Group, 17% for the Aeolus Group and 36% for the Hankook Group), the Giti, Aeolus and Hankook Groups represent together 83% of the total export sales of the sample. Furthermore, the difference is significant for at least two of those groups, namely the Aeolus Group and the Hankook Group which, together, represent 53% of those sales.
165    In those circumstances, taking into consideration the relative weight of the various groups of sampled Chinese exporting producers in particular, it is apparent that the overall level of price undercutting having regard to the sample as a whole would also have been significantly lower if the Commission had followed the method recommended by the applicants. Accordingly, the weighted average undercutting margin would have been markedly lower than the 21% stated in the contested regulations (paragraph 123 above).
166    The new alternative calculations in question therefore show that the error committed by the Commission was liable to have an impact on the price undercutting level and, in the present situation, did lead to a significant overestimation of the said price undercutting.
167    Admittedly, it is apparent that, as observed by the Commission, even after the new alternative calculations in question, the price undercutting margin remains unchanged for the Xingyuan Group and remains significant for the four groups of Chinese exporting producers.
168    However, it must be observed that the Commission found that there was serious injury to the Union industry and that there was a causal link, basing its finding on the overall undercutting level of 21% alone, not on the individual undercutting levels of the four sampled Chinese exporting producers (see paragraph 123 above). That overall undercutting level would have been significantly lower if the Commission had not committed the error for which it is criticised (see paragraph 165 above).
169    In the third place, the Commission relies on import statistics, namely Eurostat (Statistical Office of the European Union) statistics and Chinese statistics, as well as on Union production statistics, namely data provided by the sampled Union producers. It is apparent from those statistics that the differences between import prices and Union industry prices are very significant since, during the period considered, the average unit price of the Chinese imports was only between 59.08 and 64.13% of Union product prices.
170    Nonetheless, it is clear that, regarding imports originating in China, the Commission now relies on macroeconomic data, not statistics from the sampled Chinese exporting producers. Moreover, it relies, both in respect of imports and in respect of Union production, on raw, overall and non-weighted statistics, and does not take into account the types of products or the segmentation of the product concerned into three tiers. Accordingly, the various statistics relied on by the Commission cannot justify the amount of the undercutting margin, calculated from average sales prices weighted by segment and product type according to the method described in paragraphs 116 to 122 above.
171    It follows from the foregoing that the Commission’s infringement of its obligation to carry out a fair price comparison had an impact, which is, moreover, significant, on the determination of the price undercutting level.
(ii) The analysis of the injury and of the causal link
172    The Commission contends that it is not established that the finding relating to the existence of injurious dumping or injurious subsidies would have been different if the error in the calculation of the price undercutting alleged by the applicants had not been committed.
173    In that regard, it is apparent from recitals 150, 217, 219 and 230 of the provisional anti-dumping regulation and recitals 258 and 265 of the definitive anti-dumping regulation, on the one hand, and from recitals 659, 830, 837, 839, 842 and 868 of the anti-subsidy regulation, on the other hand, that, in order to establish the existence of injury to the Union industry and of a causal link between the dumped or subsidised imports and that injury, the Commission based its reasoning on, inter alia, the price undercutting. It observed several times that that undercutting was ‘significant’ or ‘substantial’. More specifically, in recital 219 of the provisional anti-dumping regulation and recital 839 of the anti-subsidy regulation, it stated that that substantial price undercutting was, together with the steep increase in imports, one of the two chief factors to be considered in assessing the effects of the dumped or subsidised imports.
174    It follows that the Commission gave decisive importance to the price undercutting as calculated in the contested regulations and that that undercutting resulted in the finding that the imports of the product concerned gave rise to the injury to the Union industry. That finding is not called into question by the Commission’s claim that it also considered other factors.
175    It must be added that, in the context of the judicial review provided for in Article 263 TFEU, it is not for the Court to assess whether the Commission would also have found that there was injurious dumping or injurious subsidies on the basis of a level of price undercutting lower than the – markedly overestimated – level adopted in the contested regulations.
176    In those circumstances, it must be found that the error committed by the Commission in calculating the price undercutting had an impact on the Commission’s finding that there was injury and a causal link.
(2)    The impact on the injury margins and on the amount of the definitive anti-dumping and countervailing duties at issue
(i)    The injury margins
177    In its written submissions and at the hearing, the Commission argued, in essence, that it was not established that the injury margins would have been lower if the import prices had included the SG&A expenses and the profits of the related selling entities.
178    In the first place, the Commission stresses the difference between price undercutting and underselling (the undercutting of the indicative prices or injury margin), which it claims was not addressed in the judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235).
179    In that connection, it must be noted that the choice of the level of trade and whether or not to include the SG&A expenses and profits of the selling entities related to Chinese exporting producers and to Union producers affect the level of import prices and the level of Union industry prices. As is clear from recitals 254 to 256 of the provisional anti-dumping regulation, the calculation of the injury margin consists in comparing the import prices used in the calculation of the price undercutting, on the one hand, with the non-injurious prices of the like product including a target profit reflecting normal market conditions, on the other hand. Accordingly, an error relating to the level of trade at which the price comparison is carried out is liable to have an impact on both the calculation of the price undercutting and the calculation of the injury margin.
180    Moreover, contrary to the Commission’s claim, the Court did in fact address the question of injury margins in the judgments cited in paragraph 178 above, stating that it cannot be excluded that, if the price undercutting had been calculated correctly, the injury margin of the Union industry would have been established at a level below that of the dumping margin (judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 194, and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 258).
