JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
14 December 2017(*)
(Dumping — Imports of certain prepared or preserved sweetcorn in kernels originating in Thailand — Partial interim review — Alteration of the definitive anti-dumping duty — Trade association representing EU producers — Breach of procedural rights — Rights of defence)
In Case T‑460/14,
Association européenne des transformateurs de maïs doux (AETMD), established in Paris (France), represented initially by A. Willems, S. De Knop and J. Charles, and subsequently by Willems, De Knop and C. Zimmerman, lawyers,
applicant,
v
Council of the European Union, represented by S. Boelaert, acting as Agent, and by S. Gubel, lawyer, and B. O’Connor, Solicitor,
defendant,
supported by
European Commission, represented by J.-F. Brakeland, A. Stobiecka-Kuik and A. Demeneix, acting as Agents,
and by
River Kwai International Food Industry Co. Ltd_established in Kaeng Sian (Thailand), represented by J. Cornelis and F. Graafsma, lawyers,
interveners,
APPLICATION pursuant to Article 263 TFEU seeking the annulment of Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2014 L 91, p. 1).
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva and J. Passer (Rapporteur), Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 29 June 2017,
gives the following
Judgment
Background to the dispute
1        On 28 March 2006 the Commission of the European Communities initiated an anti-dumping investigation (‘the original investigation’) with respect to imports of certain prepared or preserved sweet corn in kernels originating in Thailand. The complaint that triggered the investigation was lodged by the applicant, the Association Européenne des Transformateurs de Maïs Doux (‘AETMD’).
2        By Council Regulation (EC) No 682/2007 of 18 June 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand (OJ 2007 L 159, p. 14), the Council of the European Union imposed a definitive anti-dumping duty on prepared or preserved sweetcorn currently falling within CN codes ex 2001 90 30 and ex 2005 80 00 originating in Thailand. In the context of those initial measures, the anti-dumping duty was between 3.1% and 12.9%.
3        By Council Regulation (EC) No 954/2008 of 25 September 2008 amending Regulation No 682/2007 (OJ 2008 L 260, p. 1), the Council amended the measures in force with regard to one exporter and, consequently, the rate applicable to ‘all other companies’. That rate was between 3.1% and 14.3%.
4        On 19 March 2012, the applicant lodged a request for an initiation of an expiry review of the anti-dumping measures.
5        On 18 June 2012, second intervener, River Kwai International Food Industry Co. Ltd (‘RK’), a Thai exporter of the goods concerned, lodged a request for a partial interim review, in accordance with Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (‘the basic regulation’) (replaced by Council Regulation (EC) No 2016/1036 of 8 June 2016 on protection against dumped imports from countries not members of the European Community (OJ 2016 L 176, p. 21), and, more specifically, in accordance with Article 11(3) of Regulation No 1225/2009 (now Article 11(3) of Regulation No 2016/1036). That request for an interim review concerned only dumping.
6        On 19 June 2012, the Commission initiated an expiry review of the anti-dumping measures, pursuant to Article 11(2) of the basic regulation (now Article 11(2) of Regulation 2016/1036).
7        On 14 February 2013, the Commission initiated an interim review of RK’s dumping margin, in application of Article 11(3) of the basic regulation.
8        By letter of 25 March 2013, and by email of 23 October 2013, the applicant lodged observations.
9        RK sent the Commission its reply to the anti-dumping questionnaire referred to in point 5.1 of the notice of initiation of the interim review.
10      By Council Implementing Regulation (EU) No 875/2013 of 2 September 2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an expiry review pursuant to Article 11(2) of the basic regulation (OJ 2013 L 244, p. 1), the Council imposed anti-dumping measures for an additional period of five years, including the duty of 12.8% imposed on RK.
11      On 27 November 2013, the Commission sent the applicant, pursuant to Article 20(2) of the basic regulation (now Article 20(2) of Regulation 2016/1036), the final disclosure concerning the essential facts and considerations on the basis of which it proposed to recommend that the definitive anti-dumping duty imposed on RK should be reduced to 3.6%.
