Case T-190/08

Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF)

v

Council of the European Union

(Dumping – Imports of ferro-silicon originating in the former Yugoslav Republic of Macedonia, China, Egypt, Kazakhstan and Russia – Calculation of the export price – Profit margin – Price undertaking – Injury – Causal link – Complaint – Rights of the defence – Duty to state reasons)

Summary of the Judgment

1. Common commercial policy – Protection against dumping – Dumping margin – Calculation of the export price

(Council Regulation No 384/96, Art. 2(9))

2. Common commercial policy – Protection against dumping – Dumping margin – Calculation of the export price

(Council Regulation No 384/96, Art. 2(9))

3. Acts of the institutions – Statement of reasons – Obligation – Scope – Adoption of a regulation imposing an anti-dumping duty

(Art. 253 EC)

4. Common commercial policy – Protection against dumping – Early disclosure of a provisional disclosure document to a producer established in the former Yugoslav Republic of Macedonia

(Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, Art. 36(2); Council Regulation No 384/96)

5. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence

(Council Regulation No 384/96, Art. 20(1))

6. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Right of access to non-confidential documents relating to the proceeding

(Council Regulation No 384/96, Arts 6(7) and 8(4))

7. Common commercial policy – Protection against dumping – Injury – Factors to be taken into consideration

(Council Regulation No 384/96, Arts 3(2), (5) and (6), 4(1) and 5(4))

8. Common commercial policy – Protection against dumping – Injury – Establishing a causal link

(Council Regulation No 384/96, Art. 3(7))

1. It is apparent from Article 2(9) of the basic anti-dumping regulation, Regulation No 384/96, (now Article 2(9) of Regulation No 1225/2009) that the Commission and the Council may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the institutions are required to base their determination of dumping on that price.

(see para. 26)

2. Under the second subparagraph of Article 2(9) of the basic anti-dumping regulation, Regulation No 384/96, (now the second subparagraph of Article 2(9) of Regulation No 1225/2009), where the export price is constructed on the basis of the price to the first independent buyer, or on any reasonable basis, adjustment for all costs incurred between importation and resale, and for profits accruing, is to be made so as to establish a reliable export price, at the Community frontier level. The third subparagraph of Article 2(9) of the basic regulation (now the third subparagraph of Article 2(9) of Regulation No 1225/2009) provides that the items for which adjustment is to be made are to include a reasonable margin for selling, general and administrative costs and profit.

Although Article 2(9) of the basic regulation provides that an adjustment is to be made for a profit margin, that provision does not lay down the method for calculating or determining that margin. It merely states that the profit margin that is to be adjusted must be reasonable.

Such a reasonable profit margin may, where there is an association between producer and importer within the Community, be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer.

Accordingly, Article 2(9) of the basic regulation must be interpreted as giving institutions the choice between using the actual profit margin of the related importer and using a notional profit margin of unrelated importers, the sole obligation being that the margin must be reasonable.

In any event, in the field of measures to protect trade, the institutions enjoy a wide discretion and the powers of review enjoyed by the Courts of the European Union are restricted accordingly. In the application of that principle, no exception falls to be made for the determination of a reasonable profit margin since it necessarily entails complex economic assessments.

(see paras 27-30, 38)

3. The statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the European Union authority which adopted the contested measure, so as to inform the persons concerned of the justification for the measure adopted and thus to enable them to defend their rights and the Courts of the European Union to exercise their powers of review.

In that regard, the Council is not required to reply, in the statement of reasons for the regulation imposing an anti-dumping duty, to all the points of fact and law raised by the persons concerned during the administrative procedure. Moreover, the statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it meets the applicable requirements must be assessed with particular regard to the context of the measure and to all the legal rules governing the matter in question. It is sufficient if the Council sets out the facts and legal considerations which have decisive importance in the context of such a regulation.

(see paras 44-45)

4. Article 36(2) of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, provides that the Stabilisation and Association Council must be informed of the dumping case as soon as the anti-dumping investigation has been initiated and that if no end has been put to the dumping or no other satisfactory solution has been reached within 30 days of the matter being referred to the Stabilisation and Association Council, appropriate measures may be adopted. It is clear from that provision that exchanges between the Commission and exporting producers established in the former Yugoslav Republic of Macedonia must necessarily take place before provisional anti‑dumping measures are imposed; otherwise, no satisfactory solution for the purposes of that provision can be envisaged. For the same reason, it is clear from that provision that the essential considerations and facts on the basis of which the institutions propose to recommend the imposition of provisional anti-dumping measures must be disclosed to the exporting producers; otherwise it might be difficult for those producers to propose a satisfactory solution.

It follows that a producer established in the former Yugoslav Republic of Macedonia, as it was covered by that provision and received the provisional disclosure document relating to the adoption of anti-dumping measures early, cannot be regarded as being in a similar situation to a producer established in another Member State with which such an agreement has not been concluded. Accordingly, the early disclosure of the provisional disclosure document to the first producer, but not to the second, does not constitute a breach of the principle of equal treatment, since the undertakings were in different situations and there is a legislative basis for that difference in treatment.

(see paras 68-69, 72)

5. Article 20(1) of the basic anti-dumping regulation, Regulation No 384/96, (now Article 20(1) of Regulation No 1225/2009) concerns disclosure to the parties. More specifically, it provides that the parties concerned may request disclosure of the essential facts and considerations on the basis of which provisional measures have been imposed and lays down the practical details. Thus, Article 20(1) of the basic regulation provides that requests for disclosure are to be made in writing immediately following the imposition of provisional measures, and the disclosure is to be made in writing as soon as possible thereafter.

There is nothing in the wording of that provision from which to conclude that the provisional disclosure document cannot be disclosed to exporters until after the adoption of provisional anti-dumping measures and upon a written request. Although it may be inferred from Article 20(1) of the basic regulation that the parties concerned cannot request disclosure of the disclosure document before the imposition of provisional measures and must make their request in writing, that provision does not preclude the Commission from taking the initiative of disclosing that document before the imposition of provisional measures and without a request being made to it in writing to that effect.

(see paras 81-82)

6. In essence, Article 6(7) of the basic anti-dumping regulation, Regulation No 384/96, (now Article 6(7) of Regulation No 1225/2009) provides that the parties concerned may apply in writing for leave to inspect the non-confidential file of the proceeding, and that they may make comments on the information on that file and that the Commission must take those comments into consideration. In addition, Article 8(4) of the basic regulation (now Article 8(4) of Regulation No 1225/2009) provides that parties which offer a price undertaking are required to provide a non-confidential version of that undertaking, so that it can be made available to interested parties to the investigation.

There is nothing in the wording of those provisions to conclude that the fact that the price undertaking offered by a producer was not added to the non-confidential file of the proceeding until after the formal publication of the provisional regulation was contrary to Articles 6(7) and 8(4) of the basic regulation. Although those provisions impose both an obligation for parties which have offered a price undertaking to provide a non-confidential version of that undertaking and an obligation for the Commission to provide access to that non-confidential version for interested parties which have made a request for it in writing, they do not mention – and, a fortiori, impose no obligation – as regards the precise time at which a copy of the price undertaking must be added to the non-confidential file of the proceeding.

(see paras 84-85)

7. It is apparent in essence from paragraphs 2, 5 and 6 of Article 3 of the basic anti‑dumping regulation, Regulation No 384/96, (now paragraphs 2, 5 and 6 of Article 3 of Regulation No 1225/2009), read together, that determination of injury involves an objective examination based on positive evidence of the impact of the volume and/or prices of dumped imports on the state of the Community industry and that that examination consists in an evaluation of the relevant economic factors and indices with regard to the state of that industry.

In addition, the term ‘Community industry’, to which paragraphs 2, 5 and 6 of Article 3 of the basic regulation refer, is defined in Article 4(1) of that regulation (now Article 4(1) of Regulation No 1225/2009), which provides that the term ‘Community industry’ is to be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4) of the basic regulation (now Article 5(4) of Regulation No 1225/2009), of the total Community production of those products.

Moreover, Article 5 of the basic regulation concerns the initiation of the anti‑dumping proceeding. Article 5(4) provides that a complaint leading to the initiation of an anti-dumping investigation is to be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total Community production of the product concerned.

Thus, it is apparent from analysis of those provisions that, although the examination by the institutions must lead to the finding that the injury to the Community industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend. Also, the institutions must evaluate the impact of the dumped imports on the state of the Community industry as a whole – that is to say, on Community producers as a whole or at least on the state of Community producers which have supported the initiation of the anti-dumping proceeding whose collective output represents more than 50% of the total Community production of the product concerned – but they are free to choose the method to be used in order to do so. Accordingly, the institutions are just as entitled to prove that injury has been caused to each Community producer as to prove such injury on the basis of the aggregated or weighted data of Community producers as a whole comprising the Community industry within the meaning of Article 4(1) and Article 5(4) of the basic regulation.