181    In the second place, in the rejoinder, the Commission recalculated the injury margins using the same methods as that used to recalculate the price undercutting (paragraph 158 above). According to those alternative calculations, the injury margins are in fact even higher than those used in the contested regulations for each of the four groups of Chinese exporting producers sampled. Following those alternative calculations, the injury margins rise from 55.1 to 60.8% for the Xingyuan Group, from 29.6 to 36.8% for the Giti Group, from 37.3 to 40.2% for the Aeolus Group and from 23.4 to 29.6% for the Hankook Group.
182    In that connection, it is sufficient to note that, for the same reasons as those set out in paragraphs 159 to 161 above in respect of the alternative calculations relating to the price undercutting, the alternative calculations relating to the injury margin produced by the Commission in the rejoinder cannot be taken into consideration without a substitution of grounds being made.
183    In the third place, following a measure of organisation of procedure, the Commission carried out new alternative calculations relating to the injury margin using the same method as that used for the new alternative calculations relating to the price undercutting, that is to say, without changing the PCN code used in the contested regulations (paragraph 162 above). Following those new alternative calculations, the injury margin remains stable at 55.1% for the Xingyuan Group and decreases from 29.6 to 28.5% for the Giti Group, from 37.3 to 29.8% for the Aeolus Group and from 23.4 to 10.3% for the Hankook Group.
184    Should these calculations be accurate (which it is for the Commission to verify in the event that the actions are upheld), the new alternative calculations in question make it possible to assess the injury margins which would have been found by the Commission if it had followed the method recommended by the applicants and had taken into account the SG&A expenses and profits of the selling entities related to Chinese exporting producers.
185    Here, it may be helpful to distinguish between three situations.
186    First, the injury margin would have been lower for three of the four groups of sampled Chinese exporting producers, namely the Giti, Aeolus and Hankook Groups. Furthermore, the difference found would have been significant for at least two of those groups, namely the Aeolus Group and the Hankook Group.
187    Second, taking into consideration the relative weight of the various groups of sampled Chinese exporting producers in particular, it seems that the injury margin in respect of the sample as a whole would also have been significantly lower if the Commission had followed the method recommended by the applicants. Accordingly, the weighted average injury margin would have been markedly lower than that of 32.39% used in the contested regulations. However, as is apparent from Table 11 of the definitive anti-dumping regulation and from the table in recital 933 of the anti-subsidy regulation, it was the latter injury margin which was used for the Chinese exporting producers listed in Annexes I and II to the contested regulations which had cooperated, as the case may be, in the anti-dumping investigation or the anti-subsidy investigation.
188    In those circumstances, the new alternative calculations in question show that the error committed by the Commission led it to overestimate the injury margins used for all of the exporting producers listed in paragraph 28 above which either belong to the Giti, Aeolus and Hankook Groups or are listed in Annexes I and II to the contested regulations. That finding is not called into question by the fact, pointed out by the Commission, that, even after those new alternative calculations, the injury margin remains significant in respect of each of the groups of Chinese exporting producers.
189    Third, following the new alternative calculations in question, the injury margin remains unchanged at 55.1% for the Xingyuan Group. As is apparent from Table 11 of the definitive anti-dumping regulation and from the table in recital 933 of the anti-subsidy regulation, it was that injury margin – the highest found for the Chinese exporting producers sampled – which was applied in respect of the Chinese exporting producers which had not cooperated, as the case may be, in the anti-dumping investigation or the anti-subsidy investigation. In practice, that residual injury margin of 55.07% exactly is applicable to ‘all other companies’ that are not identified by name in the contested regulations, Weifang Yuelong Rubber and Hefei Wanli Tire in particular. It is also applicable to Zhongce Rubber Group in the anti-subsidy procedure alone, as that company is referred to in Annex II to the anti-subsidy regulation.
190    However, it must be observed that the new alternative calculations in question make it possible merely to offset the effects of the error consisting in the comparison of the import sales prices constructed at Union frontier level, on the one hand, with resale prices charged by selling entities related to Union producers, on the other hand. By contrast, they do not make it possible to offset the potential effects of the error consisting in the comparison of actual sales prices charged directly to Union customers by Chinese exporting producers, on the one hand, and the resale prices charged by selling entities related to Union producers, on the other hand. The latter comparison is also one of the constituent elements of the absence of a fair comparison of prices at the same level of trade (see paragraphs 138 and 145 above).
191    In those circumstances, it cannot be ruled out entirely that, if the Commission had carried out a fair comparison of prices at the same level of trade, it would have used, for the Xingyuan Group and, accordingly, for the three companies referred to in paragraph 189 above, an injury margin below that of 55.07% used in the contested regulations.
192    Therefore, it must be considered that the Commission’s infringement of its obligation to carry out a fair price comparison had, or was liable to have, an impact on the determination of the injury margins for all of the Chinese exporting producers, whether or not they were identified in the contested regulations.
(ii) The amount of the definitive anti-dumping and countervailing duties at issue
193    In its written submissions, the Commission refers to the ‘lesser-duty rule’. More specifically, in Case T‑72/19, it contends that the applicants’ reasoning is completely ineffective in so far as, under that rule, the level of the definitive countervailing duties was established by reference to the amount of the subsidies determined, not by reference to the injury margin.
