Case T-35/01

Shanghai Teraoka Electronic Co. Ltd

v

Council of the European Union

(Dumping – Imposition of definitive anti-dumping duties – Electronic weighing scales originating in China – Undertaking with market economy status – Determination of injury – Causal link – Rights of the defence)

Judgment of the Court of First Instance (Fourth Chamber, Extended Composition), 28 October 2004

Summary of the Judgment

1. Common commercial policy — Protection against dumping — Individual treatment of exporters of a country without a market economy — Conditions — Institutions’ power of assessment — Judicial review — Limits

(Council Regulation No 384/96)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from countries without a market economy as referred to in Article 2(7)(b) of Regulation No 384/96 — Application of the rules for countries with a market economy — Application reserved for producers satisfying the cumulative conditions laid down in Article 2(7)(c) of Regulation No 384/96 — Burden of proof on producers

(Council Regulations Nos 384/96, Art. 2(7) and 905/98)

3. Common commercial policy — Protection against dumping — Injury — Assessment of injury indicators through a segment-by-segment analysis of the market for the product in question — Conditions

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

4. Community law — Interpretation — Methods — Interpretation having regard to international agreements concluded by the Community — Interpretation of Regulation No 384/96 having regard to the GATT Anti-dumping code of 1994

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, ‘Anti-dumping code of 1994’; Council Regulation No 384/96)

5. Common commercial policy — Protection against dumping — Injury — Expression ‘dumped imports’ — Account to be taken of all imports from a given country identified as one in respect of which dumping practices are known to occur — Limits

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

6. Common commercial policy — Protection against dumping — Injury — Difference between preliminary and final figures adopted in order to determine the injury — Permissible

(Council Regulation No 384/96)

7. Common commercial policy — Protection against dumping — Injury — Importation — Obligation to compare the dumping margin and undercutting margin of the imported products with dumping prices — None

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

8. Common commercial policy — Protection against dumping — Meaning of ‘Community industry’ — Scope

(Council Regulation No 384/96, Art. 4(1))

9. Common commercial policy — Protection against dumping — Injury — Period to be taken into consideration — Institutions’ power of assessment

(Council Regulation No 384/96)

10. Community law — Principles — Rights of the defence — Respect in the context of administrative procedures — Antidumping — Obligation of the institutions to ensure that the parties concerned are informed — Scope — Means of communication — Non-compliance with 10-day time-limit — Relevance — Conditions

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

11. Common commercial policy — Protection against dumping — Conduct of the procedure — Duration of more than one year — Admissibility — Condition — Compliance with 15-month deadline

(Council Regulation No 384/96, Art. 6(9))

1. In the sphere of measures to protect trade, the Community institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine.

It follows that review by the Community judicature of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power. The same applies to factual situations of a legal and political nature in the country concerned which the Community institutions must assess in order to determine whether an exporter operates in market conditions without significant State interference and can, accordingly, be granted market economy status.

(see paras 48-49)

2. It is clear from Article 2(7) of the basic anti-dumping Regulation No 384/96 and from the preamble to Regulation No 905/98, which amended it, first, that the Community institutions are under an obligation in cases of imports from China to conduct their examination on a case-by-case basis, as that country cannot yet be regarded as a market economy country. The normal value of a product originating in China can therefore be determined in accordance with rules applicable to market economy countries only if it is shown that market economy conditions prevail for the producer or producers concerned.

Secondly, it is apparent from that provision that the burden of proof lies with the exporting producer wishing to avail himself of market economy status. Accordingly, there is no obligation on the Community institutions to prove that the exporting producer does not satisfy the criteria laid down for the recognition of such status. On the contrary, it is for the Community institutions to assess whether the evidence supplied by the exporting producer is sufficient to show that the criteria laid down in Article 2(7)(c) of the basic regulation are fulfilled and for the Community judicature to examine whether the institutions’ assessment is vitiated by a manifest error.

It follows, finally, that the criteria laid down in Article 2(7)(c) are cumulative, so that the producer concerned must fulfil all of them in order to be granted market economy status.

(see paras 52-54)

3. Concerning the determination of injury which is carried out under Article 3 of the basic anti-dumping Regulation No 384/96, it is not apparent from Article 3(8) of that regulation that an assessment of the product in question by segment may not be carried out and that the average calculation method must be used. The Community institutions may therefore make an assessment on a segment-by-segment basis of the market for the product in question in order to evaluate the various injury indicators, particularly if the results obtained using another method prove to be distorted for one reason or another, provided that account is properly taken of the relevant product as a whole.

In that regard, as a result of a phenomenon familiar to statisticians, where a product comprises different categories, the calculation of the overall price trend (on the basis of the trend in volume and sales value) is distorted if the prices and trends in sales volume differ appreciably from category to category. In such a case, the Commission may be permitted to calculate the price trend for each category of products.

(see paras 127, 196)

4. Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community, as is the case with the basic anti-dumping Regulation No 384/96, which was adopted in order to fulfil the international obligations arising from the 1994 Anti-dumping Code.

(see para. 138)

5. The expression ‘dumped imports’ contained in Article 3 of the basic anti-dumping Regulation No 384/96 covers the sum of all the dumping transactions. However, since it is impossible to examine all of the individual transactions, account must, for the purposes of analysing injury, be taken of all imports by any exporting producer in respect of whom it has been established that he engages in dumping practices. By contrast, imports by an exporting producer in respect of whom a zero or de minimis margin of dumping has been established may not be regarded as ‘dumped’ for the purposes of the injury assessment.