(see paras 111-114)

8. In the context of the adoption of anti-dumping measures, the analysis of causation does not necessarily have to be carried out at the level of the Community industry as a whole, with no possibility of taking into consideration injury caused to a single Community producer by a factor other than the dumped imports. In the context of the ‘non-attribution’ analysis envisaged in Article 3(7) of the basic anti‑dumping regulation, Regulation No 384/96, (now Article 3(7) of Regulation No 1225/2009), the institutions must, examine all the other known factors which caused injury to the Community industry at the same time as the dumped imports and, ensure that the injury caused by those other factors is not attributed to the dumped imports. Article 3(7) of the basic regulation does not state that that examination must take account only of injury caused by the other factors to the Community industry as a whole. In the light of the purpose of that provision, which is to ensure that the institutions separate and distinguish the injurious effects of the dumped imports from those of the other factors, it is possible that, in certain circumstances, injury caused individually to a Community producer by a factor other than the dumped imports must be taken into consideration, where it has contributed to the injury observed in relation to the Community industry as a whole.

(see para. 172)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

25 October 2011 ( )

(Dumping – Imports of ferro-silicon originating in the former Yugoslav Republic of Macedonia, China, Egypt, Kazakhstan and Russia – Calculation of the export price – Profit margin – Price undertaking – Injury – Causal link – Complaint – Rights of the defence – Obligation to state reasons)

In Case T‑190/08,

Chelyabinsk Electrometallurgical Integrated Plant OAO (CHEMK), established in Chelyabinsk (Russia),

Kuzneckie Ferrosplavy OAO (KF), established in Novokuznetsk (Russia),

represented by P. Vander Schueren, lawyer,

applicants,

v

Council of the European Union, represented initially by J.‑P. Hix, and subsequently by J.-P. Hix and B. Driessen, acting as Agents, assisted initially by G. Berrisch and G. Wolf, and subsequently by G. Berrisch, lawyers,

defendant,

supported by

European Commission, represented initially by H. van Vliet and K. Talabér‑Ritz, and subsequently by H. van Vliet and M. França, acting as Agents,

intervener,

APPLICATION for partial annulment of Council Regulation (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6), in so far as it affects the applicants,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 18 May 2010,

gives the following

Judgment

Background to the dispute

1 The applicants – Chelyabinsk Electrometallurgical Integrated Plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF) (Kuznetsk Ferroalloy Works OAO) – are two companies established in Russia and active in the production of ferro-silicon. At the material time, the sales of those two companies in the European Community were effected through related companies.

2 Following a complaint filed on 16 October 2006 by Euroalliages (the Liaison Committee of the Ferro-Alloy Industry), the Commission of the European Communities (now ‘the European Commission’; ‘the Commission’) initiated an anti-dumping proceeding, concerning imports of ferro-silicon originating in the former Yugoslav Republic of Macedonia, China, Egypt, Kazakhstan and Russia, pursuant to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended (‘the basic regulation’) (replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum in OJ 2010 L 7, p. 22)) and, in particular, pursuant to Article 5 of the basic regulation (now Article 5 of Regulation No 1225/2009). The notice of initiation of the proceeding was published in the Official Journal of the European Union of 30 November 2006 (OJ 2006 C 291, p. 34). The investigation into dumping and injury covered the period from 1 October 2005 to 30 September 2006 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from January 2003 to the end of the investigation period (‘the period under consideration’).

3 In the course of that proceeding, the applicants and their related companies lodged their replies to the Commission’s anti-dumping questionnaire on 15 January 2007. On the same date, they also submitted comments concerning the injury; the causal link between the alleged injury and the imports at issue; and the lawfulness of the initiation of the anti-dumping proceeding (‘the comments on the injury’).

4 From 2 May to 7 May 2007, Commission officials visited the premises of the applicants and their related companies in order to verify the data which they had supplied.

5 On 5 June 2007, a hearing was held at the Commission, during which the applicants presented their point of view on the injury, the causal link between that injury and the dumped imports, and the lawfulness of the decision to initiate the anti-dumping proceeding. As regards the causal link, the applicants highlighted, during the hearing, the role of steel demand and production costs, in particular energy costs, as well as the decision taken by a number of the Community producers voluntarily to switch to the production of other products and, in some cases, to cease production of ferro-silicon.

6 On 29 August 2007, the Commission published Regulation (EC) No 994/2007 of 28 August 2007 imposing a provisional anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2007 L 223, p. 1; ‘the provisional regulation’). The provisional regulation imposed inter alia a provisional anti-dumping duty, the rate of which was set at 22.8% for the applicants’ products.

7 By letter dated 30 August 2007, the Commission disclosed to the applicants the essential facts and considerations on the basis of which the provisional measures had been adopted (‘the provisional disclosure document’). By letter of 10 September 2007, the Commission sent the applicants a supplement to the provisional disclosure document concerning, more specifically, the question of the lawfulness of the initiation of the anti-dumping proceeding (‘the supplementary provisional disclosure document’).

8 On 1 October 2007, the applicants submitted their comments on the provisional disclosure document and on the supplementary provisional disclosure document. They reiterated their arguments concerning the assessment of the injury, the existence of a causal link between that injury and the dumped imports, and the lawfulness of the initiation of the anti-dumping proceeding. They also stated that the calculation of the export price was incorrect since the related importer’s profit margin, which was used to make that calculation, had been overstated, and that they had been the subject of ‘discrimination’, since the provisional disclosure document had been communicated early to Silmak Ltd, a producer of ferro-silicon established in the former Yugoslav Republic of Macedonia.

9 On 18 December 2007, the Commission sent the applicants a letter setting out the essential facts and considerations on the basis of which it proposed to recommend the imposition of definitive measures (‘the definitive disclosure document’). The definitive disclosure document contained an annex specifically relating to CHEMK (‘the definitive disclosure document specific to CHEMK’). In the definitive disclosure document, the Commission repeated its findings regarding the injury and the causal link. With regard to the calculation of the export price, the Commission explained that it had corrected the profit margin used to determine that price, no longer using the profit margin of the importer related to the applicants but the profit deemed to have accrued to an unrelated importer. However, the Commission did not, in the definitive disclosure document, alter its position regarding the lawfulness of the initiation of the anti-dumping proceeding and did not address the problem raised by the applicants concerning the early disclosure of the provisional disclosure document to Silmak.

10 The applicants submitted their comments on the definitive disclosure document by letter sent to the Commission on 7 January 2008. In that letter, as in the comments on the provisional disclosure document, the applicants devoted considerable argument to the matters of the determination of injury and the causal link between the alleged injury and the dumped imports. They also disputed the new method of calculating the profit margin to be taken into account in constructing the export price.

11 On 8 February 2008, the applicants submitted to the Commission a request for suspension of the anti-dumping measures, in accordance with Article 14(4) of the basic regulation (now Article 14(4) of Regulation No 1225/2009).

12 On 25 February 2008, the Council of the European Union adopted Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6; ‘the contested regulation’). Under Article 1 of the contested regulation, the rate of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, was set at 22.7% for the products manufactured by the applicants.

13 By letter of 28 February 2008, the Commission refused the applicants’ request for suspension.

Procedure and forms of order sought by the parties

14 By application lodged at the Court Registry on 14 May 2008, the applicants brought the present action, claiming that the Court should annul not only the contested regulation but also, in the alternative, the Commission decision of 28 February 2008 refusing the request, which they had sent to the Commission by letter of 8 February 2008, for suspension of the anti-dumping measures. The action has been brought against the Council and the Commission.

15 By document lodged at the Court Registry on 30 May 2008, the applicants applied for the adoption of measures of organisation of procedure and measures of inquiry.

16 By document lodged at the Court Registry on 19 September 2008, the Commission raised an objection of inadmissibility in respect of the application for annulment of its decision of 28 February 2008. By separate document, also lodged at the Court Registry on 19 September 2008, the Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council, in the event that the action is declared inadmissible in so far as it is directed against the above decision.

17 By document lodged at the Court Registry on 12 January 2009, the applicants submitted their observations on that objection of inadmissibility.

18 By order of 12 May 2009 in Case T-190/08 CHEMK and KF v Council and Commission, not published in the ECR, the General Court (Second Chamber) dismissed the action as inadmissible in so far as it was directed against the Commission decision of 28 February 2008. By the same order, the Court granted the Commission leave to intervene in support of the form of order sought by the Council.