12      On 5 December 2013, the applicant, at its request, was heard by the Commission.
13      On 18 December 2013, the hearing officer sent the applicant an email.
14      By letter of 19 December 2013, the applicant lodged its observations on the final disclosure.
15      By letter of 10 January 2014, RK responded to the applicant’s observations.
16      By letter of 17 January 2014, the applicant lodged observations in response to RK’s letter of 10 January 2014.
17      By letter of 18 February 2014, the hearing officer replied to a letter of 7 February 2014 from the applicant.
18      On 24 March 2014, the Council adopted Council Implementing Regulation (EU) No 307/2014 amending Implementing Regulation (EU) No 875/2013 following an interim review pursuant to Article 11(3) of the basic regulation (OJ 2014 L 91, p. 1; ‘the contested regulation’). By the contested regulation, the Council reduced the anti-dumping duty applicable to RK from 12.8% to 3.6%.
Procedure and forms of order sought
19      By document lodged at the Court Registry on 18 June 2014, the applicant brought the present action.
20      By document lodged at the Court Registry on 27 August 2014, the Commission applied for leave to intervene in support of the form of order sought by the Council.
21      By order of 9 October 2014, the President of the Third Chamber of the General Court granted leave to intervene. The Commission lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed periods.
22      By document lodged at the Court Registry on 20 October 2014, RK sought leave to intervene in support of the form of order sought by the Council.
23      By order of 8 January 2015, the President of the Third Chamber of the General Court granted leave to intervene. RK lodged its statement in intervention and the main parties lodged their observations on that statement within the period prescribed.
24      As the composition of the chamber had been altered, the present case was assigned to the Eighth Chamber of the General Court, in which a new Judge-Rapporteur was designated.
25      By letter of the Court Registry of 22 November 2016, the Court asked the applicant, by way of measures of organisation of procedure, to produce a document. The applicant replied to that request by letter of 24 November 2016.
26      The applicant claims that the General Court should:
–        declare the present application admissible;
–        annul the contested regulation;
–        order the Council to rectify Regulation No 875/2013 accordingly;
–        order the Council to pay the costs;
–        order RK to bear its own costs.
27      In the defence, the Council, supported by the Commission and RK, contends that the Court should:
–        declare the application inadmissible or, in the alternative, unfounded;
–        order the applicant to pay the costs.
28      At the hearing, the Council withdrew its assessment of the inadmissibility of the action as regards the fourth plea for annulment alleging breaches of Article 19(2) of the basic regulation (now Article 19(2) of Regulation No 2016/1036), Article 20(2) of the same regulation and the rights of defence. Specifically asked by the General Court on that point, it confirmed that it now regarded the action as admissible on the basis of the fourth plea for annulment only. The Commission concurred with that assessment. The Court took formal note of that point.
Law
29      The applicant puts forward four pleas in law in support of its application for annulment. The first plea alleges infringement of Article 2(3) and (4) of the basic regulation (now Article 2(3) and (4) of Regulation 2016/1036). The second plea alleges infringement of Article 2(10) of the basic regulation (now Article 2(10) of Regulation No 2016/1036). The third plea alleges infringement of Article 11(3) of the basic regulation. The fourth plea alleges infringement of Article 19(2) and Article 20(2) of the basic regulation, and of the rights of defence
30      It is appropriate to start by examining the fourth plea for annulment.
31      In the context of that plea, the applicant claims that, by failing to provide it with a meaningful summary of the evidence collected during the investigation or the considerations on the basis of which they proposed to amend RK’s anti-dumping margin, the Council and the Commission (‘the institutions’) infringed Article 19(2) and Article 20(2) of the basic regulation, and also its rights of defence.
32      Information in the non-confidential file was inconsistent, in particular as regards the table of RK’s sales, or was omitted without good reason. The applicant was unable effectively to defend its rights on the question of the connection between RK’s restructuring and the dumping margin.