194    In that connection, it should be borne in mind that, under the second paragraph of Article 9(4) of the basic anti-dumping regulation, the amount of a definitive anti-dumping duty must not exceed the margin of dumping established but it should be less than that margin if such lesser duty would be adequate to remove the injury to the Union industry. Similarly, the third paragraph of Article 15(1) of the basic anti-subsidy regulation states that the amount of a definitive countervailing duty must not exceed the total amount of countervailable subsidies established but it should be less than that amount of countervailable subsidies if such lesser duty would be adequate to remove the injury to the Union industry.
195    It follows that, when the Commission imposes both an anti-dumping duty and a countervailing duty, those duties cannot, alternatively or cumulatively, exceed the level of the injury margin (see, to that effect, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 217).
196    In the present case, it is apparent from Table 11 of the definitive anti-dumping regulation and the table in recital 933 of the anti-subsidy regulation that, for all the Chinese exporting producers, the injury margin (which ranges from 23.41 to 55.07%) was established at a level below the dumping margin (which varies between 56.8 and 106.7%) but above the subsidy margin (which varies between 2.06 and 51.08%). In those circumstances, and as follows from recital 929 of the anti-subsidy regulation, the Commission decided to impose (i) a definitive countervailing duty set at the level of the definitive amounts of the countervailable subsidies and (ii) a definitive anti-dumping duty making it possible to reach the level at which the injury is removed without exceeding that level. Nevertheless, no definitive anti-dumping duty was established in relation to the exporting producers listed in Annexes II to the contested regulations, such as Zhongce Rubber Group (paragraph 78 above), in respect of which the injury margin used is lower in the anti-dumping procedure (32.39%) than in the anti-subsidy procedure (55.07%).
197    First, it follows that, for Chinese exporting producers, whether or not they were identified in the contested regulations, save for those listed in Annexes II to those regulations, the cumulative rate of the definitive anti-dumping duty and the definitive countervailing duty is equal to the injury margin. As a result, under the ‘lesser-duty rule’ enshrined in the provisions recalled in paragraph 194 above and the case-law recalled in paragraph 195 above, any error affecting the calculation of the injury margin has an effect on the lawfulness of the total cumulative amount of the definitive anti-dumping and countervailing duties imposed on the products manufactured by those exporting producers. However, as noted in paragraph 192 above, the price comparison method used by the Commission distorted the calculation of the injury margin for all the Chinese exporting producers, whether or not they were identified in the contested regulations.
198    Second, regarding the exporting producers listed in Annexes II to the contested regulations, such as Zhongce Rubber Group, they have, admittedly, been subject to a definitive countervailing duty alone, the rate of which (51.08%) is lower than their injury margin in the anti-subsidy procedure (55.07%). However, having regard to, inter alia, the slight difference between the rate of that definitive countervailing duty and that injury margin, it cannot be ruled out that, if that injury margin had been calculated correctly, it would have been established at a lower level than that of the subsidy margin.
199    Therefore, the Court finds that the Commission’s infringement of its obligation to carry out a fair price comparison had an impact on the total cumulative amount of the definitive anti-dumping and countervailing duties for all the Chinese exporting producers, whether or not they were identified in the contested regulations.
200    It follows from the foregoing that the error found in the calculation of the price undercutting had an impact on the Commission’s analysis of the existence of injury and of a causal link and, moreover, on its calculations relating to the amount of the definitive anti-dumping and countervailing duties. It follows that that error is capable of affecting the lawfulness of the contested regulations.
201    Accordingly, the second complaint of the second part of the third pleas is well founded and must be upheld.
(e)    The principle and scope of the annulment as a result of the infringement of the obligation to carry out a fair price comparison
202    The fact that the second complaint of the second part of the third pleas has been upheld is, in itself, such as to justify a ruling that the contested regulations must be annulled in so far as those regulations impose definitive anti-dumping and countervailing duties on the imports of the products manufactured by the exporting producers listed in paragraph 28 above, subject to the finding of inadmissibility in paragraph 82 above.
203    Nevertheless, the Commission claims that the Court should, in the event that the present complaint is upheld, annul the contested regulations only in so far as the definitive anti-dumping and countervailing duties at issue were established at a higher level than the injury margin resulting from the new alternative calculations it carried out.
204    In that regard, first, it must be noted that the error committed by the Commission in calculating the price undercutting had an impact on its analysis of the very existence of injury and of the causal link (see paragraphs 176 and 200 above), with the result that it must be penalised by the complete annulment of the definitive anti-dumping and countervailing duties at issue.
205    Second, it has not been established from the evidence in the file that the new alternative calculations carried out by the Commission are sufficient to offset completely the error committed (see paragraphs 190 and 191 above). It follows that those calculations do not make it possible to determine precisely to what extent the definitive anti-dumping and countervailing duties at issue remain well founded in part.
206    Third, the choice of the relevant level of trade to carry out a fair price comparison is a necessary preliminary step to calculate the price undercutting, the injury margin and the applicable anti-dumping duty or countervailing duty rate. It follows that the modification of the level of trade on which the Commission relied in order to carry out a fair price comparison amounts to a substitution of grounds and affects the very substance of the contested regulations. Accordingly, the definitive anti-dumping and countervailing duties at issue cannot be maintained, even in part, on the ground that they are well founded in respect of part of their amount (see, to that effect and by analogy, judgment of 15 September 2016, Unitec Bio v Council, T‑111/14, EU:T:2016:505, paragraph 76).
207    Therefore, the fact that the second complaint of the second part of the third pleas has been upheld is such as to lead to the annulment of the definitive anti-dumping and countervailing duties at issue in their entirety, in so far as those duties are challenged by admissible claims (see paragraph 202 above).