Article 3(4) of that regulation must be interpreted as permitting account to be taken of imports from a given country only in so far as they come from an exporting producer in respect of whom it has been established that he is engaging in dumping. Consequently, imports from a country in respect of which a margin of dumping greater than de minimis has been established may be taken into account in their entirety only where there is no exporting producer in that country in respect of whom a zero or de minimis margin of dumping has been established.

Therefore, in the light of the object and purpose of Article 3 of the basic regulation, the term ‘dumped imports’ does not cover imports by an exporting producer who does not engage in dumping, even if that exporter is established in a country in respect of which a margin of dumping greater than de minimis has been identified.

(see paras 158-162)

6. As for the possible difference between preliminary figures and those finally adopted in order to characterise the injury resulting from dumping practices, an anti-dumping investigation is in reality an ongoing process during which many findings are constantly revised. It cannot therefore be ruled out that the definitive findings made by the Community institutions will differ from the findings made at any other stage of the investigation. Moreover, the preliminary figures may, by definition, be amended during the investigation. Consequently, an undertaking cannot argue that an inconsistency between the preliminary and the definitive figures concerning the injury illustrates in any way whatsoever a lack of objectivity and reliability of the figures in question. Finally, it is important to note that injury must be determined in relation to the time when any measure imposing protective measures was adopted.

(see para. 182)

7. In relation to determination of the injury caused to a Community industry, there is nothing in the basic anti-dumping Regulation No 384/96 that requires a comparison to be made between the dumping margins and the undercutting margins of dumped products in relation to similar Community products and the conclusion to be drawn from that comparison, where it shows that the dumping margin is lower than the undercutting margin, that the injury suffered by the Community industry is caused not by dumping but by other factors such as natural cost advantages enjoyed by the exporters.

(see para. 219)

8. According to Article 4(1) of the basic anti-dumping Regulation No 384/96, the term ‘Community industry’ refers to all Community producers of like products or to those of them whose collective output of the products constitutes a major proportion of the total Community production of those products. That term does not therefore cover only Community producers who participated in the investigation.

(see para. 257)

9. The Community institutions have wide discretion in determining what period is to be considered for the purpose of determining injury in anti-dumping proceedings.

(see para. 277)

10. The principle of respect for the rights of the defence is a fundamental principle of Community law. In accordance with that principle, the requirements of which are reflected in Article 20 of the basic anti-dumping Regulation No 384/96, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the injury suffered by the Community industry as a result.

Concerning the final disclosure, required by Article 20(4) of the basic regulation, of the essential facts and considerations on the basis of which the Commission intends to recommend to the Council that definitive measures be adopted, incompleteness of such disclosure renders the regulation imposing definitive anti-dumping duties unlawful only if, as a result of that omission, the undertakings concerned by the administrative procedure were not in a position to defend their interests effectively.

Similarly, failure to set out certain factors in the disclosure document is not a breach of undertakings’ rights of defence where it has been established that they became aware of that evidence on another occasion, at a time when it was still possible for them effectively to make known their point of view in that respect before the Commission adopted its proposal for the adoption of the contested regulation.

Finally, even if those undertakings must be given at least 10 days within which to lodge any representations with respect to the information which was not contained in the disclosure document sent to them, and that period has not been observed, that fact cannot, in itself, lead to annulment of the contested regulation. It is also necessary to establish whether the Community institutions’ failure to grant the undertakings the period prescribed by Article 20(5) of the basic regulation within which to submit any comments they might have on the additional information sent at their request has actually been capable of affecting their rights of defence in the procedure in question.

(see paras 287-290, 292, 330-331)

11. Article 6(9) of the basic anti-dumping Regulation No 384/96 lays down a guideline period of one year and a compulsory period of 15 months. The fact that provision is made for these two periods means that, if the Community institutions have failed to conclude the investigation within the guideline period of one year, it is sufficient for observance of the procedural rules laid down in the basic regulation that they conclude it within the compulsory period of 15 months and there is no need to examine whether a duration of more than the guideline period but less than the compulsory period is reasonable in the light of the facts of the case.

(see para. 348)

JUDGMENT OF 28. 10. 2004 – CASE T-35/01

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)

28 October 2004 ( )

(Dumping – Imposition of definitive anti-dumping duties – Electronic weighing scales originating in China – Undertaking with market economy status – Determination of injury – Causal link – Rights of the defence)

In Case T-35/01,

Shanghai Teraoka Electronic Co. Ltd, established in Shanghai (China), represented by P. Waer, lawyer,

applicant,

v

Council of the European Union, represented by S. Marquardt, acting as Agent, assisted initially by G. Berrisch and P. Nehl and subsequently by G. Berrisch, lawyers,

defendant,

supported by

Commission of the European Communities, represented by V. Kreuschitz, S. Meany and T. Scharf, acting as Agents, with an address for service in Luxembourg,

intervener,

ACTION for annulment of Article 1 of Council Regulation (EC) No 2605/2000 of 27 November 2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales originating in China, South Korea and Taiwan (OJ 2000 L 301, p. 42),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

composed of: V. Tiili, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 6 March 2003,

gives the following

Judgment

Legal background

1 Article 1(4) of 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, ‘the basic regulation’) provides:

‘For the purpose of [the basic regulation], the term “like product” shall be interpreted to mean a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which although not alike in all respects, has characteristics closely resembling those of the product under consideration.’

2 Article 2(7) of the basic regulation, as amended by Council Regulation (EC) No 905/98 of 27 April 1998 (OJ 1998 L 128, p. 18), provides:

‘(a) In the case of imports from non-market economy countries …, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Community, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin.

An appropriate market economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits; where appropriate, a market economy third country which is subject to the same investigation shall be used.

The parties to the investigation shall be informed shortly after its initiation of the market economy third country envisaged and shall be given 10 days to comment.