33      The applicant’s repeated requests that the institutions should explain how RK arrived at an alleged reduction in its indirect production costs and how the costs were reallocated within RK’s group of related companies following the restructuring were never properly addressed. In the defence, the Council fails to explain how RK’s production costs decreased, since its raw materials, utilities and products were still obtained from the same suppliers and manufactured in the same factory using the same machinery, the same personnel and the same management in the same building. Consequently, the alleged decrease in RK’s production costs could be attributable only to a reallocation of costs between RK and AgriFresh. Since the institutions failed to examine the allocation of RK’s costs, in spite of several requests from that applicant that they should do so, they failed to provide the applicant with the necessary information to assert its rights of defence.
34      RK’s assertion that the applicant received meaningful summaries of all the evidence collected throughout the investigation and ‘ample explanations’ of the basis on which the institutions proposed to amend RK’s anti-dumping duty is not, according to the applicant, borne out by the facts. In the first place, the applicant’s repeated requests that the institutions should explain how RK arrived at an alleged reduction in its indirect production costs and how the costs were reallocated between RK and AgriFresh were never properly addressed. In the second place, it was only in the context of the present action for annulment that the applicant obtained certain information concerning substantive issues raised throughout the investigation. For example, although the applicant consistently expressed concerns about whether the volume of RK’s sales to the EU was representative, RK stated for the first time, and still without producing the slightest supporting evidence, that the asymmetry between its volumes of sales on the domestic market and of sales to the EU was the result of a higher number of customers on the domestic market than on the EU market and the fact that, on a product control number (PCN) basis, its volume of sales to the EU corresponds to that of its sales on the domestic market.
35      The institutions have a wide power of appraisal in anti-dumping proceedings. That is why, according to the applicant, compliance with the safeguards provided by the EU legal order in administrative procedures is of even greater fundamental importance. In the present case, it submits, those safeguards were not provided.
36      The Council contends that the applicant’s presentation of the facts is misleading. The non-confidential version of RK’s request for an interim review clearly sets out the reasons showing how the circumstances had changed by comparison with the original investigation. RK changed its commercial activities to focus on canned sweetcorn, and giving up its fresh fruit and vegetable business. That is what is stated in the non-confidential request for an interim review and in RK’s letter of 10 January 2014.
37      The Commission found that, as indicated in the request for an interim review, RK had changed its product range by comparison with the original investigation period. According to the Council, the applicant misses the point when it refers to cost allocations within the group.
38      The Council also observes that, owing to those changes in its product range, RK is able to produce more sweetcorn than during the original investigation. That is clear from the fact that the company no longer needs to maintain capacity for the production of other products. In that sense, the production process, dedicated only to sweetcorn, has been optimised and economies have been achieved.
39      The applicant wrongly claims, according to the Council, that the EU institutions, in recital 45 of the contested regulation, reiterated RK’s reasoning that the reduction of the cost of production is the result of better cost allocations.
40      It is an established fact, according to the Council, that the EU institutions found that RK’s production costs decreased between the original investigation period and the review investigation period (‘RIP’), whatever reason RK gives for that decrease. In other words, whether RK could or could not provide reasons concerning the manner in which that decrease was achieved, the Commission was in fact in a position to find that there had been a decrease.
41      The assertion that it was impossible to make meaningful comments on the Commission’s analysis is unfounded, according to the Council. The institutions used data from the original investigation file, to which the applicant had access. In addition, the applicant never requested data from the original investigation during the partial interim review. The institutions could therefore reasonably expect that the applicant was in possession of the relevant data from the original investigation.
42      The Council submits that the applicant’s reproduction of RK’s table concerning its sales in the EU is incorrect in so far as RK actually reported a sales volume of 1% during the RIP. That being said, it is difficult to understand how the fact that the rest of the data provided by RK equals ‘zero’ prevented the applicant from defending its rights and from making meaningful comments. Zero is a figure and clearly provides some information.