19 By letter of 26 June 2009, the Commission informed the Court that it waived the right to lodge a statement in intervention, but that it would take part in the hearing.

20 The applicants claim that the Court should:

– annul the contested regulation in so far as it affects the applicants;

– order the Council to pay the costs.

21 The Council, supported by the Commission, contends that the Court should:

– dismiss the action;

– order the applicants to pay the costs.

Law

22 In support of the action, the applicants put forward five pleas in law. By the first plea, the applicants contest the determination of the export price. The second plea concerns the price undertaking offered by Silmak. By the third plea, the applicants challenge the assessment of injury. By the fourth plea, the applicants call in question the finding of a causal link between the dumped imports and the injury. Lastly, by the fifth plea, the applicants take issue with the Commission for failing to grant their requests for additional non-confidential information regarding the complaint.

1. First plea: use of a notional profit margin for the construction of the export price

The first part of the first plea: error of law in the interpretation of Article 2(9) of the basic regulation

Arguments of the parties

23 The applicants maintain that the Council erred in law in the interpretation of Article 2(9) of the basic regulation (now Article 2(9) of Regulation No 1225/2009), in so far as it considered that, under that provision, it had an obligation to use the notional profit margin of unrelated importers and not the actual profit margin of the related importer. According to the applicants, whilst Article 2(9) of the basic regulation does not require any specific method to be used for determining the reasonable margin for profit, it does not preclude the Council from using the actual profit margin of related importers, as is demonstrated by the Council’s past practice. In any event, neither Article 2(9) of the basic regulation nor alleged consistent practice makes it legally binding for the Council to use the profit margin of unrelated importers.

24 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

25 As a preliminary point, it should be noted that Article 2(8) of the basic regulation (now Article 2(8) of Regulation No 1225/2009) provides that the export price is the price actually paid or payable for the product when sold for export to the Community. The first subparagraph of Article 2(9) of the basic regulation (now the first subparagraph of Article 2(9) of Regulation No 1225/2009) provides that, in cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.

26 It is therefore apparent from Article 2(9) of the basic regulation that the Commission and the Council may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the institutions are required to base their determination of dumping on that price (Case T‑88/98 Kundan and Tata v Council [2002] ECR II‑4897, paragraph 49).

27 It should also be noted that, under the second subparagraph of Article 2(9) of the basic regulation (now the second subparagraph of Article 2(9) of Regulation No 1225/2009), where the export price is constructed on the basis of the price to the first independent buyer, or on any reasonable basis, adjustment for all costs incurred between importation and resale, and for profits accruing, is to be made so as to establish a reliable export price, at the Community frontier level. The third subparagraph of Article 2(9) of the basic regulation (now the third subparagraph of Article 2(9) of Regulation No 1225/2009) provides that the items for which adjustment is to be made are to include a reasonable margin for selling, general and administrative costs and profit.

28 Although Article 2(9) of the basic regulation provides that an adjustment is to be made for a profit margin, that provision does not – as the parties point out – lay down the method for calculating or determining that margin. It merely states that the profit margin that is to be adjusted must be reasonable.

29 According to case-law, such a reasonable profit margin may, where there is an association between producer and importer within the Community, be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer (see, with regard to Article 2(8)(b) of Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1), which is substantively identical to Article 2(9) of the basic regulation, Joined Cases 273/85 and 107/86 Silver Seiko and Others v Council [1988] ECR 5927, paragraph 25, and Joined Cases 277/85 and 300/85 Canon and Others v Council [1988] ECR 5731, paragraph 32).

30 Accordingly, in the light of the foregoing, Article 2(9) of the basic regulation must be interpreted as giving institutions the choice between using the actual profit margin of the related importer and using a notional profit margin of unrelated importers, the sole obligation being that the margin must be reasonable.

31 It is in the light of those principles that it is appropriate to consider the applicants’ allegation that the Council erred in law in the interpretation of Article 2(9) of the basic regulation.

32 First of all, it should be noted that it is agreed between the parties that, during the investigation period, sales of ferro-silicon produced by the applicants took place through related companies. Consequently, the institutions were not caught by the obligation, laid down in Article 2(8) of the basic regulation, to take as the basis the actual export price, that is to say, the price actually paid for the product when sold for export to the Community. On the contrary, it was possible in the circumstances to apply Article 2(9) of the basic regulation; in other words, it was permissible to construct the export price, which means also that the institutions were free to choose any method which would enable a reasonable profit margin to be determined.

33 Also, it should be noted that the applicants do not dispute that finding. On the contrary, they state that the institutions were free to choose between the notional profit margin of an unrelated importer and the actual profit margin of the related importer. None the less, as the applicants stated in reply to a question raised by the Court by way of a measure of organisation of procedure, it is apparent, in their opinion, from the words used by the institutions – both in paragraph 41 of the definitive disclosure document and in recital 41 to the contested regulation – that the institutions considered themselves to be under an obligation, pursuant to Article 2(9) of the basic regulation, to use the notional profit margin of an unrelated importer when calculating the export price.

34 The Court considers that the wording of paragraph 41 of the definitive disclosure document and of recital 41 to the contested regulation do not support the applicants’ assertion. The institutions state at those points that, in line with consistent practice, the profit to be used should be based on the profit achieved by unrelated importers. That statement makes no mention of an obligation to use the notional profit margin of an unrelated importer. It is simply a reference to the institutions’ practice, in accordance with which that margin is generally used for calculating the export price where there is an association between an exporter and an importer.

35 That interpretation of paragraph 41 of the definitive disclosure document and of recital 41 to the contested regulation – to the effect that the institutions intended to refer merely to a practice which, according to circumstances, is or is not observed – is borne out by the institutions’ past practice as described by the applicants themselves in their pleadings. Thus, the applicants refer in their pleadings to Council Regulation (EEC) No 374/87 of 5 February 1987 definitively collecting the provisional anti-dumping duty and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan (OJ 1987 L 35, p. 32), in which the Council used the actual profit margin of related importers to construct export prices.

36 In the light of the foregoing, it must be held that the use, in the present case, of the notional profit margin of unrelated importers did not come about because the institutions believed themselves to be under an obligation to use the profit margin of unrelated importers but because they chose to do so, since the profit margin of a related importer is distorted by the transfer price between the related companies.

37 It follows that, contrary to what the applicants claim, no error of law was made in that regard.

38 For the sake of completeness, it should be noted that it is settled law that, in the field of measures to protect trade, the institutions enjoy a wide discretion and the powers of review enjoyed by the Courts of the European Union are restricted accordingly (Case T-97/95 Sinochem v Council [1998] ECR II‑85, paragraph 51, and Case T-118/96 Thai Bicycle v Council [1998] ECR II‑2991, paragraphs 32 and 33). In the application of that case-law, no exception falls to be made for the determination of a reasonable profit margin since it necessarily entails complex economic assessments (see, by analogy, Case T-51/96 Miwon v Council [2000] ECR II‑1841, paragraph 42, and Kundan and Tata v Council, paragraph 26 above, paragraph 50).

39 As it is, in the context of this part of the first plea, the applicants merely claim that the Council erred in law in interpreting Article 2(9) of the basic regulation, since it erroneously believed that it was under an obligation to use the notional profit margin of unrelated importers, whereas that provision does not preclude the use of the actual profit margin of related importers, and at no time do they try to show that the institutions made a manifest error of assessment in so far as they decided in fact to use that notional profit margin rather than the actual profit margin of the related importer.

40 It follows that the first part of the first plea must be rejected as unfounded.

The second part of the first plea: breach of the obligation to state reasons

Arguments of the parties

41 The applicants claim that the Council acted in breach of the obligation to state reasons, as laid down in Article 253 EC, when it decided, without an adequate explanation, not to use the actual profit margin of the related importer and to construct the export price on the basis of a notional profit margin for an unrelated importer.

42 First, the applicants argue, the Council never provided them with the reasons which had led it to find that the actual profit of their related importer was less reasonable than a notional profit margin based on the profit margins of unrelated importers. Secondly, the mere reference by the Council to its past practice of using a notional profit margin determined by reference to the profit margin of unrelated importers is not an adequate explanation for the purposes of Article 235 EC.

43 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

44 According to the case-law, the statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the European Union (‘EU’) authority which adopted the contested measure, so as to inform the persons concerned of the justification for the measure adopted and thus to enable them to defend their rights and the Courts of the European Union to exercise their powers of review (Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraph 88, and Case T‑48/96 Acme v Council [1999] ECR II‑3089, paragraph 141).