(b) In anti-dumping investigations concerning imports from [Russia] and … China, normal value will be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c) that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.

(c) A claim under subparagraph (b) must be made in writing and contain sufficient evidence that the producer operates under market economy conditions, that is if:

– decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values,

– firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes,

– the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts,

– the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and

– exchange rate conversions are carried out at the market rate.

A determination whether the producer meets the abovementioned criteria shall be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment. This determination shall remain in force throughout the investigation.’

3 Article 3 of the basic regulation provides:

‘Determination of injury

1. Pursuant to [the basic] regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2. A determination of injury shall be based on positive evidence and shall involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and (b) the consequent impact of those imports on the Community industry.

3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Community. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Community industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of these factors can necessarily give decisive guidance.

4. Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports shall be cumulatively assessed only if it is determined that (a) the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and that the volume of imports from each country is not negligible; and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Community product.

5. The examination of the impact of the dumped imports on the Community industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity; factors affecting Community prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of [the basic] regulation. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Community industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material.

7. Known factors other than the dumped imports which at the same time are injuring the Community industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and Community producers, developments in technology and the export performance and productivity of the Community industry.

8. The effect of the dumped imports shall be assessed in relation to the production of the Community industry of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers’ sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be assessed by examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.

9. A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent.

In making a determination regarding the existence of a threat of material injury, consideration should be given to such factors as:

(a) a significant rate of increase of dumped imports into the Community market indicating the likelihood of substantially increased imports;

(b) sufficient freely disposable capacity of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Community, account being taken of the availability of other export markets to absorb any additional exports;

(c) whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports; and

(d) inventories of the product being investigated.

No one of the factors listed above by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury will occur.’

4 Under Article 6(9) of the basic regulation:

‘For proceedings initiated pursuant to Article 5(9), an investigation shall, whenever possible, be concluded within one year. In any event, such investigations shall in all cases be concluded within 15 months of initiation, in accordance with the findings made pursuant to Article 8 for undertakings or the findings made pursuant to Article 9 for definitive action.’

5 Finally, Article 20 of the basic regulation states:

‘…

2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.

3. Requests for final disclosure, as defined in paragraph 2, shall be addressed to the Commission in writing and be received, in cases where a provisional duty has been applied, not later than one month after publication of the imposition of that duty. Where a provisional duty has not been applied, parties shall be provided with an opportunity to request final disclosure within time-limits set by the Commission.

4. Final disclosure shall be given in writing. It shall be made, due regard being had to the protection of confidential information, as soon as possible and, normally, not later than one month prior to a definitive decision or the submission by the Commission of any proposal for final action pursuant to Article 9. Where the Commission is not in a position to disclose certain facts or considerations at that time, these shall be disclosed as soon as possible thereafter. Disclosure shall not prejudice any subsequent decision which may be taken by the Commission or the Council but where such decision is based on any different facts and considerations, these shall be disclosed as soon as possible.

5. Representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter.’

Facts

6 Following a complaint lodged on 30 July 1999 by European Community producers of electronic weighing scales accounting for the majority of the total Community production of that product, the Commission, by a notice published on 16 September 1999 (OJ 1999 C 262, p. 8), initiated an anti-dumping proceeding pursuant to Article 5 of the basic regulation in respect of imports of certain electronic weighing scales originating in China, South Korea and Taiwan.

7 Two Community producers of electronic weighing scales, Avery Berkel Ltd and Bizerba GmbH, which together accounted for 39% of the Community production at that time, cooperated in the Commission’s investigation.

8 At the same time, eight exporting producers in the countries concerned, including the applicant company, four importers whose activity was related to the production in question and the cooperating producer in the analogue country, namely Indonesia, replied to the questionnaires sent by the Commission.

9 The investigation into the dumping and the injury arising therefrom covered the period from 1 September 1998 to 31 August 1999 (‘the investigation period’). The examination of trends relevant for the purpose of determining injury covered the period from 1 January 1995 to the end of the investigation period (‘the analysis period’).

10 Shanghai Teraoka Electronic Co. Ltd (‘the applicant’ or ‘Shanghai Teraoka’) is a company incorporated under Chinese law in 1992 which is wholly owned by foreign investors and which produces electronic weighing scales and exports them, in particular to the Community.

11 On 11 October 1999, the applicant asked the Commission to recognise, for the purposes of the investigation, that it had the status of an undertaking operating in a market economy (‘market economy status’) under Article 2(7) of the basic regulation. By fax of 17 December 1999, the Commission informed the applicant that it did not satisfy the requirements laid down in Article 2(7)(c) of the basic regulation for recognition as an undertaking with market economy status.

12 In response to the rejection of its claim, the applicant submitted observations to the Commission by two letters dated 27 December 1999 and 11 January 2000 respectively.

13 On 4 January and 3 February 2000, the Commission confirmed its refusal to grant the applicant market economy status.

14 On 10 and 14 April 2000, following a meeting held on 6 April 2000 between the Commission and representatives of the Community industry concerned, two Community producers submitted to the Commission their observations on the latter’s preliminary findings as to whether there was any injury to the Community industry.

15 On 1 August 2000, the applicant sent the Commission observations on the issues of injury and causality.

16 By fax of 21 September 2000, the Commission informed the applicant of the essential facts and considerations forming the basis for its intention to recommend the imposition of a definitive anti-dumping duty of 13.1% on imports of certain electronic weighing scales produced by the applicant.

17 By fax of 29 September 2000, the applicant requested further information on the existence of dumping and the determination of the injury alleged to arise from it.