2.      Certain complaints alleging inconsistencies and breach of the rights of the defence regarding injury indicators and the weighting of data from the sample of Union producers
208    The Court finds it appropriate to examine certain complaints alleging, in essence, inconsistencies and breach of the rights of the defence regarding injury indicators and the weighting of data from the Union producers sampled.
209    In that connection and as a preliminary point, it should be borne in mind that, when determining the injury suffered by the Union industry, the Commission assessed the impact of the imports on the Union industry in the light of various macroeconomic and microeconomic indicators. Regarding the microeconomic indicators, that institution relied on data from the Union producers sampled. During the anti-dumping and anti-subsidy investigations and at the provisional anti-dumping regulation stage, those data were weighted by way of two adjustments related, first, to the size of the enterprises (‘the first weighting adjustment’) and, second, to the quality of the tyres produced (‘the second weighting adjustment’). The first weighting adjustment was based on an allocation key in respect of the sales made by large enterprises, on the one hand, and small and medium-sized enterprises (SMEs), on the other (‘the allocation key’). At the stage of the contested regulations, the Commission maintained the first weighting adjustment but decided not to apply the second weighting adjustment.
210    Regarding the analysis of the injury suffered by the Union industry, the applicants rely on three complaints in particular in each of the two cases.
211    First, by the first complaint of the second part of the first pleas, the applicants criticise the Commission for having used, for the entire period considered, a ‘fixed’ allocation key based on the data from 2016 alone.
212    Second, by the third part of the first pleas, the applicants criticise the Commission for failing to correct the weighted data for all the indicators and all the tiers following its decision not to apply the second weighting adjustment.
213    Third, by the second part of the fifth pleas, the applicants criticise, in essence, the Commission for refusing to grant them access to certain non-confidential information, thereby breaching their rights of the defence.
214    In the present circumstances, it is appropriate to examine, first and together, the complaints summarised in paragraphs 211 and 212 above, which relate to the validity of the contested regulations, followed by the complaint summarised in paragraph 213 above, which relates to compliance with essential procedural requirements.
(a)    The use of a fixed allocation key and the failure to correct the weighted data
215    It is common ground that, at the stage of the anti-dumping and anti-subsidy investigations and at the stage of the provisional anti-dumping regulation, the Commission applied the two weighting adjustments referred to in paragraph 209 above in its calculation of all the microeconomic indicators. Regarding the first weighting indicator, it calculated an allocation key between large enterprises and SMEs (84.4% – 14.6%) on the basis of data relating to 2016, from which it was apparent that the share of SME sales was 14.6%. It went on to apply that ‘fixed’ allocation key for the entire period considered in its calculation of the microeconomic indicators for 2014 to 2016 and for the investigation period.
216    At the stage of the contested regulations, the Commission changed in part its method for weighting the data of the sample of Union producers.
217    First, as is apparent from recitals 188 to 192 and Table 4 of the definitive anti-dumping regulation as well as recitals 707 to 711 and Table 5 of the anti-subsidy regulation, the Commission recalculated the allocation key on an annual basis, taking into consideration some of the applicants’ remarks relating to the ‘hot’ and ‘cold’ retreading processes. It thus re-assessed the share of SME sales in the total sales carried out within the European Union by Union producers, that share then amounting to 16.9% in 2014, 15.3% in 2015, 13.7% in 2016 and 13.2% during the investigation period.
218    Second, as is apparent from recitals 194 and 195 of the definitive anti-dumping regulation and recitals 713 and 714 of the anti-subsidy regulation, the Commission decided not to apply the second weighting adjustment given the lack of data making it possible to calculate the weighting of tyre tiers throughout the period considered.
219    Following those changes to the weighting method, the Commission recalculated, in the contested regulations, the profitability of sales in the European Union at the level of the Union industry as a whole (Table 5 of the definitive anti-dumping regulation and Table 16 of the anti-subsidy regulation) and at tier 3 level (Table 6 of the definitive anti-dumping regulation and Table 20 of the anti-subsidy regulation). It follows from the explanations given by the Commission in its written reply to the measures of organisation of procedure that those new calculations relating to the profitability of the Union industry take into consideration both the revision of the allocation key and the decision not to apply the second weighting adjustment.
220    By contrast, it is clear that the Commission did not recalculate, in the contested regulations, either the profitability of tiers 1 and 2 or the other microeconomic indicators, namely (i) prices and factors affecting production costs, (ii) labour costs, (iii) inventories and (iv) cash flow, investments and return on investments.
221    The Commission merely stated, in essence, in recitals 193, 196 and 197 of the definitive anti-dumping regulation and recitals 712, 777 and 786 of the anti-subsidy regulation, that, in the light of the revised calculations of the allocation key, overall profitability and profitability of tier 3, the findings based on the trends examined at the stage of the anti-dumping and anti-subsidy investigations and at the stage of the provisional anti-dumping regulation remained valid for all the microeconomic indicators analysed at the level of the Union industry as a whole and at the level of that tier.
222    Furthermore, at the hearing, the Commission stated that, following the revision of the weighting, it had recalculated internally the microeconomic indicators other than overall profitability and the profitability of tier 3, without, however, disclosing the revised indicators in the contested regulations.