45 In that regard, it should be made clear that the Council is not required to reply, in the statement of reasons for the regulation, to all the points of fact and law raised by the persons concerned during the administrative procedure (Case T‑171/97 Swedish Match Philippines v Council [1999] ECR II‑3241, paragraph 82). Moreover, the statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it meets the applicable requirements must be assessed with particular regard to the context of the measure and to all the legal rules governing the matter in question (Case T‑164/94 Ferchimex v Commission [1995] ECR II‑2681, paragraph 118). It is sufficient if the Council sets out the facts and legal considerations which have decisive importance in the context of the regulation (see, to that effect, Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraphs 103 and 104).

46 In the present case, the Council explained, in recital 41 to the contested regulation and in paragraph 41 of the definitive disclosure document, that: (i) the profit used for constructing the export price at the provisional stage was that of the related importer concerned; (ii) in line with the consistent practice of the EU institutions, the amount of profit to be used should be based on that achieved by unrelated importers; and (iii) the profit margin used at the provisional stage had therefore had to be corrected, leading to a slight increase in the profit used, although the applicants claimed that the profit level was overstated.

47 Contrary to the assertions made by the applicants, it is shown clearly and unequivocally, in recital 41 to the contested regulation and in paragraph 41 of the definitive disclosure document, that the institutions’ decision, taken at the stage when the definitive anti-dumping measures were adopted, not to use the actual profit margin of the importer related to the applicants and to construct the export price on the basis of a notional profit margin for an unrelated importer was the direct consequence of the link existing between the applicants and their importer. At the same time, the institutions informed the applicants that they considered it more reasonable to use the notional profit margin of unrelated importers rather than the profit margin of the related importer.

48 Moreover, it should be observed that, in their comments on the definitive disclosure document, the applicants challenged the institutions’ decision to use a notional profit margin, thus showing that they had understood the institutions’ reasoning perfectly and were in a position to defend their rights. In particular, the applicants explained the reasons why they considered it inappropriate in the circumstances to use the profit margin of an unrelated company. Secondly, they explained that the actual profit margin of the related importer was reliable and reasonable. Thirdly, they argued that, even though it had been the Commission’s consistent practice to use a notional profit margin of an unrelated importer, there was nothing in the basic regulation to prevent the Commission from using the actual profit margin of a related company.

49 The second part of the first plea must therefore be rejected as unfounded.

The third part of the first plea: infringement of the rights of defence

Arguments of the parties

50 The applicants maintain that the Council adversely affected their rights of defence since, as it had not stated reasons, they were not in a position to defend their interests properly. Thus, until the defence was lodged, the Council had never presented the applicants with an opportunity to comment on its rationale for the use of the notional profit margin. In particular, it was only at the defence stage that the Council explained the nature of the error made, at the provisional regulation stage, when determining the actual profit margin, an error of which the applicants were not informed until 3 March 2008, after the contested regulation had been adopted.

51 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

52 It is settled law that the rights of the defence 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 (Case C‑49/88 Al-Jubail Fertilizer v Council [1991] ECR I‑3187, paragraph 15). In particular, the undertakings concerned should 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 and the resultant injury (Al-Jubail Fertilizer, paragraph 17).

53 It is in the light of the above considerations that it must be determined whether the Council acted in breach of the applicants’ rights of defence.

54 First, with regard to the applicants’ argument that, prior to the statement in defence, the Council never presented the applicants with an opportunity to comment on its rationale for the use of the notional profit margin, it should be pointed out that, as was stated in paragraphs 47 and 48 above, both paragraph 41 of the definitive disclosure document and recital 41 to the contested regulation stated clearly and unequivocally that the institutions’ decision not to use the actual profit margin of the importer related to the applicants had been the direct consequence of the link existing between the applicants and their importer. Moreover, in their comments on the definitive disclosure document, the applicants challenged the institutions’ decision to use a notional profit margin. It follows that, not only were the applicants in a position in which they could effectively make known their views on the use of a notional profit margin, but also they did in fact make known their views in that respect.

55 With regard to the applicants’ argument that, until the defence stage, the Council gave them no explanation concerning the nature of the error made when determining the actual profit margin, it should be pointed out that the actual profit margin was used to construct the export price for the purposes of introducing the provisional anti-dumping measures. On the other hand, it is apparent from recital 41 of the contested regulation that a notional profit margin was used at the stage of introducing the definitive anti-dumping measures. However, the applicants have not shown how the explanations which, they argue, they received out of time were relevant for the defence of their interests in the context of the adoption of the contested regulation.

56 It follows that there was no infringement of the applicants’ rights of defence.

57 The third part of the first plea must therefore be rejected as unfounded.

The fourth part of the first plea: breach of the principle of sound administration

Arguments of the parties

58 The applicants maintain, in the reply, that the Council failed to observe its duty to exercise due care and acted in breach of the principle of sound administration. In their submission, it is clear from the defence that the Council made a manifest error of assessment which the applicants were prevented from challenging in the application because the Council had not addressed their arguments in a timely manner.

59 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

60 Under the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute and Article 44(1)(c) and (d) of the Rules of Procedure of the General Court, all applications must indicate the subject-matter of the proceedings and the form of order sought by the applicant, and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the General Court to decide the case. In order to ensure legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, for the essential facts and points of law on which the action is based to be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible (Case T‑195/95 Guérin automobiles v Commission [1997] ECR II‑679, paragraph 20, and Case T‑19/01 Chiquita Brands and Others v Commission [2005] ECR II‑315, paragraph 64).

61 As it is, the facts and points of law on which the applicants base this complaint are not stated in a comprehensible manner in their pleadings. Thus, they claim that, because the Council had not addressed their arguments in a timely manner, they were prevented from challenging a manifest error of assessment. However, the applicants do not specify the arguments to which they refer; nor do they identify the manifest error of assessment alleged.

62 Accordingly, the fourth part of the first plea must be rejected as inadmissible and, consequently, the first plea must be rejected in its entirety.

2. The second plea, concerning the price undertaking offered by Silmak

The first part of the second plea: breach of the principle of equal treatment

Arguments of the parties

63 The applicants claim that the Council acted in breach of the principle of equal treatment by communicating the provisional disclosure document to Silmak early, thus enabling it to offer a price undertaking. They point out that the Council failed to disclose that document to them at the same time, even though they were in exactly the same situation as Silmak. They also submit that, according to the judgment in Case C‑323/88 Sermes [1990] ECR 1-3027 (paragraphs 46 and 47), ‘discrimination’ cannot be justified by reference to differences in the legal status of the interested parties unless there is a legislative basis for those differences. As it is, the Council itself referred to consistent practice, not to a legal act.

64 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

65 The principle of non-discrimination prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (Case C‑422/02 P Europe Chemi-Con (Deutschland) v Council [2005] ECR I‑791, paragraph 33).

66 In that regard, the Court considers that the applicants and Silmak could not be regarded as being in similar situations.

67 It should be recalled that the Council explains in its pleadings that the institutions acted in accordance with the principles set out in the conclusions of the European Council which took place in Essen, Germany, on 9 and 10 December 1994, and in Article 36(2) of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part (OJ 2004 L 84, p. 13; ‘the SAA’). In the light of those principles, the Commission has established a consistent practice with respect to anti-dumping investigations concerning countries which are candidates for accession whereby, approximately two months before the imposition of provisional measures, it informs the Stabilisation and Association Council, the government concerned and the exporting producers of the facts on the basis of which it proposes to recommend the imposition of provisional measures. The Council states that that information, which relates only to the facts establishing dumping, is mainly intended to enable the exporter to offer a price undertaking.

68 It should be noted that, as the Council observed, Article 36(2) of the SAA provides that (i) the Stabilisation and Association Council must be informed of the dumping case as soon as the anti-dumping investigation has been initiated and (ii) if no end has been put to the dumping or no other satisfactory solution has been reached within 30 days of the matter being referred to the Stabilisation and Association Council, appropriate measures may be adopted. It is clear from that provision that exchanges between the Commission and exporting producers established in the former Yugoslav Republic of Macedonia must necessarily take place before provisional anti-dumping measures are imposed; otherwise, no satisfactory solution for the purposes of that provision can be envisaged. For the same reason, it is clear from that provision that the essential considerations and facts on the basis of which the institutions propose to recommend the imposition of provisional anti-dumping measures must be disclosed to the exporting producers; otherwise it might be difficult for those producers to propose a satisfactory solution.

69 As Silmak was a producer established in the former Yugoslav Republic of Macedonia, it was covered by that provision and received the provisional disclosure document early, which enabled it to make an offer of a price undertaking to the Commission. Consequently, the early disclosure of that document to Silmak does not constitute a breach of the principle of equal treatment, since, given that Article 36(2) of the SAA applied, Silmak was in a different situation from that of the applicants.