18 The Commission responded to that request by two letters dated 29 September and 4 October 2000 respectively.

19 By fax of 4 October 2000, the applicant requested an extension of the deadline for the submission of its observations. By fax of 5 October 2000, the Commission refused that request, on the ground of urgency.

20 On 10 October 2000, the applicant submitted its observations on the information received by it.

21 By fax of 11 October 2000, the Commission replied to the applicant’s observations and reduced the margin of dumping from 13.1 to 12.8%.

22 By fax of 23 October 2000, the Commission gave further replies to the applicant’s observations.

23 By Council Regulation (EC) No 2605/2000 of 27 November 2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales originating in China, South Korea and Taiwan (OJ 2000 L 301, p. 42, ‘the contested regulation’), the Council imposed anti-dumping duties of 12.8% on the products exported by the applicant, which are defined below. Under Article 1 of the contested regulation:

‘1. A definitive anti-dumping duty is hereby imposed on imports of electronic weighing scales having a maximum weighing capacity not exceeding 30 kg, for use in the retail trade which incorporate a digital display of the weight, unit price and price to be paid (whether or not including a means of printing this data) currently classifiable within CN code ex 84238150 (TARIC code 8423 81 50 10) and originating in … China, [South] Korea and Taiwan.

2. The duty, calculated on the basis of the net free-at-Community-frontier price of the product, before duty, shall be [in respect of the applicant]: … 12.8% …’

Procedure and forms of order sought

24 By application lodged at the Registry of the Court of First Instance on 16 February 2001, the applicant brought the present action.

25 By a document lodged at the Registry of the Court on 12 June 2001, the Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the defendant. By order of 11 September 2001, the President of the Fourth Chamber, Extended Composition, of the Court of First Instance granted leave to intervene.

26 The Commission having waived the right to submit a statement in intervention, the written procedure was closed on 28 November 2001.

27 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber, Extended Composition) decided to open the oral procedure.

28 As a measure of organisation of the procedure, the Court asked the parties to answer written questions and to produce certain documents. The parties complied with those requests in part.

29 The main parties to the proceedings and the intervener presented oral arguments and replied to the Court’s questions at the hearing on 6 March 2003.

30 The applicant claims that the Court should:

– annul Article 1 of the contested regulation in so far as it imposes a definitive anti-dumping duty on its exports of electronic weighing scales;

– order the Council to pay the costs.

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

– dismiss the action;

– order the applicant to pay the costs.

Substance

32 The applicant raises, essentially, four pleas in support its action. The first plea alleges a manifest error of assessment in the application of Article 2(7) of the basic regulation. The second plea alleges infringement of Article 3(2), (3), (5) and (8) of the basic regulation and a manifest error of assessment in the determination of injury. The third plea alleges infringement of Article 3(6) of the basic regulation. Finally, the fourth plea alleges infringement of the procedural rules laid down in the basic regulation.

A – The first plea: manifest error of assessment in the application of Article 2(7) of the basic regulation

1. Introduction

33 According to the applicant, the Community institutions were wrong to find that it does not satisfy the requirements laid down in Article 2(7)(c) of the basic regulation for the grant of market economy status. It claims to have submitted sufficient evidence that it was entitled to be granted such status.

34 The Council justified its refusal to grant market economy status by stating, in the 46th recital in the contested regulation:

‘The Commission found that [two] companies [including the applicant] were selling at more or less uniform, loss-making prices in [China] for several years. Furthermore, both companies were not fully free to decide whether and to what extent they should sell their production on the domestic market. It has been the Commission’s practice to reject … claims [for market economy status] when domestic sales are restricted and where there [are] no price variations between customers as such similar pricing may result from centrally imposed price controls. Moreover, the evidence indicated that these prices were at loss-making levels for several years which also indicates that the producers did not operate under market economy conditions.’

35 The Council therefore concluded, in the 47th recital in the contested regulation, that ‘the conditions set out in Article 2(7)(c) of the basic regulation were not met’ by the applicant.

36 For its part, the Commission – as the Court observed in paragraphs 11 and 13 above – had rejected the applicant’s claim for market economy status by fax of 17 December 1999 and confirmed that rejection by faxes of 4 January and 3 February 2000. Having set out the results of the investigation, the Commission based its assessment on the following three considerations. First, the applicant had complied with the Chinese pricing law of 29 December 1997 (‘the Pricing Law’), under which it was obliged to sell its products at more or less uniform loss-making prices on the Chinese domestic market. Secondly, the applicant was not entirely free to decide whether and to what extent to sell its products on the domestic Chinese market or on foreign markets. Finally, the applicant had provided the Commission with misleading information or failed to send it relevant documents and, as a result, impeded the investigation.

37 By the present plea, the applicant contests, first, the interpretation given by the Commission, and subsequently by the Council, to Article 2(7) of the basic regulation.

38 Secondly, it challenges the findings, of the Commission and of the Council which led them to take the view that the criteria laid down in Article 2(7) of the basic regulation were not fulfilled. In particular, the applicant challenges the findings, made by the Commission in the part of its fax of 17 December 1999 entitled ‘Results of the Investigation’, that the applicant is under no obligation to make provision for bad debts on the liabilities side of its balance sheet, that a limit equal to the level of its capital is imposed on its foreign-currency account, that sales at a loss were systematically made on the Chinese domestic market, that the applicant is prohibited under the Pricing Law from charging different prices to similar customers in China, that there are restrictions on the freedom to sell on the Chinese domestic market and that the applicant submitted inaccurate information to the Commission during the investigation.

39 The Court rejects already at this stage the arguments of the applicant relating to the first two factors mentioned in the preceding paragraph. Since neither the Council nor the Commission based their findings on those factors, the arguments relating to them are irrelevant.