223    Thus, as regards the microeconomic indicators other than the overall profitability and the profitability of tier 3, the Commission did not rely, in the contested regulations, on new calculations of each of those indicators taking into consideration the revision of the weighting method. Indeed, the Commission continued to rely on its initial calculations, which are reproduced in the provisional anti-dumping regulation (Tables 7 to 16) and in the anti-subsidy regulation (Tables 9 to 15 and 17 to 19).
224    In those circumstances, the contested regulations are vitiated by a manifest inconsistency, since the Commission changed its weighting method without assessing the impact thereof on the microeconomic indicators other than overall profitability and the profitability of tier 3.
225    However, the Commission disputes the very need to revise the microeconomic indicators other than overall profitability and the profitability of tier 3.
226    Regarding the absence of revision of tiers 1 and 2, the Commission notes, correctly, that SMEs were present in tier 3 alone. It follows that the revision of the allocation key could not have had an impact on the profitability of tiers 1 and 2. It should be added that the decision not to apply the second weighting adjustment, which was intended to give greater weight to sales in tier 3, could not change the profitability specific to each tier, only the overall profitability of the Union industry. The Commission is therefore entitled to argue that it was not necessary to recalculate the profitability of tiers 1 and 2 following the change to the weighting method.
227    As regards the absence of revision of microeconomic indicators other than profitability, the Commission contends that those indicators were calculated only as a whole. However, first, it must be observed that the revision of the allocation key has an impact on all the microeconomic indicators, even if calculated only at the level of the Union industry as a whole. Second, it is apparent from Tables 8 to 10 and 14 to 16 of the provisional anti-dumping regulation and Tables 10 to 12 and 17 to 19 of the anti-subsidy regulation that some of the microeconomic indicators other than profitability, namely sales prices and factors affecting production costs and cash flow, investments and investment returns, were the subject of a segmented analysis for each of the three tiers. Therefore, it was, in principle, necessary to recalculate all microeconomic indicators other than profitability as a result of the change to the weighting method.
228    Moreover, the Commission does not dispute that all the relevant data in order to recalculate all microeconomic indicators other than profitability were available to it. In particular, it had annual data on the share of SME sales and, accordingly, an allocation key on an annual basis (see paragraph 217 above). Moreover, it stated at the hearing that it had internally recalculated microeconomic indicators other than profitability (see paragraph 222 above).
229    In those circumstances, it must be held that the Commission did not use all the relevant data available to it that must be taken into consideration in order to assess a complex situation, as required by the case-law cited in paragraph 103 above. Therefore, it cannot be considered that it carried out an objective examination of the impact of the dumped or subsidised imports, in accordance with Article 3(2) of the basic anti-dumping regulation and Article 8(1) of the basic anti-subsidy regulation. It must therefore be found that the analysis of the microeconomic indicators other than profitability and, as a result, the determination of injury carried out by the Commission in the contested regulations are vitiated by an error of law and a manifest error of assessment.
230    In accordance with the case-law referred to in paragraph 155 above, it is necessary to examine, in the present situation, whether the error committed by the Commission had an impact on the content of the contested regulations.
231    In that regard, the Commission argues, in essence, that the change to the weighting method, the revision of the allocation key in particular, had, in practice, only a marginal impact on microeconomic indicators, particularly because of the weight of large enterprises. Therefore, the failure to correct the weighted data had no impact on the overall injury analysis.
232    However, first of all, it should be noted that the Commission did not disclose, either in the contested regulations or before the Court, the revised microeconomic indicators other than profitability. Thus, at the hearing, it merely asserted, without proving that this was the case, that, similarly to overall profitability and the profitability of tier 3, the other microeconomic indicators had not been affected by the revision of the weighting method.
233    Next, it should be borne in mind that the revision of the weighting results from both the change to the allocation key and the decision not to apply the second weighting adjustment.
234    Lastly, it should be noted that the inconsistency vitiating the calculation of microeconomic indicators other than profitability is not the only error affecting the injury analysis. It is in addition to another error relating to the calculation of the price undercutting of the product concerned, which is already, in itself, capable of calling into question the lawfulness of the contested regulations (see paragraph 201 above).
235    Accordingly, the first complaint of the second part of the first pleas and the third part of those pleas, taken together, must be upheld.
(b)    The breach of the rights of the defence
236    It is settled case-law that respect for the rights of the defence is of crucial importance in anti-dumping and anti-subsidy investigations. Thus, the undertakings concerned and their representative associations must have been placed in a position during the administrative procedure in which they could 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 or subsidies and the resulting injury (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraphs 76 and 77 and the case-law cited).
237    The obligation to provide information which is incumbent on the EU institutions in anti-dumping and anti-subsidy matters must, however, where appropriate, be reconciled with the obligation to respect confidential information (judgments of 20 March 1985, Timex v Council and Commission, 264/82, EU:C:1985:119, paragraph 24, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142).
238    Those principles are given effect in the basic anti-dumping regulation and in the basic anti-subsidy regulation, which provide for a system of procedural guarantees pursuing two objectives, namely, on the one hand, to allow the interested parties effectively to defend their interests and, on the other hand, to preserve the confidentiality of the information collected in the course of the anti-dumping or anti-subsidy investigation (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 96).
239    More specifically, the first subparagraph of Article 6(7) of the basic anti-dumping regulation and Article 11(7) of the basic anti-subsidy regulation provide that interested parties, including exporters and their representative associations, may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the European Union or its Member States, which is relevant to the presentation of their cases, which is not confidential and which is used in the investigation.