43      As regards information alleged to have been omitted without good reason, the applicant does not indicate or examine what kind of information or data marked ‘[LIMITED]’ ought to have been made public by RK. That vague allegation, which was not substantiated and was never advanced during the investigation, should be rejected by the General Court.
44      The applicant also appears to confuse the confidential and public annual reports. The annual report mentioned in the non-confidential request for an interim review and marked [LIMITED] concerned RK and was not made available to the public. It could not therefore have been communicated to the interested parties during the investigation.
45      Finally, the Council is of the view that the applicant was properly informed of the considerations on the basis which RK’s dumping margin was to be amended. On 27 November 2013, the Commission sent the applicants the final disclosure document. The institutions therefore complied with Article 20(2) of the basic regulation. The applicant has not shown how that provision was infringed.
46      The applicant asserts, moreover, for the first time in the reply that its rights of defence were not respected. According to the Council, that assertion is unsubstantiated and unfounded. The institutions complied with their procedural obligations. Throughout the investigation, the applicant was in a position to submit meaningful comments on the issues and data relevant to the interim review.
47      RK contests the applicant’s position. Article 19(2) of the basic regulation provides that ‘interested parties providing confidential information shall be required to furnish non-confidential summaries thereof’. According to RK, the applicant does not claim — nor could it do so — that no non-confidential summary was provided. RK submits that Article 19(2) of the basic regulation does not require that the understanding based on the summaries should be ‘perfect’ or complete’, but that the summaries should permit a ‘reasonable’ understanding. The summaries provided by RK satisfied that requirement.
48      The assertion that the information in the non-confidential file did not permit the applicant to put forward meaningful arguments is incorrect, according to RK. The information relating to sales volumes allowed the applicant to understand the substance of the confidential information. That is confirmed by the fact that the applicant based its second plea and part of its third plea on what it claimed to be the unrepresentative nature of the volumes of sales to the EU. The applicant never said that it was concerned that there was a lack of understandable summaries during the administrative procedure.
49      As regards the applicant’s assertion that it could not properly defend its rights in respect of ‘the issue of how [RK’s] restructuring had an impact on the dumping margin …’, RK is unable to see what the applicant’s complaint is. If the argument relates to an alleged lack of a meaningful summary within the meaning of Article 19(2) of the basic regulation, it gives no indication of what information was not properly summarised. The mere fact that, in the application, the applicant quoted RK’s explanation of how production costs had decreased contradicts its claim and shows that a meaningful summary had been produced. If the argument refers to Article 20(2) of the basic regulation, the institutions provided ample explanation of why RK’s restructuring had an impact on the dumping margin.
50      Next, the issue of the allocation of costs between RK and its associated companies never arose, since only RK is involved in the production of the goods concerned.
51      Finally, as regards the alleged infringement of Article 20(2) of the basic regulation, RK submits that the applicant received the final disclosure. The fact that the Commission’s services did not accept the applicant’s arguments in response to the proposed change in the dumping margin is not tantamount to non-receipt of the disclosure by the applicant.
52      Furthermore, in so far as the applicant’s argument concerning Article 20(2) of the basic regulation relates to the non-inclusion of confidential information in the final disclosure, the applicant fails to mention that Article 20(4) of the basic regulation (now Article 20(4) of Regulation 2016/1036) provides that ‘final disclosure … shall be made, due regard being had to the protection of confidential information …’.
53      Article 19(2) of the basic regulation states:
‘Interested parties providing confidential information shall be required to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarisation is not possible must be provided.’
54      Article 20(2) of the basic regulation states:
‘The [complainants, importers and exporters and their representative associations, and representatives of the exporting country] may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.’
55      It is clear from the case-law that the requirements stemming from compliance with defence rights must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular the undertakings affected must be placed in such a position, during the administrative procedure, that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged (see the judgment of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317, paragraphs 288 and 289 and the case-law cited; judgments of 13 September 2010, Whirlpool Europe v Council, T‑314/06, EU:T:2010:390, paragraph 74, and of 25 October 2011, Transnational Company‘Kazchrome’ and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 110).