40 Thirdly, the applicant claims that the Community institutions failed to supply it with the documents on the basis of which they subsequently refused to grant it market economy status. That complaint must likewise be rejected because the Community institutions based their assessment of that question on the documents which the applicant had itself sent to the Commission in its reply to Part D of the investigation questionnaire and on the documents which the Commission inspected during the verification visit to the applicant’s premises.

41 Moreover, the applicant has failed to explain what it means by ‘new information’ and has merely referred to the information in its own documents. It thus acknowledged in its reply that ‘all invoices for all single … transactions [on the Chinese domestic market] were available during the verification visit as well as all other accounting and cost of production information’. Accordingly, the Community institutions were under no obligation to send Shanghai Teraoka the documents in question after having drawn conclusions from them, given that the applicant supplied those documents and was therefore familiar with all of them.

42 It should be added that the new argument put forward by the applicant in its reply in support of its allegation of infringement of Article 20(4) of the basic regulation, namely that during the proceedings before the Court the Council produced information which had not been disclosed to the applicant during the administrative procedure, is irrelevant. That argument reveals a confusion between the procedure for the grant of market economy status and the procedure for the imposition of definitive anti-dumping measures. Since Article 20(4) of the basic regulation, which governs the latter procedure, has no bearing on the grant of market economy status, a failure to comply with it cannot be properly relied on by the applicant with respect to documents which were used specifically for the purpose of obtaining such status.

2. Scheme of Article 2(7) of the basic regulation

a) Arguments of the parties

43 The applicant challenges the interpretation given by the Community institutions to Article 2(7) of the basic regulation, in particular as regards the burden of proof. It argues that the Council disregarded the ratio legis of the amendment to Article 2(7), namely the desire to take account of the fundamental change in the economic structure of China.

44 Moreover, the applicant relies on paragraph 112 of the Court’s judgment in Case T‑80/97 Starway v Council [2000] ECR II‑3099, from which it is clear that requiring an exporter to provide proof which is not available to him is an infringement of the principles of legal certainty and of respect for the rights of the defence.

45 Finally, the applicant takes the view that, where the Community institutions rely on certain facts, they must prove that those facts are accurate and that they have been properly established. In this connection, the applicant relies on paragraph 52 of the judgment in Case C‑381/99 Brunnhofer [2001] ECR I‑4961.

46 The Council contends that the applicant’s reasoning is based on a misinterpretation of Article 2(7) of the basic regulation. It is apparent from, in particular, the preamble to Regulation No 905/98 that Article 2(7) establishes a simple presumption that the characteristic conditions of a market economy are lacking in China and Russia and that it is therefore for the exporting producer – in the present case, the applicant – to prove the contrary. In the Council’s view, the argument put forward by the applicant is based on a reversal of the burden of proof. Moreover, the Community institutions have wide discretion in this matter, as is clear from the case-law (Case T‑118/96 Thai Bicycle v Council [1998] ECR II‑2991, paragraph 32) and from the words ‘properly substantiated claim’ and ‘sufficient evidence’ used in Article 2(7)(b) and (c) of the basic regulation.

47 Finally, the Council submits that, in principle, the five criteria laid down in Article 2(7) are cumulative. However, it stresses that those criteria are not all of equal importance. The first criterion, namely that the decisions of firms regarding prices, costs and inputs must be made in response to market signals reflecting supply and demand, and without significant State interference, is of major importance. The finding that the applicant had failed to satisfy that requirement was therefore by itself a sufficient basis for the rejection of its claim for the grant of market economy status.

b) Findings of the Court

48 First of all, it should be observed that, in the sphere of measures to protect trade, the Community institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine (Case T‑162/94 NMB France and Others v Commission [1996] ECR II-427, paragraph 72; Case T-97/95 Sinochem v Council [1998] ECR II-85, paragraph 51; Thai Bicycle, cited in paragraph 46 above, paragraph 32; and Case T‑340/99 Arne Mathisen v Council [2002] ECR II‑2905, paragraph 53).

49 It follows that review by the Community judicature of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power (Case 240/84 Toyo v Council [1987] ECR 1809, paragraph 19; Thai Bicycle, cited in paragraph 46 above, paragraph 33; and Arne Mathisen, cited in paragraph 48 above, paragraph 54). The same applies to factual situations of a legal and political nature in the country concerned which the Community institutions must assess in order to determine whether an exporter operates in market conditions without significant State interference and can, accordingly, be granted market economy status (see, to that effect, Case T‑155/94 Climax Paper v Council [1996] ECR II‑873, paragraph 98).

50 Moreover, the method of determining the normal value of a product set out in Article 2(7)(b) of the basic regulation is an exception to the specific rule laid down for that purpose in Article 2(7)(a), which is, in principle, applicable to imports from non-market economy countries. It is settled case-law that any derogation from or exception to a general rule must be interpreted strictly (Case C-399/93 Oude Luttikhuis and Others [1995] ECR I-4515, paragraph 23; Case C‑83/99 Commission v Spain [2001] ECR I-445, paragraph 19; and Case C‑5/01 Belgium v Commission [2002] ECR I-11991, paragraph 56).

51 The original wording of Article 2(7) of the basic regulation was amended by Regulation No 905/98 because the Council took the view that the process of reform in Russia and China had fundamentally altered their economies and led to the emergence of undertakings for which market economy conditions prevail. Thus, in the fifth recital in Regulation No 905/98, the Council stresses the importance of revising the anti-dumping practice followed with regard to those countries and states that the normal value of a product may be determined in accordance with the rules applicable to countries with a market economy where it can be shown that market conditions prevail for one or more producers subject to an investigation into the manufacture and sale of the product concerned. According to the sixth recital, ‘an examination of whether market conditions prevail will be carried out on the basis of properly substantiated claims by one or more producers subject to investigation who wish to avail themselves of the possibility to have [the] normal value [of the relevant product] determined on the basis of rules applicable to market economy countries’.