240    Similarly, Article 20 of the basic anti-dumping regulation and Article 30 of the basic anti-subsidy regulation provide for the communication to the interested parties, including exporters and their representative associations, of the details underlying the facts and essential considerations on which the anti-dumping and anti-subsidy measures may be based.
241    Article 19 of the basic anti-dumping regulation and Article 29 of the basic anti-subsidy regulation, for their part, limit the disclosure of information of a confidential nature or provided on a confidential basis by interested parties and also that of internal documents prepared by the authorities of the European Union or the Member States.
242    Further, it must be borne in mind that an applicant cannot be required to demonstrate that the Commission’s decision would have been different, but simply that such a possibility cannot be ruled out entirely, since that party would have been better able to defend itself had there been no procedural error (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 78 and the case-law cited).
243    However, the existence of an irregularity relating to the rights of the defence can result in the annulment of the contested regulations only where there is a possibility that, due to that irregularity, the administrative procedure would have resulted in a different outcome and thus in fact adversely affecting the rights of the defence of the applicant (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 79 and the case-law cited).
244    In the present case, it is common ground that, during the anti-dumping and anti-subsidy investigations, the applicants asked the Commission on several occasions to provide them with the following data:
–        the gross injury indicators, before application of the weighting adjustments, and the data relating to SMEs, on the one hand, and large enterprises, on the other;
–        injury indicators other than profitability after revision of the weighting;
–        certain information relating to the sources of macroeconomic injury data and the list of SMEs of the Union industry which ceased production;
–        the total exact volume of the sales of SMEs of the Union industry which cooperated in the investigations and information relating to the proportion of SMEs in the Union industry.
245    According to the applicants, the data referred to in paragraph 244 above are not confidential.
246    The Commission does not deny that it did not disclose the data referred to in paragraph 244 above, but maintains that it was not required to disclose them on pain of illegality.
247    The Commission’s explanations relating to the non-disclosure of the data referred to in paragraph 244 above varied in the course of the proceedings before the Court. First of all, in the defence and in the rejoinder, the Commission merely stated, in a general and unsubstantiated manner, that those data were confidential or internal data. Next, in its written reply to the measures of organisation of procedure, it stated that certain information relating to those data had been disclosed and that, as regards the remaining data in question, they either did not exist or were internal or were confidential. Lastly, at the hearing, it further defined and changed its position, in particular as regards the existence and the confidential nature of some of the data in question.
248    In those circumstances, it is necessary to examine whether the various grounds relied on by the Commission were such as to preclude disclosure to the applicants of the data referred to in paragraph 244 above.
249    In the first place, as regards the ground alleging that the data referred to in paragraph 244 above do not exist, the Commission raised that ground, in its written reply to the measures of organisation of procedure, only in relation to injury indicators, other than profitability, after the weighting had been revised. However, at the hearing, it admitted, for the first time, that the data relating to those revised indicators existed. It must therefore be considered that it has completely abandoned that ground for non-disclosure.
250    In the second place, as regards the ground relating to the confidential nature of the data referred to in paragraph 244 above, a distinction must be made according to the type of data.
251    First, as regards (i) the gross injury indicators, before applying the weighting adjustments, and (ii) injury indicators other than profitability, after the weighting had been revised, the Commission admitted, for the first time at the hearing, that, having regard to their aggregated nature, the data relating to those indicators were not confidential.
252    Second, as regards the list of SMEs of the Union industry which ceased production, the Commission took the view, both during the anti-dumping and anti-subsidy investigations and during the written and oral parts of the procedure before the Court, that that list was confidential in so far as it contained the names of the customers of the tread suppliers.
253    In that regard, the applicants argued correctly at the hearing that the communication of the names of the 85 SMEs which had ceased production, as provided by eight different suppliers, did not make it possible to identify individual business relations between a supplier and a customer and that, consequently, it did not involve the disclosure of any data liable to be confidential. In those circumstances, the Commission has not shown that the list of Union industry SMEs which ceased production is confidential.
254    Third, as regards the total exact volume of the sales of SMEs of the Union industry which cooperated in the investigations, the Commission stated during the written part of the procedure that that figure was confidential and that, consequently, it had disclosed only an approximate range. In addition, it stated at the hearing that that figure was likely to reveal the identity of the complainants.
255    In that regard, it is common ground that, during the anti-dumping and anti-subsidy investigations, the Commission did not reveal the exact volume of sales made by SMEs which cooperated in those investigations, but merely stated, in a note to the file, that the share of the sales of those SMEs in the total sales of the cooperating Union producers ranged from 7 to 10%. It also stated, in recital 30 of, and footnote 13 to, the definitive anti-dumping regulation, that it was thereby complying with its obligation to maintain the confidentiality of the identity of certain Union producers.
256    However, the Commission does not explain in specific terms how disclosure of an aggregate figure would be liable to reveal the identity of certain complainants. More specifically, it does not maintain that the number of cooperating SMEs is so small that the communication of that figure would make it possible to identify those SMEs. Moreover, in recital 157 of the provisional anti-dumping regulation, it specified that the sales data of the sampled SMEs represented around 4% of the total Union sales of sampled Union producers, even though the number of sampled SMEs is necessarily lower than or equal to the number of cooperating SMEs. In those circumstances, the Commission has not shown that the exact data relating to the cumulative volume or the share of sales of SMEs of the Union industry which cooperated in the investigations are confidential.
257    Fourth, as regards the other data referred to in paragraph 244 above, the Commission no longer claims, ultimately, that they are confidential. In any event, it has never provided any specific and detailed explanation to establish that those data are confidential.