70 That finding is not affected by the argument put forward by the applicants on the basis of Sermes, paragraph 63 above.

71 First, contrary to the assertions made by the applicants, the Court of Justice does not state in a general manner in that judgment that ‘discrimination’ cannot be justified by reference to differences in the legal status of the interested parties unless there is a legislative basis for those differences. In Sermes, the applicant claimed that the application of specific provisions relating to German internal trade – which enabled exports to be made, exempt from anti-dumping duties, from the German Democratic Republic to the Federal Republic of Germany – entailed ‘discrimination’. In its judgment, the Court replied that the difference in treatment referred to by Sermes had a legislative basis in a protocol which formed an integral part of the Treaty and could not therefore be regarded as ‘discriminatory’. The Court therefore merely held that the fact that a protocol forming an integral part of the Treaty laid down specific provisions relating to German internal trade constituted an objective reason justifying more favourable treatment for exporting producers established in the German Democratic Republic, in accordance with the case-law cited in paragraph 65 above.

72 Secondly, it should in any event be noted that in the present case, as stated in paragraph 68 above, there is a legislative basis for the difference in treatment between Silmak and the applicants, namely, Article 36(2) of the SAA.

73 For the sake of completeness, it should be observed that the applicants have not proved to the requisite legal standard that the finding of ‘discriminatory treatment’ with regard to disclosure of the provisional disclosure document could have affected the lawfulness of the contested regulation, thereby justifying its annulment. When questioned on that point at the hearing, the applicants stated that they had explained in their pleadings that a result of that ‘discriminatory treatment’ was that in the contested regulation the Council imposed an obligation to pay anti-dumping duties for a period of five and a half years in the case of the applicants, and for only five years in the case of Silmak.

74 However, assuming, on the one hand, that that contention must be interpreted as meaning that the contested regulation should be annulled, so far as the applicants are concerned, on the ground that Silmak should also have been obliged to pay anti-dumping duties for a period of five and a half years, it should be borne in mind that, according to case-law, respect for the principle of equal treatment or non‑discrimination, as set out in paragraph 65 above, must be reconciled with respect for the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14 and the case‑law cited; Case T‑308/94 Cascades v Commission [1998] ECR II‑925, paragraph 259; and Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 367). Accordingly, the applicants cannot base their application for annulment of the contested regulation, in so far as it affects them, on the fact that that regulation, unlawfully, imposes on Silmak an obligation to pay duties for five years only.

75 Assuming, on the other hand, that that contention must be interpreted as meaning that the contested regulation should be annulled, so far as the applicants are concerned, on the ground that the they, like Silmak, should have been obliged to pay anti-dumping duties for a period of five years only, it should be noted that, as emerges from recital 132 to the contested regulation, the applicants offered a price undertaking to the Commission and the latter rejected that undertaking. However, the applicants have not put forward any argument to show that the price undertaking that they could have offered earlier – at the same time as Silmak – would have been different in content from the undertaking they offered after the disclosure of the definitive disclosure document and would therefore have had a better chance of being accepted by the Commission. Thus, the finding of ‘discriminatory treatment’ in favour of Silmak was not, in any event, capable of justifying annulment of the contested regulation.

76 In the light of all the foregoing considerations, the first part of the second plea must be rejected as unfounded.

The second part of the second plea: infringement of Article 6(7), Article 8(4) and Article 20(1) of the basic regulation

Arguments of the parties

77 The applicants maintain that the Council infringed Article 20(1), Article 6(7) and Article 8(4) of the basic regulation (now Article 20(1), Article 6(7) and Article 8(4) of Regulation No 1225/2009).

78 First, the applicants point out that Article 20(1) of the basic regulation provides that the provisional disclosure document can be communicated to exporters only after provisional anti-dumping measures have been adopted and upon a written request. As it is, according to the applicants, despite the fact that Silmak had made no written request to the Commission for disclosure of the provisional disclosure document, the Commission sent it the document on 11 July 2007, well in advance of the adoption of the provisional regulation.

79 Secondly, the applicants maintain that the price undertaking proposed by Silmak on the basis of the unlawful disclosure of the provisional disclosure document was not added to the non-confidential file of the proceeding until after the formal publication of the provisional regulation, which was, in their view, contrary to Articles 6(7) and 8(4) of the basic regulation. Indeed, the applicants first learned of the price undertaking from the provisional regulation and were not able to inspect its non-confidential version until 3 September 2007.

80 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

81 In the first place, as regards the complaint alleging infringement of Article 20(1) of the basic regulation, it should be pointed out that that provision concerns disclosure to the parties. More specifically, it provides that the parties concerned may request disclosure of the essential facts and considerations on the basis of which provisional measures have been imposed and lays down the practical details. Thus, Article 20(1) of the basic regulation provides that requests for disclosure are to be made in writing immediately following the imposition of provisional measures, and the disclosure is to be made in writing as soon as possible thereafter.

82 However, there is nothing in the wording of that provision from which to conclude, as do the applicants, that the provisional disclosure document cannot be disclosed to exporters until after the adoption of provisional anti-dumping measures and upon a written request. Although it may be inferred from Article 20(1) of the basic regulation that the parties concerned cannot request disclosure of the disclosure document before the imposition of provisional measures and must make their request in writing, that provision does not preclude the Commission from taking the initiative of disclosing that document before the imposition of provisional measures and without a request being made to it in writing to that effect.

83 Thus, the applicants’ complaint is based on a misreading of Article 20(1) of the basic regulation and must therefore be rejected.

84 In the second place, as regards the complaint alleging infringement of Article 6(7) and Article 8(4) of the basic regulation, it should be noted that, in essence, Article 6(7) of the basic regulation provides that the parties concerned may apply in writing for leave to inspect the non-confidential file of the proceeding, and that they may make comments on the information on that file and that the Commission must take those comments into consideration. Article 8(4) of the basic regulation provides that parties which offer an undertaking are required to provide a non-confidential version of that undertaking, so that it can be made available to interested parties to the investigation.

85 Again, it should be noted that there is nothing in the wording of those provisions to support the applicants’ claim that the fact that the price undertaking offered by Silmak was not added to the non-confidential file of the proceeding until after the formal publication of the provisional regulation was contrary to Articles 6(7) and 8(4) of the basic regulation. Although those provisions impose both an obligation for parties which have offered a price undertaking to provide a non-confidential version of that undertaking and an obligation for the Commission to provide access to that non-confidential version for interested parties which have made a request for it in writing, they do not mention – and, a fortiori, impose no obligation – as regards the precise time at which a copy of the price undertaking must be added to the non-confidential file of the proceeding.

86 Accordingly, as with the preceding complaint, it must be held that this complaint is based on a misreading of Article 6(7) and Article 8(4) of the basic regulation and must therefore be rejected.

87 Furthermore, it should be pointed out that a procedural irregularity such as the irregularity relied upon by the applicants in the present case cannot lead to annulment of the contested regulation unless it is actually capable of affecting the applicants’ rights of defence, hence the content of that regulation (see, to that effect, Case 30/78 Distillers Company v Commission [1980] ECR 2229, paragraph 26).

88 As it is, the applicants have not put forward any argument to show that the price undertaking that they could have offered earlier, after inspecting Silmak’s undertaking and the provisional disclosure document, would either have differed in content from the undertaking that they offered after the disclosure of the definitive disclosure document or have had a better chance of being accepted by the Commission. Accordingly, they have not demonstrated that, in the absence of the alleged irregularities, the content of the contested regulation would have been different so far as they are concerned.

89 In the light of the foregoing considerations, the second part of the second plea must be rejected as unfounded.

The third part of the second plea: breach of the obligation to state reasons

Arguments of the parties

90 The applicants maintain that the Council failed to fulfil its obligation to state reasons. They explain that, even though, in their comments on the provisional disclosure document, they had alleged breach of the principle of equal treatment, the Council never explained to them, even in the contested regulation, the reasons why it had disclosed the provisional disclosure document early, initiated talks on the price undertaking and adopted that undertaking.

91 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

92 This complaint must be examined in the light of the case-law cited in paragraphs 44 and 45 above.

93 In the present case, the Commission set out, in recitals 175 and 180 to the provisional regulation, the reasons why it found Silmak’s offer of an undertaking to be acceptable. The Council, too, explained, in recitals 130 to 132 to the contested regulation, the reasons why it had decided not to accept the undertakings offered by the four exporting producers and to withdraw acceptance of the undertaking offered by Silmak. In so doing, the institutions complied with the requirements laid down in the case-law cited in paragraphs 44 and 45 above.