52 It is therefore clear from Article 2(7) of the basic regulation and from the abovementioned recitals in Regulation No 905/98, first, that the Community institutions are under an obligation in cases such as that at hand to conduct their examination on a case-by-case basis, as China cannot yet be regarded as a market economy country. The normal value of a product originating in China can therefore be determined in accordance with rules applicable to market economy countries only ‘if it is shown … that market economy conditions prevail for this producer or producers’.

53 Secondly, it is apparent from the abovementioned provisions that the burden of proof lies with the exporting producer wishing to avail himself of market economy status. Article 2(7)(c) of the basic regulation provides that the claim ‘must … contain sufficient evidence’. Accordingly, there is no obligation on the Community institutions to prove that the exporting producer does not satisfy the criteria laid down for the recognition of such status. On the contrary, it is for the Community institutions to assess whether the evidence supplied by the exporting producer is sufficient to show that the criteria laid down in Article 2(7)(c) of the basic regulation are fulfilled and for the Community judicature to examine whether the institutions’ assessment is vitiated by a manifest error.

54 In order to assess whether the evidence supplied by the producer concerned is sufficient, the criteria laid down in the first indent of Article 2(7)(c) of the basic regulation must be applied. It follows both from the use of the word ‘and’ between the fourth and fifth indents of that provision and from the very nature of the criteria that they are cumulative. Accordingly, the exporting producer concerned must fulfil all the criteria laid down in Article 2(7)(c) of the basic regulation in order to be granted market economy status and, should it fail to fulfil one of those criteria, its claim must be rejected.

55 Accordingly, it must be examined whether the applicant has demonstrated that it satisfies the first criterion laid down in Article 2(7)(c), namely that the decisions of firms regarding prices, costs and inputs must be made in response to market signals reflecting supply and demand, and without significant State interference.

3. The first criterion laid down in Article 2(7)(c) of the basic regulation

a) Charging of uniform prices

Arguments of the parties

56 The applicant submits that the finding that it sells its products in China at uniform prices is manifestly incorrect. It claims that the Pricing Law does not apply to the market for electronic weighing scales. In any event, the actual wording of the Pricing Law is not that described by the Commission. The applicant also states that the price list on which the Commission relied does not reflect the prices actually charged, which are renegotiated with the dealers. The applicant adds that the fact that the same price is charged to partners at the same commercial level shows that it observes the principle of fair competition, as it is applied within the European Community by means of measures against abuses of a dominant position.

57 The applicant points out that it explained that its prices are determined by supply and demand and that the Chinese market is highly competitive. Moreover, the Community institutions adopted a very incomplete and imprecise approach, particularly inasmuch as they took account of only 13 invoices for sales on the Chinese domestic market. However, sales amounted to 25 701 units during the investigation period. All the invoices for all the individual transactions on the Chinese domestic market, which show that the prices were negotiated by the applicant and its customers, were made available to the Commission’s investigators during the verification visit. The Community institutions failed to take account of the fact that, during those negotiations, no reference was made to government control of prices. Moreover, the applicant claims to have shown in its response to the questionnaire concerning the grant of market economy status that the monthly average sales price charged on the Chinese domestic market varies considerably, which supports its assertion that the prices of individual transactions carried out by it also vary significantly.

58 The Council contends that the applicant has failed to prove that price negotiations actually took place.

Findings of the Court

59 It must be examined whether the applicant furnished sufficient evidence during the investigation to establish that it was free to fix its prices on the Chinese domestic market ‘in response to market signals reflecting supply and demand, and without significant State interference’ as is required by the first indent of Article 2(7)(c) of the basic regulation.

60 Thus, while the investigation was being carried out, the applicant was under an obligation to supply the Commission with evidence of the variation in the prices charged for its individual transactions, for example by means of invoices. The applicant cannot complain that the Community institutions failed to take account of all the invoices (which numbered more than 25 000) for unit sales made during the investigation period. It was for the applicant to select from among the invoices those from which it would have been clear that it did in fact charge different customers different prices for the same model. In addition, when the applicant became aware of the Commission’s conclusion that it sold at uniform prices, it could still, during the administrative procedure, have supplied the Commission with the invoices which it considered to be relevant.

61 Next, it is appropriate to examine whether the applicant satisfied the requirement to produce evidence by virtue of the fact that it supplied the Commission’s investigators with negotiation sheets and national contracts during the verification visit in order to show that price negotiations had taken place with the local Chinese subsidiaries of SA Carrefour (Carrefour). Far from establishing that discounts were granted to that customer, those documents, which were produced by the applicant before the Court, show that the price invoiced and the price appearing on the price list adopted for the Chinese domestic market were exactly the same. Thus, the basic price for the model most frequently purchased by Carrefour was identical to the price specified on the applicant’s price list for the Chinese domestic market. A comparison between the documents produced and the price list for the product concerned applicable to the Chinese domestic market shows that the price for the model in question (namely the electronic weighing scales SM‑80SXB, which form part of the high range) in no way differed from that specified in that price list, that is to say, 6 837.61 yuans ren-min-bi (CNY), given that, whilst the invoices drawn up by Carrefour and produced by the applicant during the investigation refer to a price of CNY 8 000, that price includes the value added tax (VAT) of 17% applied to the price specified on the list. Carrefour’s negotiation sheets refer to a price of CNY 12 000, which is the price specified on the list plus VAT of 17% and an additional service charge of CNY 4 000. The same uniformity can be identified with respect to the price charged for the model SM‑80SXP. Finally, in response to a written question, the Council submitted to the Court an invoice supplied by Carrefour from which it was clear that the price actually charged was equal to the sum of the price specified on the list, VAT of 17% and an additional amount of CNY 4 000, and which is thus evidence of the same approach as that revealed by the examination of the negotiation sheets. Indeed, at the hearing, the applicant confirmed that there was a practice of paying a flat-rate service charge of CNY 4 000.