56      The applicant submits that most of RK’s data that appears in the non-confidential file was inconsistently reported or did not place it in a position to be able to exercise its rights. The applicant cites the non-confidential summary of RK’s reply to the anti-dumping questionnaire, which reported sales of the goods concerned in the EU as equal to zero between 2010 and the end of the RIP.
57      As regards the reference to the fact that the reply to the anti-dumping questionnaire contained a numerical error, it must be observed that that fact did not mislead the applicant. It is clear from the administrative procedural documents produced by the applicant in the present appeal that it did not deduce from this zero figure that there were no exports by RK to the EU in the RIP, but that it knew that exports by RK to the EU had taken place, albeit in limited quantities during that period.
58      Thus, already in the observations of 25 March 2013, the applicant wrote that, in 2012, RK had exported less than 100 tonnes of the product concerned to the EU. After RK’s reply to the anti-dumping questionnaire, the applicant did not react to the fact that it indicated a zero figure for the years 2010 to 2012, having understood that the figure given in the same table for the RIP (from July 2011 to December 2012) was not zero, but one. At the hearing held on 5 December 2013, and in its observations of 19 December 2013, the applicant referred to RK’s exports to the EU not as nothing, but as small (‘tiny exports’), namely of less than 100 tonnes between April 2011 and March 2012. Finally, the applicant itself resorted to the percentage of 0%, due to the effect of rounding, in order to measure the share of exports to the EU in RK’s sales in the period 2010 to 2012. Therefore the applicant cannot rely on the reference to the zero figure as being an inconsistency that prevented it from exercising its rights of defence in the administrative procedure.
59      In addition, the applicant submits that key information was omitted from the documents produced and was simply replaced, without justification, by the word ‘[LIMITED]’.
60      It must be held, however, that that argument is, in itself, vague and general and must be rejected. In the rejoinder, the applicant does not reply to the Council’s objection in that regard.
61      As for the more specific reference to public annual reports that were allegedly kept confidential as regards the applicant, the latter refers to the application for an interim review of 18 June 2012.
62      A reading of that application for review reveals that the annexes to that application were, in particular, made up of the 2011 financial accounts for of RK or extracts of annual reports of 2005 and of 2010 of the company Agripure, of which RK is a subsidiary. It was stated that those annexes were confidential.
63      In the defence, the Council submits that the applicant appears to mix up confidential annual reports and public annual reports. The Council adds that the report mentioned in the request for an interim review and marked ‘[LIMITED]’ concerned RK and was not made available to the public. RK states that its annual reports were not made available to the public and that, in any event, the applicant was never concerned about that point during the administrative procedure.
64      While it is in fact possible that RK’s financial accounts are not public documents, it is possible to doubt that as regards the annual reports of its mother company, Agripure, which is quoted on the Thai Stock Exchange (recital 45 of the contested regulation).
65      However, as RK notes, the applicant is not concerned about that question in its observations made after the request for an interim review.
66      It is clear from the General Court’s case-law that it is for the interested parties in an anti-dumping investigation procedure to place the institutions in a position to assess the difficulties which the absence of an element in the information put at their disposal could cause them. A fortiori, such an interested party is not entitled to complain before the Court that information was not put at its disposal if, in the course of the investigation procedure that led to the contested anti-dumping regulation, it had not made any request to the institutions in relation to that particular information (see, to that effect, the judgments of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 47 and the case-law cited, and of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, not published, EU:T:2012:531, paragraphs 134 and 135).
67      Since the applicant had not made any request to the institutions in relation to that particular information, the applicant’s complaint must be rejected.