94 However, according to the same case-law and contrary to the assertions made by the applicants, the Council was not required to reply to their comments relating to the allegation that the early disclosure of the provisional disclosure document had given rise to breach of the principle of equal treatment. Although the reasons why price undertakings offered to the Commission are accepted or rejected are essential in the context of the contested regulation, it cannot be said that that is also the case as regards the reasons for early disclosure of the definitive disclosure document to Silmak. In that regard, it should be noted that it has been established in paragraphs 73 to 75 above that the finding of a breach of the principle of equal treatment in connection with the early disclosure of that document was not capable of affecting the lawfulness of the contested regulation. Accordingly, even if the applicants had obtained explanations concerning the reasons for the early disclosure of the provisional disclosure document, those explanations would not have enlightened them as to the reasons why their price undertaking had been rejected, and Silmak’s had been accepted at the provisional stage and rejected at the definitive stage. In other words, the reasons for the early disclosure of the provisional disclosure document cannot be regarded as fundamental to the contested regulation, so that, without explanations concerning those reasons, the applicants would be unable to understand that regulation.

95 The third part of the second plea must therefore be rejected as unfounded.

The fourth part of the second plea: infringement of the applicants’ rights of defence

Arguments of the parties

96 The applicants claim that their rights of defence have been infringed, in so far as Silmak’s price undertaking was not added to the non-confidential file in due time, that is to say, at a time when the non-confidential data served the rights of defence of the interested parties. Although the Council claims to have added the undertaking to the non-confidential file on 3 August 2007, the applicants point out that the copy of the undertaking that they consulted in the non-confidential file bears the date of 3 September 2007, which means that it was not in fact added to the non-confidential file before that date. Accordingly, the applicants were unable to offer a price undertaking before the adoption of the provisional measures and their rights of defence were infringed.

97 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

98 It should be noted that, according to the case-law referred to in paragraph 52 above, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views. It is also apparent from the case-law that there can be no question of infringement of the rights of defence if it is established that, in spite of the irregularity committed by the institutions, the applicants were in a position, during the administrative procedure, effectively to make known their views (Case T‑147/97 Champion Stationery and Others v Council [1998] ECR II‑4137, paragraph 79). Lastly, it is for the applicant to show that in the absence of that irregularity it would have been better able to defend itself (see, to that effect, Case C‑51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 81, and Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 318).

99 In the present case, the applicants claim that the non-confidential version of the price undertaking offered by Silmak should have been added to the file of the proceeding on 3 August 2007, before the adoption of the provisional regulation. However, they do not explain how that irregularity prevented them from effectively making known their views; nor do they explain how, in the absence of that irregularity, they would have been better able to defend themselves. In that regard, although the applicants did not have access to the non-confidential version of the price undertaking offered by Silmak before the adoption of the provisional regulation, they were none the less in a position to submit such an undertaking to the Commission, as is mentioned in recital 132 to the contested regulation, following disclosure of the definitive disclosure document. The applicants have not put forward any evidence to show that the undertaking that they could have offered earlier, after inspecting Silmak’s undertaking, would either have differed in content from the undertaking that they offered following disclosure of the definitive disclosure document or have had a better chance of being accepted by the Commission. It must therefore be held that the applicants would not have been better able to defend themselves if they had had access to Silmak’s undertaking before the adoption of the provisional regulation.

100 No breach of the applicants’ rights of defence can therefore be imputed to the institutions. It follows that the fourth part of the second plea must be rejected as unfounded.

101 In the light of the foregoing considerations, the second plea must be rejected in its entirety.

3. The third plea, concerning the injury analysis

Arguments of the parties

102 The applicants claim that the Council infringed Article 3(6) of the basic regulation (now Article 3(6) of Regulation No 1225/2009) because most of the Community industry did not suffer injury. Indeed, it is common ground that FerroAtlántica SL and FerroPem SAS, two Community producers of ferro-silicon, which during the investigation period constituted a very substantial part of the Community industry in terms of production capacity and production volume, did not suffer any injury during that period, since their production, sales and capacity utilisation rates remained stable and even increased. The Council nevertheless found, on the basis of Article 4 and Article 3(5) of the basic regulation (now Article 4 and Article 3(5) of Regulation No 1225/2009), that it had to determine the material injury to the Community industry as a whole. The applicants submit that, by so doing, the Council clearly made several ‘significant errors’.

103 First, it is erroneous in law, the applicants argue, to state that the assessment of injury requires the Council to consider only those economic factors which affect all members of the Community industry in the same way. In that regard, the applicants submit that, while Article 3 of the basic regulation indeed requires that the material injury should be determined by reference to the Community industry, that provision does not say whether the Commission must rely solely on the performance, established in the form of a weighted average, of the Community industry as a whole or should also consider the individual performance of each Community producer.

104 Secondly, the applicants argue that the Council is required to establish the existence of material injury, within the meaning of Article 3(1) and (6) of the basic regulation (Article 3(1) of the basic regulation having become Article 3(1) of Regulation No 1225/2009). First of all, according to the applicants, since most of the Community industry did not suffer any injury, there can be no material injury to the Community industry, as a matter either of law or of fact. The applicants go on to argue that measures imposed in such circumstances are disproportionate. Lastly, they maintain that a finding that material injury has been caused to the Community industry, when most of that industry did not in fact suffer injury, cannot be regarded as based on ‘reliable and creditworthy evidence’ or as having been arrived at in an even-handed manner. As it is, Article 3(2) of the basic regulation (now Article 3(2) of Regulation No 1225/2009) requires that a determination of that kind is to be based on positive evidence and on an objective examination of the impact on the Community industry of the imports alleged to have been dumped.

105 Thirdly, the applicants maintain that the Council’s approach, which consists in determining the injury on the basis of weighted average results for the Community industry as a whole, is not provided for in the basic regulation and a fortiori is not set forth in that regulation as the only method of determining whether injury exists. Furthermore, if the Council’s approach, which consists in determining injury on the basis of the weighted average results for the Community industry as a whole, is correct, that would be at odds with the prohibition against the abuse of rights, which is a general principle of EU law, as demonstrated by the case-law.

106 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

107 The applicants dispute, in essence, the Council’s conclusion that the Community industry suffered injury, when, according to the applicants, the production, sales and capacity utilisation rates of two Community producers representing the major part of the Community industry remained stable and even increased. They argue that, in reaching that conclusion, the Council infringed Article 3(6) of the basic regulation.

108 Examination of the third plea requires a two-stage approach. First, it is necessary to interpret Article 3(6) of the basic regulation and, more generally, Article 3 of that regulation, which concerns determination of injury, in order to determine the obligations which that provision imposes on the institutions in terms of the method for assessing the injury. It is then necessary to decide whether, in the present case, the institutions acted in accordance with the principles laid down in that provision, in the light, inter alia, of the situation of FerroPem and of FerroAtlántica, as described by the applicants.

109 In the first place, with regard to the interpretation of Article 3(6) of the basic regulation, which the applicants claim has been infringed, it should be noted that that provision sets out three principles: (i) an injury analysis requires the institutions to demonstrate the impact of the dumped imports on the Community industry; (ii) it is the impact of the volume and/or price levels of the dumped imports which must be analysed; and (iii) the injury must be material.

110 However, that provision does not describe the method to be followed by the institutions when analysing the impact of the volume and/or prices of dumped imports on the Community industry. In that regard, reference should be made to Article 3(2) and (5) of the basic regulation. Article 3(2) of that regulation provides, generally, that determination of injury is to be based on positive evidence and involve an objective examination. Article 3(5) of the basic regulation provides that the examination of the impact of the dumped imports on the Community industry concerned is to include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry. It sets out a non-exhaustive list of those relevant economic factors and indices and specifies that ‘nor can any one or more of these factors necessarily give decisive guidance’.

111 Accordingly, it is apparent in essence from paragraphs 2, 5 and 6 of Article 3 of the basic regulation, read together, that determination of injury involves an objective examination based on positive evidence of the impact of the volume and/or prices of dumped imports on the state of the Community industry and that that examination consists in an evaluation of the relevant economic factors and indices with regard to the state of that industry.

112 It should also be pointed out that the term ‘Community industry’, to which paragraphs 2, 5 and 6 of Article 3 of the basic regulation refer, is defined in Article 4(1) of that regulation (now Article 4(1) of Regulation No 1225/2009), which provides that the term ‘Community industry’ is to be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4) of the basic regulation (now Article 5(4) of Regulation No 1225/2009), of the total Community production of those products.