258    In the third place, as regards the ground relating to the internal nature of the data referred to in paragraph 244 above, the Commission relies on it only with regard to the injury indicators referred to in paragraph 251 above. It stated at the hearing that the data relating to those indicators related to an intermediate calculation step, that they had not been used to determine the injury and that, therefore, they were internal in nature and did not constitute essential facts and considerations.
259    In that regard, it must be observed that the fact that data or calculations are set out in internal documents or concern intermediate steps in the Commission’s calculations is not sufficient to prevent their disclosure, since the disclosure of internal documents and intermediate calculations is provided for by the basic anti-dumping regulation where those documents contain essential facts and considerations (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 198).
260    In those circumstances, it is necessary to examine whether the injury indicators referred to in paragraph 251 above and the other data referred to in paragraph 244 above constitute essential facts and considerations.
261    In that regard, first, it should be noted that the gross injury indicators, before applying weighting adjustments, constitute an important intermediate step in the Commission’s calculations relating to the injury indicators.
262    Second, the injury indicators, other than profitability, following revision of the weighting are particularly relevant data which the Commission should have taken into consideration before adopting the contested regulations (see paragraphs 223 to 229 above).
263    Third, the other data referred to in paragraph 244 above are linked to findings of fact in the contested regulations, such as the proportion and weight of SMEs in the Union industry, the number of those SMEs having ceased production or the macroeconomic injury data.
264    Thus, it is apparent that the various data referred to in paragraph 244 above all relate to how the Commission calculated the allocation key and applied the two weighting adjustments when calculating the injury indicators.
265    Therefore, the data referred to in paragraph 244 above, the injury indicators referred to in paragraph 251 above in particular, must be classified as essential facts and considerations on which the contested regulations are or should have been based.
266    It follows that the Commission breached the applicants’ rights of the defence by not disclosing to them any of the data referred to in paragraph 244 above.
267    It is also necessary to determine whether the irregularity committed by the Commission is capable of leading to the annulment of the contested regulations in accordance with the case-law cited in paragraphs 242 and 243 above.
268    In that regard, it must be borne in mind that, according to the Court’s case-law, the fact of having the detailed calculations made by the Commission and the data used for those calculations available to them, is, in general, capable of enabling the interested parties to make observations that are more useful for their defence. They can then verify exactly how the Commission used those data and compare them with their own calculations, which would enable them to identify possible errors made by the Commission which would otherwise be undetectable (judgments of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 208, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 156).
269    In the present case, the Commission does not seriously dispute that, if it had disclosed to the applicants the various data referred to in paragraph 244 above, and the injury indicators referred to in paragraph 251 above in particular, they would have gained a substantial amount of information and would thus have been better able to check the way in which it calculated the injury allocation key and injury indicators, so that the applicants would, as the case may be, have been able to submit more relevant observations than those which they submitted.
270    That finding applies all the more so far as concerns the injury indicators, other than profitability, after revision of the weighting. It cannot be ruled out that those revised injury indicators may be different from those initially calculated and reproduced in the contested regulations (see, to that effect, paragraph 232 above).
271    In those circumstances, it cannot be entirely ruled out that, in the absence of the error committed by the Commission, the parties would have been better able to defend themselves, so that the contested regulations might have been different. Consequently, that error is such as to entail the annulment of those regulations, in so far as they are challenged by admissible claims.
272    Accordingly, the second part of the fifth pleas is well founded and must be upheld.
273    As a result, the complaints summarised in paragraphs 211 to 213 above are capable of supporting the annulment of the definitive anti-dumping and countervailing duties at issue, as already follows from the second complaint of the second part of the third pleas (see paragraph 207 above).
3.      The other pleas and complaints
274    The applicants ask that the Court rule on all pleas in law, even if it were to consider that only one of them is sufficient to lead to the annulment of the contested regulations. They explain that, in the event of annulment based on a single plea in law, the Commission could remedy the illegality found by the Court and impose new definitive anti-dumping and countervailing duties, which would force them to bring fresh actions for annulment in order for the Court to rule on the other pleas not examined in the annulment judgment. Therefore, in accordance with the principle of effective judicial protection, it would be appropriate for the Court to rule on all pleas in law.
275    In this respect, it should be noted that the principle of effective judicial protection in no way implies that the Court should examine all the pleas in law in the action, even if it upholds one of them. In accordance with the principle that the pleas considered should be kept to a minimum, which applies to proceedings concerning the legality of measures, when the EU Courts decide to uphold a plea and to annul the contested measure, they are not required to examine the other pleas (see judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 135 (not published) and the case-law cited; Opinion of Advocate General Léger in Acerinox v Commission, C‑57/02 P, EU:C:2004:666, points 91 and 92).
276    Nevertheless, it is for the EU Courts to assess, in the exercise of their absolute discretion, whether, in the interests of the sound administration of justice, all the pleas in law and complaints in the action should be examined (see, to that effect, judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 136 (not published), and Opinion of Advocate General Léger in Acerinox v Commission, C‑57/02 P, EU:C:2004:666, point 93).
277    In the present case, the Court considers that neither the principle of the sound administration of justice nor the principle of effective judicial protection means that it must examine the other pleas and complaints raised by the applicants.