68      The applicant lastly submits, in the application, that the question of how RK’s restructuring in fact had an impact on the dumping margin is a striking example of its inability to properly defend its rights. The applicant made repeated requests that the institutions should explain how RK arrived at an alleged reduction in its indirect production costs and how the costs were reallocated within RK’s group of related companies following the restructuring. However, according to the applicant, the Commission never gave a satisfactory reply to those requests. The hearing officer first confirmed that it had not been possible to check the allocation of costs. According to the applicant, RK also did not respond to that question, and then gave explanations connected with the change of activity without answering the applicant’s questions. The applicant therefore raised the question once again with the Commission. The hearing officer simply stated that the question had been investigated further without providing the applicant with any other information. As regards the contested regulation, according to the applicant, he did not address the applicant’s concerns. According to the applicant, the alleged decrease in costs could be attributable only to a reallocation of costs between RK and AgriFresh. Since the institutions failed to examine the allocation of RK’s costs, in spite of several requests from that applicant that they should do so, they failed to provide the applicant with the necessary information to enable it to rely on its rights of defence.
69      The Council, supported by RK, disputes the applicant’s arguments.
70      It must be observed that, following the initiation by the Commission on 14 February 2013 of an interim review of RK’s dumping margin, the applicant stated, in its observations of 25 March 2013, that, to its knowledge, the two activities — fresh fruit and vegetables, on the one hand, and prepared or preserved sweetcorn, on the other hand, — in theory separated since RK’s restructuring, were carried out in the same building in Kanchanaburi (Thailand), that the separation of RK and AgriFresh was therefore an easily reversible separation on paper and that, ‘moreover, costs apportionment between the two companies shall be examined with caution as figures can easily be played with when companies are in the same building.’
71      After those observations and in the context of the review investigation, the Commission carried out a verification visit in RK’s premises, in Bangkok (Thailand) and in Kanchanaburi.
72      Although, in its final disclosure of 27 November 2013, the Commission stated that the fact that RK no longer marketed certain products had the effect of reducing its production costs (paragraph 41 of the final disclosure document), it did not, however, refer to the applicant’s concern regarding the allocation of costs. The Commission merely raised — and rejected — the applicant’s argument regarding the easily reversible nature of RK’s reorganisation (paragraphs 42 to 44 of the final disclosure document). The latter question, which is relevant for the assessment of the lasting nature of the change of circumstances, is however different from that of the allocation of costs, which puts at issue the calculation of the normal value and therefore the dumping margin.
73      On 5 December 2013 the applicant was heard, at its request, by the Commission.
74      According to the minutes of that hearing, the applicant considered, as regards the costs structure, that the transfer of certain production activities to a subsidiary made it possible to play with the allocation of costs. The activities could still be carried out in the same place and with the same employees. The applicant stated that the costs structure was a key point and requested that the hearing officer examine the confidential file in order to verify the cost allocation.
75      The minutes of the hearing do not mention any reaction or response by the Commission to that point. Only a comment by the hearing officer indicates that he would examine the confidential file in order to see how the question of cost allocation was addressed.
76      By email of 18 December 2013, the hearing officer wrote to the applicant as follows:
‘I had a look at the manufacturing costs of [RK] in the confidential file in order to verify the cost allocation. While the raw material costs did not decrease, I can confirm that the other costs show a significant decrease in the [investigation period] of the interim review compared with the original investigation. However, it was not possible to check the allocation of costs within the group since only the [RK] data were examined. As you can see from the email sent today by the investigating team to [RK] the allocation issue will be investigated further. The outcome will be addressed in the final proposal.’
77      By letter of 19 December 2013, and then in its observations of 17 January 2014 replying to RK’s observations of 10 January 2014, the applicant maintained its concerns regarding cost allocation and its doubts as to the reality of the separation of the activities of RK and AgriFresh.
78      By letter of 18 February 2014, the hearing officer, replying to a further question by the applicant of 7 February 2014 about cost allocation, stated that that matter had been investigated further and the issues raised by the applicant would be addressed in the final proposal for a Commission regulation to the Council, therefore, in fact, from the applicant’s viewpoint, in the contested regulation.