62 The prices appearing on the invoices, the contracts and the negotiation sheets relating to Carrefour are therefore no different from those specified on the price list. An examination of the negotiation sheets shows that same principle likewise applied to the rates charged by the applicant to Nanjing Supermarket Ltd, another of its customers.

63 Consequently, there is no evidence in the negotiation sheets, the contracts or the invoices produced that the applicant charged its various customers different prices for the same product.

64 That finding is not affected by the fact, relied on by the applicant, that its main customer on the Chinese domestic market, namely Shanghai Teraoka Electronic Scales Co. Ltd, negotiated with it better prices than those charged to its other customers. As the Commission rightly pointed out in its fax of 17 December 1999, it is reasonable to entertain doubts as to the degree of that undertaking’s independence of the applicant. Moreover, the applicant failed in its correspondence with the Commission, its application and its reply to even attempt to dispute that the suggested links exist. In its letter of 27 December 1999, in which it contested the results and findings of the Commission contained in the fax sent on 17 December 1999, it made no comment whatsoever on the argument that Shanghai Teraoka Electronic Scales Co. Ltd was linked to it. The same is true of the letter of 11 January 2000, in which the applicant contested the replies made to its observations by the Commission by letter of 4 January 2000, in which that institution reiterated its concern that there were links tying the applicant to that company. Since the applicant has thus failed to deny that there are links between it and Shanghai Teraoka Electronic Scales Co. Ltd, the Commission was entitled to exclude from its assessment the prices invoiced to that undertaking by the applicant.

65 It must also be examined whether, despite its failure to produce relevant invoices, the applicant nevertheless provided pertinent evidence in its reply in Part D of the Commission’s investigation questionnaire, which concerned the grant of market economy status. In that reply, the applicant submitted to the Commission the following information on its sales: the monthly quantities of the product in question sold on the Chinese domestic market and the monthly average sale price for that product on that market during the investigation period, its total sales figure in terms of volume and for each product, the main products sold by the applicant on the Chinese domestic market during the investigation period, the list of sales prices on the Chinese domestic market for the relevant product, the monthly quantities of export sales of the relevant product and the monthly average price for export sales during the investigation period, the list of export prices for the relevant product and the list of export sales to the Community, drawn up on a monthly basis for the main three months of the investigation period, namely September 1998, January 1999 and March 1999.

66 On the basis of the figures in the table annexed to the application showing the monthly average sales prices of the relevant product on the Chinese domestic market during the period of investigation, the applicant drew up a new table, which was submitted with its reply and shows, as a percentage, the difference between the lowest and highest average prices for each model of electronic weighing scales, in order to demonstrate that it did not charge identical prices. In that connection, it is appropriate to draw up, on the basis of the figures in the applicant’s reply to Part D of the Commission’s investigation questionnaire, which were not disputed by the Community institutions, a table showing the volume and percentage of sales on the Chinese domestic market for each model and, as a percentage, the variation in the sales price during the investigation period. It should be noted that, according to the contested regulation, the market for electronic weighing scales is commonly divided into three distinct segments: a low-range segment, a mid-range segment and a high-range segment.



Model Volume sold on the Chinese domestic market Percentage of sales on the Chinese domestic market

Percentage variation in sales prices on the Chinese domestic market DS-685B 13 693 53.28 2.21 DS-685FB 2 127 8.27 9.72 DS-685FP 26 0.10 15.86 DS-688B 3 455 13.44 11.88 DS-688P 6 0.02 Not available DS-688FB 3 471 13.50 9.54 DS-688FP 88 0.34 13.47 DS-650 361 1.40 8.70 DS-681 189 0.74 68.75 SM-80/81B 151 0.59 71.89 SM-80/81P 1 982 7.71 34.55 SM-90H 18 0.07 21.87 RM-30 134 0.52 47.64

67 This table shows eight models (DS-685FP, DS-688P, DS-688FP, DS‑650, DS‑681, SM-80/81B, SM-90H and RM-30) which, together, account for 3.78% of the applicant’s sales on the Chinese domestic market. It is the prices for these models in particular which vary the most. Consequently, given the low volume of total sales of these models, the variations in their prices cannot be regarded as representative of a trend which is characteristic of the applicant’s overall conduct in determining the prices charged by it to its various customers.

68 The price variations of 71.89 and 34.55% identified in the sales of the high-range electronic weighing scales SM‑80/81B and SM‑80/81P arose primarily as a result of the fact that, as the Council pointed out without being contradicted by the applicant, the models in question comprise a number of sub-models. Since each sub-model has a different price, it follows that even though the same sub-model is sold at a uniform price, the average sales price varies according to the respective volume of sales of each sub-model during any given period.

69 It is also clear from the table that the monthly average prices for the most frequently sold model (namely the model DS‑685B, which accounted for 53.28% of sales on the Chinese domestic market), varied by 2.21%. However, that variation, which is after all very slight, does not in itself confirm that different customers were charged different prices. Finally, the variation of approximately 10% in the price of each of the three remaining models (namely the models DS‑685FB, DS‑688B and DS‑688FB) cannot, of itself, be regarded as significant.