113 Article 5 of the basic regulation concerns the initiation of the anti-dumping proceeding. Article 5(4) provides that a complaint leading to the initiation of an anti-dumping investigation is to be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total Community production of the product concerned.

114 Thus, it is apparent from analysis of the provisions referred to in paragraphs 109 to 113 above that, although the examination by the institutions must lead to the finding that the injury to the Community industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend. Also, the institutions must evaluate the impact of the dumped imports on the state of the Community industry as a whole – that is to say, on Community producers as a whole or at least on the state of Community producers which have supported the initiation of the anti-dumping proceeding whose collective output represents more than 50% of the total Community production of the product concerned – but they are free to choose the method to be used in order to do so. By way of example, as the applicants point out, the institutions are just as entitled to prove that injury has been caused to each Community producer as to prove such injury on the basis of the aggregated or weighted data of Community producers as a whole comprising the Community industry within the meaning of Article 4(1) and Article 5(4) of the basic regulation.

115 In the second place, it is necessary to determine whether, in the circumstances, the analysis carried out by the institutions was consistent with Article 3(6) of the basic regulation and with Article 3 of that regulation more generally, as interpreted in paragraphs 109 to 114 above.

116 In that regard, it should be recalled as a preliminary point that, 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 (see Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723, paragraph 40 and the case‑law cited, and Case C‑535/06 P Mosaer Baer India v Council [2009] ECR I‑7051, paragraph 85).

117 According to case-law, the determination of injury to the Community industry requires an assessment of complex economic situations and review by the Courts of such an assessment must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (Mosaer Baer India v Council, paragraph 116 above, paragraph 86).

118 In that context, it should be observed that the injury analysis was carried out by the institutions on the basis of data relating to six Community producers, including FerroPem and FerroAtlántica. It should also be observed that the explanations provided by the Commission in that regard – set out in recitals 77 and 78 of the provisional regulation – are not disputed by the applicants. The Commission thus explained that there were seven Community producers of ferro-silicon during the investigation period; that the complaint which prompted the anti-dumping proceeding which gave rise to the contested regulation had been lodged by five Community producers; that a sixth Community producer had decided to support the proceeding by cooperating in the investigation; and that the seventh producer had not taken any position and had supplied no data. According to the Commission, the six cooperating Community producers accounted for 95% of the Community production of ferro-silicon during the investigation period.

119 On that basis, the institutions analysed the development of the relevant economic factors and indices, from the point of view of the state of the Community industry, in accordance with Article 3(5) of the basic regulation. That analysis was carried out on the basis of the aggregated or weighted data, depending on the type of economic factor or index, of the six Community producers which cooperated in the proceeding. Thus, in recitals 91 to 106 of the provisional regulation, the Commission analysed in particular the evolution of the following: Community production, production capacity, capacity utilisation, stocks, sales, market shares, weighted average prices, profitability, cash flows, investments, return on investments, ability to raise capital, employment, productivity and wages. The figures given in those recitals are not disputed by the applicants. The Commission concluded in recitals 107 to 109 of the provisional regulation that, although certain economic indices had remained stable or had shown a positive trend, the state of the Community industry had deteriorated significantly during the period under consideration. That analysis was fully confirmed by the Council in recital 82 of the contested regulation.

120 More specifically, the analysis of the evolution of production, of capacity utilisation and of sales – set out in recitals 91, 93 and 95, respectively, of the provisional regulation – disclosed negative trends, although, as the applicants observe, the data provided by FerroPem and FerroAtlántica, which were included in that analysis, were stable or revealed a positive trend.

121 It must therefore be held that the methodology used by the institutions in carrying out that analysis – the use of aggregated or weighted data – is consistent with Article 3(6) of the basic regulation and, more generally, with Article 3 of that regulation, as interpreted in paragraphs 109 to 114 above. It follows that, since none of the arguments raised by the applicants demonstrates that that analysis is flawed by a manifest error of assessment, that analysis cannot be called into question.

122 First, it is irrelevant to argue that it is erroneous in law to state that the injury analysis requires the Council to consider only the economic factors which affect all members of the Community industry in the same way, in view of the fact, established in paragraphs 119 and 120 above, that the Council did not consider only the economic factors which affected all members of the Community industry in the same way.

123 Secondly, it is unconvincing to argue that the determination of material injury to the Community industry, most of which did not in fact suffer injury, cannot be regarded as based on ‘reliable and creditworthy evidence’ or as having been made in an even-handed manner. It was established in paragraphs 119 and 120 above that the data of FerroPem and FerroAtlántica had been taken into account and that the analysis carried out by the institutions was broadly consistent with Article 3(6) of the basic regulation and, more generally, with Article 3 of the basic regulation. Moreover, the applicants have not adduced any evidence to show that that analysis was flawed by a manifest error of assessment – indicating, for example, that the data of FerroPem and FerroAtlántica concerning production, sales and production capacity should have been weighted and not aggregated.

124 Thirdly, since it lacks precision, the applicants’ complaint alleging an abuse of rights must be declared inadmissible, pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute and Article 44(1)(c) and (d) of the Rules of Procedure of the General Court, as interpreted by the case-law referred to in paragraph 60 above.

125 It follows that the third plea must be rejected as being in part unfounded and in part inadmissible.

4. The fourth plea, concerning the analysis of the causal link between the dumped imports and the injury

126 The fourth plea can be broken down into six parts.

The first part of the fourth plea: the impact on the Community industry of the withdrawal from the Community market of third country producers, and of production switches and reductions made by a number of Community producers

Arguments of the parties

127 In the first place, the applicants claim that the Council’s findings relating to the impact on the Community industry of the volume of dumped imports, set out in recitals 112 to 114 of the provisional regulation and confirmed in recital 86 to the contested regulation, are manifestly wrong and accordingly in breach of Article 3(6) of the basic regulation. They point out that, in their comments on the provisional disclosure document, they showed that, although the industry had suffered injury, that injury could not have been caused by the dumped imports, since those imports had not facilitated the capture of any market share that was not willingly vacated by the Community ferro-silicon producers.

128 In that regard, first, the applicants maintain that they have established that the increase in the volume of dumped imports was due, to a large extent, to the ‘void’ left on the Community market as a result of the withdrawal of producers from Norway, Iceland and Venezuela, and the inability of the Community ferro-silicon producers to satisfy the subsequent demand from Community users. Also, the remaining increase in the volume of dumped imports can be explained by the facts that: (i) OFZ a.s., a ferro-silicon producer, switched production to another product; (ii) Huta Laziska S.A., a large Community producer, cut back production very substantially owing to a serious dispute with its energy supplier; and (iii) Vargön Alloys AB, another Community ferro-silicon producer, cut back production owing to high energy costs.

129 Secondly, the applicants add that, even if it were true that the displacement of third country ferro-silicon does not explain a decrease in the market share of the Community industry, its unused capacity or price undercutting, that in itself does not mean that the dumped imports are a material cause of that poor performance. Accordingly, the increase in imports from Venezuela and Iceland is in large part responsible for the Community industry’s fall in production, in the same way as the voluntary measures taken by the Community producers because of disputes with electricity suppliers and increasing production costs.

130 In the second place, the applicants maintain – in the reply – on the basis of Article 48(2) of the Rules of Procedure, that the Council made a manifest error of assessment in determining the magnitude and cause of the voluntary production cuts made by the Community industry. In particular, the Council’s statements that Huta Laziska switched to the production of silico-manganese owing to electricity cuts and ceased production of ferro-silicon is inconsistent with the data in the file submitted by the applicants and by the complainant; the Council’s statement that OFZ did not switch production to silico-manganese contradicts statements made by the complainant as well as OFZ’s financial statements; the Council’s statement that Vargön Alloys did not have the technological capability to switch production to ferro-chrome is incorrect, as that company’s financial statements show; those same financial statements enabled the applicants to claim that Vargön Alloys had decided to cease production owing to electricity cuts.

131 In the third place, the applicants state – again in the reply – that the fact that the Council’s allegations concerning Huta Laziska and OFZ, referred to in paragraph 130 above, appear for the first time in the defence constitutes an infringement of their rights of defence.

132 In the fourth place, the applicants claim that the Council failed in the duty to exercise due care, as contemplated inter alia in the judgment in Case T‑413/03 Shandong Reipu Biochemicals v Council [2006] ECR II‑2243 (paragraph 49), and in the obligation to state reasons. Accordingly, in the definitive disclosure document, the Council conceded – in reply to the applicants’ arguments, as set out in paragraph 128 above – that the imports at issue may have replaced third country imports. However, when assessing the existence of a causal link, the Council stated that the increase in dumped imports ‘also coincided with a considerable decline in the sales volumes of the Community industry (-37%) and a significant loss in market share (-11%) which indeed points towards a strong causation link between the dumped imports and the injury suffered by the Community industry’. That reasoning, however, is only a reiteration of the finding already made at the provisional regulation stage and does not answer the arguments raised by the applicants, which, according to the applicants, shows that the Council neither analysed those arguments with due care nor provided adequate reasoning.