79      It follows from the foregoing considerations that the possibility of an incorrect allocation of costs between RK and AgriFresh, raised by the applicant since 25 March 2013 and which constituted — besides a rationalisation of RK’s activity — one of the possible causes of the lowering of the production costs alleged by RK in support of its request for an interim review, had not been the object of an investigation or even a reference in the final disclosure, and had not been clarified for the benefit of the applicant following the administrative procedure, before the adoption of the contested regulation.
80      In so doing, the applicant, which had however raised that relevant question, had not received, in the administrative procedure, disclosure that enabled it effectively to make known its point of view in that procedure.
81      Accordingly, and having regard to the case-law according to which the incomplete nature of the final disclosure renders a contested regulation unlawful if, due to the incomplete nature of the disclosure, the interested parties are unable properly to defend their interests in the administrative procedure (see, to that effect, the judgments of 19 November 1998, Champion Stationery and Others v Council, T‑147/97, EU:T:1998:266, paragraphs 55 and 73 to 84, and of 15 December 1999, Petrotub and Republica v Council, T‑33/98 and T‑34/98, EU:T:1999:330, paragraph 206), it must be held that there was an infringement of the procedural rights of the applicant.
82      In its statement in intervention, and at the hearing, RK stated that the applicant did not fully understand the activities of AgriFresh and RK and that there had never been an issue of allocation of costs. In the rejoinder, the Council suggested that the allocation of costs only concerned a low value leasing agreement.
83      It must be held that those statements, submitted before the Court, do not affect the finding of an infringement of the applicant’s procedural rights in the administrative procedure (see, to that effect, and by analogy, the judgments of 12 November 2013, North Drilling v Council, T‑552/12, not published, EU:T:2013:590, paragraph 26 and the case-law cited, and of 12 December 2013, Nabipour and Others v Council, T‑58/12, not published, EU:T:2013:640, paragraphs 36 to 39 and the case-law cited).
84      Finally, and incidentally, it must be observed that the contested regulation also did not address the applicant’s concern. The contested regulation, where it stated that ‘the manufacturing costs per unit have changed to a significant degree [and that change] goes beyond a simple reallocation of costs and is due to a real decrease in indirect costs of production’ (recital 47 of the contested regulation), did not adjudicate on the existence or non-existence of a costs allocation and, a fortiori, on the exact amount of such an allocation.
85      Since the present plea in law is well founded, it is necessary to annul the contested regulation without needing to examine the other pleas.
86      As regards the applicant’s request that the General Court order the Council to rectify Council Implementing Regulation No 875/2013, it must be recalled that, under the first paragraph of Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment. Those provisions provide for the sharing of powers between the judicial authority and the administrative authority, according to which it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision (judgment of 8 October 1992, Meskens v Parliament, T‑84/91, EU:T:1992:103, paragraph 73, see also, to that effect, order of 13 November 1963, Erba and Reynier v Commission, 98/63 R and 99/63 R, EU:C:1963:46, p. 555). It is not for the EU courts to make findings of principle or issue directions to the administration (judgments of 16 December 2004, De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraph 136, and of 16 September 2013, De Nicola v EIB, T‑264/11 P, EU:T:2013:461, paragraph 63). It follows that the applicant’s request must be rejected.
Costs
87      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the applicant, in accordance with the form of order sought by the applicant.
88      In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission shall bear its own costs.
89      Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) to bear its own costs. RK shall bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Annuls Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Regulation (EC) No 1225/2009;
2.      Dismisses the action as to the remainder;
3.      Orders the Council of the European Union to bear its own costs and the costs incurred by the Association européenne des transformateurs de maïs doux (AETMD);
4.      Orders the European Commission and River Kwai International Food Industry Co. Ltd to bear their own costs.
Collins
Kancheva
Passer
Delivered in open court in Luxembourg on 14 December 2017.
E. Coulon
G. Berardis
Registrar
President
* Language of the case: English.