E.      Conclusion
278    It follows from all the foregoing that:
–        first, the definitive anti-dumping regulation must be annulled, in so far as it imposes definitive anti-dumping duties on imports of products manufactured by the exporting producers listed in paragraph 28 above, with the exception of Zhongce Rubber Group;
–        second, the anti-subsidy regulation must be annulled in so far as it imposes definitive countervailing duties on imports of products manufactured by the exporting producers listed in paragraph 28 above;
–        third, the remainder of the heads of claim in the actions must be rejected.
IV.    Costs
279    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 134(2) of those rules, where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared.
280    In each of the two cases, the Commission and the intervener have been largely unsuccessful and the applicants have applied for costs. In those circumstances, the Commission must be ordered to bear its own costs and to pay those incurred by the applicants, with the exception of those relating to the interventions, and the intervener must be ordered to bear its own costs and to pay those incurred by the applicants as a result of the interventions.
On those grounds,
THE GENERAL COURT (Tenth Chamber, Extended Composition)
hereby:
1.      Joins Cases T‑30/19 and T‑72/19 for the purposes of judgment;
2.      Annuls Commission Implementing Regulation (EU) 2018/1579 of 18 October 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation (EU) 2018/163, in so far as it imposes definitive anti-dumping duties on imports of products manufactured by the following exporting producers:
–        Chaoyang Long March Tyre Co. Ltd;
–        Triangle Tyre Co. Ltd;
–        Shandong Wanda Boto Tyre Co. Ltd;
–        Qingdao Doublestar Tire Industrial Co. Ltd;
–        Ningxia Shenzhou Tire Co. Ltd;
–        Guizhou Tyre Co. Ltd;
–        Aeolus Tyre Co. Ltd;
–        Shandong Huasheng Rubber Co. Ltd;
–        Chongqing Hankook Tire Co. Ltd;
–        Prinx Chengshan (Shandong) Tire Co. Ltd;
–        Jiangsu Hankook Tire Co. Ltd;
–        Shandong Linglong Tire Co. Ltd;
–        Shandong Jinyu Tire Co., Ltd;
–        Sailun Jinyu Group Co. Ltd;
–        Shandong Kaixuan Rubber Co. Ltd;
–        Weifang Yuelong Rubber Co. Ltd;
–        Weifang Shunfuchang Rubber And Plastic Products Co. Ltd;
–        Shandong Hengyu Science & Technology Co. Ltd;
–        Jiangsu General Science Technology Co. Ltd;
–        Double Coin Group (Jiang Su) Tyre Co. Ltd;
–        Hefei Wanli Tire Co. Ltd;
–        Giti Tire (Anhui) Company Ltd;
–        Giti Tire (Fujian) Company Ltd;
–        Giti Tire (Hualin) Company Ltd;
–        Giti Tire (Yinchuan) Company Ltd;
–        Qingdao GRT Rubber Co. Ltd;
3.      Annuls Commission Implementing Regulation (EU) 2018/1690 of 9 November 2018 imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending Implementing Regulation 2018/1579, in so far as it imposes definitive countervailing duties on imports of products manufactured by the exporting producers listed in paragraph 2 of the operative part of the present judgment, on the one hand, and by Zhongce Rubber Group Co., Ltd, on the other;
4.      Rejects the remainder of the heads of claim in the actions;
5.      Orders the European Commission to bear its own costs and to pay those incurred by China Rubber Industry Association (CRIA) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC), with the exception of those relating to the interventions;
6.      Orders Marangoni SpA to bear its own costs and to pay those incurred by CRIA and CCCMC as a result of the interventions.
Kornezov
Buttigieg
Kowalik-Bańczyk
Hesse
Petrlík
Delivered in open court in Luxembourg on 4 May 2022.
E. Coulon
H. Kanninen
Registrar
President
Table of contents
I. Background to the dispute
II. Procedure and forms of order sought
III. Law
A. The joinder
B. Subject matter of the actions
C. Admissibility
1. Admissibility of the actions
(a) Whether the applications are precise
(1) Triangle Tyre
(2) Hefei Wanli Tire
(3) The Giti Group
(b) The applicants’ standing to bring proceedings
(1) Triangle Tyre
(2) Weifang Yuelong Rubber and Hefei Wanli Tire
(3) The definitive countervailing duties in respect of Zhongce Rubber Group
(c) The applicants’ interest in bringing proceedings regarding the definitive anti-dumping duties in respect of Zhongce Rubber Group
2. The admissibility of the pleas alleging breach of procedural rights
D. Substance of the pleas
1. The second complaint of the second part of the third pleas, alleging failure to carry out a fair price comparison in the calculation of the price undercutting
(a) Preliminary observations
(b) The method used by the Commission for the calculation of the price undercutting
(c) The existence of an infringement of the obligation to carry out a fair price comparison
(d) The impact of the infringement of the obligation to carry out a fair price comparison
(1) The impact on the level of price undercutting and on the analysis of the injury and of the causal link
(i) The level of price undercutting
(ii) The analysis of the injury and of the causal link
(2) The impact on the injury margins and on the amount of the definitive anti-dumping and countervailing duties at issue
(i) The injury margins
(ii) The amount of the definitive anti-dumping and countervailing duties at issue
(e) The principle and scope of the annulment as a result of the infringement of the obligation to carry out a fair price comparison
2. Certain complaints alleging inconsistencies and breach of the rights of the defence regarding injury indicators and the weighting of data from the sample of Union producers
(a) The use of a fixed allocation key and the failure to correct the weighted data
(b) The breach of the rights of the defence
3. The other pleas and complaints
E. Conclusion
IV. Costs
*      Language of the case: English.
1      This judgment is published in extract form.