133 The Council, supported by the Commission, disputes the applicants’ arguments.

Findings of the Court

– The complaint relating to market shares vacated by third country producers and Community producers

134 In essence, the applicants claim that the institutions made a manifest error of assessment and infringed Article 3(6) of the basic regulation by failing to acknowledge that the dumped imports had taken over the market shares previously vacated by third country producers and Community producers.

135 In that regard, it should be noted that Article 3(6) of the basic regulation provides that it must be shown that the volume and/or prices of dumped imports have had an impact on the Community industry.

136 In addition, it is settled law that the question whether the Community industry has suffered injury and, if so, whether that injury is attributable to dumped imports and whether other known factors contributed to the injury to the Community industry involves the assessment of complex economic matters in respect of which the institutions enjoy a wide discretion. Consequently, review by the Courts of the European Union of the assessments made by the institutions must be confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested measure is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers (see, to that effect, Case T‑107/04 Aluminium Silicon Mill Products v Council [2007] ECR II‑669, paragraph 71, and Case T‑462/04 HEG and Graphite India v Council [2008] ECR II‑3685, paragraph 120).

137 In the light of the above considerations, it should be noted that, in recitals 112 to 114 to the provisional regulation, the Commission set out clearly and precisely the reasons why it considered that the dumped imports had had a significant negative impact on the state of the Community industry.

138 It set out, first, in recital 112 to the provisional regulation, the facts on which it had based its finding: the volume of dumped imports increased significantly during the period under consideration and the corresponding market share of the Community market also increased; although the average price of those imports increased during the period under consideration, they remained significantly lower than those of the Community industry during the same period; during the investigation period, the average price of the dumped imports undercut the prices of the Community industry by 3.7% to 11%, depending on the exporting producer, with the exception of three cooperating exporting producers for which no undercutting was found, and prices of the Community industry were depressed.

139 In recital 113 to the provisional regulation, the Commission went on to analyse those facts. In that regard, it stated that the increase in the volume of imports at low prices and the gain in market shares over the period under consideration coincided with the deterioration of the situation of the Community industry. Moreover, according to the Commission, the Community industry was not able to increase its prices up to the necessary level to cover its full costs, as its sales prices were undercut during the investigation period by the dumped imports.

140 That analysis was confirmed by the Council in recitals 85 and 86 to the contested regulation.

141 The applicants challenge that analysis. They maintain that the dumped imports could not have caused the injury, since those imports had merely taken over the market shares previously vacated by the Norwegian, Icelandic and Venezuelan exporting producers and by three Community producers of ferro-silicon, OFZ, Huta Laziska and Vargön Alloys, which had reduced or switched production.

142 However, the applicants’ assertion is unconvincing on two counts.

143 First, it is not supported by sufficient evidence. Thus, the applicants refer inter alia to their comments on the provisional disclosure document, in the context of which they claim to have produced evidence to show both that the increase in the volume of dumped imports was in great part due to the ‘void’ left on the Community market as a result of the withdrawal of producers from Norway, Iceland and Venezuela, and the inability of the Community ferro-silicon producers to satisfy the subsequent demand from Community users, and that the remaining increase in the volume of dumped imports could be explained by the decisions of OFZ, Huta Laziska and Vargön Alloys to decrease or switch production.

144 It should be noted that the applicants produced evidence that imports from Norway decreased in 2005 and during the investigation period. They also produced a table showing that imports from Iceland and Venezuela decreased in 2005, but increased in 2006. Similarly, they produced evidence that OFZ, Huta Laziska and Vargön Alloys decreased or switched production and that, in the case of Huta Laziska, the decrease was due to a dispute with its electricity supplier.

145 Apart from the case of Huta Laziska, it must be held that the applicants provide no evidence to show that the decrease in imports from Norway, Iceland and Venezuela and the decrease in Community production were not caused by dumped imports.

146 Moreover, the applicants have shown no exact, precise correspondence between the increase in the volume of dumped imports and the volume vacated by the Norwegian, Icelandic and Venezuelan exporting producers and by OFZ, Huta Laziska and Vargön Alloys.

147 Secondly, the applicants give only a fragmentary and one-sided presentation of the facts and fail to mention the evolution of a number of significant economic factors.

148 First of all, the applicants fail to take into account the influence of price. It should be noted that, as the Council observed, the trend in the volume of imports must be assessed in conjunction with the prices of dumped imports, a comparison being made of those prices both with the prices of imports from third countries and with prices charged by the Community industry. In the present case, the prices of imports from third countries, the withdrawal of which created a ‘void’ on the market, were higher than those of dumped imports. Moreover, the prices of the Community industry were undercut as a result of those imports.

149 Also, the applicants fail to take into account the fact that the market share of the Community industry decreased. If dumped imports had merely occupied the market shares vacated by exporting producers established in other third countries, the market share of the Community industry would have remained stable. The applicants should therefore have shown that the market share lost by the Community industry during the period under consideration corresponded to the decreases in production of OFZ, Huta Laziska and Vargön Alloys, which they did not do.

150 Lastly, the applicants failed to mention the fact that the Community producers had unused production capacity. The applicants claim that the Community producers voluntarily decided not to use that capacity, but provide no evidence of this.

151 Accordingly, it must be held that none of the arguments put forward by the applicants demonstrates that the analysis made by the institutions, set out in recitals 112 to 114 to the provisional regulation and confirmed in recitals 85 and 86 to the contested regulation, is flawed by a manifest error of assessment and infringes Article 3(6) of the basic regulation.

152 It follows that this complaint must be rejected as unfounded.

– The complaint relating to the magnitude and cause of voluntary production cuts made by the Community industry

153 The applicants maintain, in essence, that the explanations provided by the Council, in the defence, concerning the assessment of the magnitude and cause of the production cuts and switches made by OFZ, Huta Laziska and Vargön Alloys, constitute a manifest error of assessment which they were not able to invoke in the application.

154 It should be observed that the object of that complaint is the same as that of the preceding complaint, namely to establish a manifest error of assessment and infringement of Article 3(6) of the basic regulation, since it is alleged that the institutions carried out an incorrect assessment of the impact of the volume of the dumped imports on the Community industry and, in particular, that they failed to take into account the fact that OFZ, Huta Laziska and Vargön Alloys had voluntarily decreased and switched production.

155 Accordingly, since the preceding complaint was rejected as unfounded, the present complaint must be rejected on the same grounds.

– The complaint alleging infringement of the applicants’ rights of defence

156 The applicants claim, in essence, that the explanations provided by the Council, in the defence, concerning the magnitude and cause of the production cuts and switches by OFZ, Huta Laziska and Vargön Alloys appeared for the first time in that document, which constitutes an infringement of their rights of defence.

157 This complaint must be assessed in the light of the case-law set out in paragraphs 52 and 98 above. According to that case-law, an infringement of the rights of defence comes about only if, owing to an irregularity committed by the institutions, the applicants were not in a position, during the administrative procedure, effectively to make known their views.

158 In the present case, it should be observed that the applicants did have an opportunity during the anti-dumping proceeding effectively to make known their views. Thus, their comments on the provisional disclosure document and those on the definitive disclosure document contain considerable argument focussing on the fact that Community producers voluntarily reduced their production.

159 Moreover, in the definitive disclosure document, the institutions responded to the evidence provided by the applicants in their comments on the provisional disclosure document. No irregularity was therefore committed by the institutions which, in the defence, merely respond to the evidence provided by the applicants in the application.

160 This complaint must therefore be rejected as unfounded.

– The complaint alleging breach of the duty to exercise due care and of the obligation to state reasons

161 In essence, the applicants state that the Council failed to fulfil its duty to exercise due care and acted in breach of the obligation to state reasons, since the reasoning in the definitive disclosure document regarding the impact of dumped imports on the Community industry is no more than a reiteration of the finding already made at the provisional regulation stage and does not answer the arguments put forward by the applicants in their comments on the provisional disclosure document.

162 In that regard, it should be noted that applicants cannot rely on failure to fulfil the duty to exercise due care and breach of the obligation to state reasons when they are in reality challenging the soundness of the finding made by the institutions. The fact that the applicants consider the explanations provided by the institutions to be unsatisfactory by no means shows that those inst