70 The figures provided by the applicant concern only the monthly average sales prices, the trends in which may also be the result of periodic price variations, and, therefore, it cannot be ruled out that different customers may have been charged uniform prices during each period. Consequently, it cannot be established on the basis of the figures on the file, in particular those set out in the table in paragraph 66 above, that different prices were actually invoiced to different customers during the investigation period.

71 Moreover, the applicant has failed to adduce any evidence which might substantiate its argument that it carries on its activities in a context of generalised competition and that it sets and adapts its prices according to those of its competitors. In addition, it has failed to establish that the conditions under which the charging of different prices could be regarded as abusive under the rules on competition are fulfilled in the present case.

72 Finally, as regards the applicant’s argument that the Pricing Law has no bearing on its pricing policy, it need only be pointed out that the Council did not rely on the possible applicability of that law but on the fact the applicant had failed to submit sufficient evidence that it determines its prices according to market conditions.

73 Consequently, the Commission and, subsequently, the Council were entitled to find that the applicant had failed to furnish sufficient proof that it charged different customers different prices for the same product and, in making that finding, they committed no manifest error of assessment.

b) Sales at a loss

Arguments of the parties

74 The applicant submits that the Commission’s finding that it systematically made sales at a loss on the Chinese domestic market was both premature and irrelevant. First, the Commission did not await full disclosure of the information necessary to reach a decision on this matter. Secondly, it is clear from the Council’s findings that such practices are currently adopted by a number of traders operating in market economy conditions. In that regard, the applicant refers to the 30th and 38th recitals in the contested regulation.

75 As regards the overall balance of profits and losses, the applicant contests the findings made by the Community institutions that it had suffered considerable systematic losses on the Chinese domestic market and made large profits on the export markets. The applicant points out that it sells a large number of products other than electronic weighing scales on the Chinese domestic market. All the figures on sales made on the Chinese domestic market appearing in the income statement relate to all of those products and, therefore, cannot, in the applicant’s view, serve as a reliable indication of the profitability of sales of electronic weighing scales on the Chinese domestic market. Moreover, the balance sheet does not set out the profits and losses made on export sales separately from those made on the Chinese domestic market. Accordingly, the applicant takes the view that it is incorrect to claim that the income statement clearly shows that large profits were made on exports and significant losses on sales on the Chinese domestic market.

76 According to the applicant, the Community institutions never disclosed the calculations substantiating that claim. On the basis of the guesses which it has been able to make as to how the Community institutions made their calculations, the applicant submits that the results of such calculations show, for sales made on the Chinese domestic market, a profit of 1.96% for 1997 and a loss of 0.73%, which the applicant considers to be insignificant, for 1998. According to that same calculation, the profits made by the applicant on exports amounted to 8.68% in 1997 and to 10.5% in 1998. In the applicant’s view, the Council therefore committed a manifest error of assessment in concluding that the figures clearly indicate that considerable losses were made on sales on the Chinese domestic market for several years.

77 In addition, the applicant denies the Council’s claim that it suffered ‘huge losses’ on its sales of the model DS‑685B on the Chinese domestic market during the investigation period and submits that the Council failed to disclose the evidence on which it based that conclusion. The applicant states that its correspondence with the Commission shows that, on the contrary, most of its profits were made on sales on the Chinese domestic market, in particular sales of the models SM‑80 and SM‑90.

78 Further, the applicant asks the Council to produce the information on which it based its conclusion that the applicant sold almost all its models at uniform loss-making prices on the Chinese domestic market. Should the Council produce new figures, the applicant wishes to raise a new plea complaining that those figures were not disclosed within the meaning of the basic regulation, which constitutes an infringement of Article 20(4) of that regulation.

79 The Council claims that it is apparent from the applicant’s reply to the Commission’s investigation questionnaire and from the documents obtained during the verification visit that the applicant made large profits on its exports whilst suffering significant losses on the Chinese domestic market.

80 Moreover, the Council takes the view that the applicant’s calculation is invalid because it has failed to take account of the subsidies received by it and, in respect of 1998, the income derived from other transactions. According to the Council’s calculation, the sales made by the applicant on the Chinese domestic market actually gave rise to a profit of 0.24% for 1997, considered to be insignificant by the Council, and a loss, which the Council regards as considerable, of 2.59% for 1998, whereas the export profits amounted to 6.96% in 1997 and to 8.67% in 1998. In that connection, the Council drew up the following table, which reproduces the profit and loss table submitted by the applicant and incorporates the subsidies received by it, the amounts of which are indicated in bold (the table has been revised by the Court with a view to ensuring greater precision):



1998

1997 Company total Export Domestic market Company total Export Domestic market Sales 123 463 310.37 76 972 132.82 46 491 177.55 106 828 244.78 64 065 349.63 42 762 895.15 Sales costs 97 605 947.54 57 656 631.16 39 949 316.38 84 044 953.44 48 673 547.18 35 371 406.26 Other expenses and income 18 113 541.34 11 230 395.63 6 883 145.71 16 381 137.64 9 828 682.58 6 552 455.06 + 2 273 246.55 + 1 409 412.86 + 863 833.68 + 1 844 989.62 + 1 106 993.77 + 737 995.84 + 150 000.00 20 536 787.89 12 639 808.49 7 746 979.39 18 226 127.26 10 935 676.35 7 290 450.90 Profit/loss 7 743 821.49 8 085 106.03 - 341 284.54 6 402 153.70 5 563 119.87 839 033.83 101 037.99 4 456 126.10 4 557 164.08 - 1 205 118.22 6 675 693.17 5 320 574.94 Profit/loss as % of turnover (sales) 6.27 10.50 - 0.73 5.99 8.68 1.96 4.31 8.67 - 2.59 4.27 6.96 0.24

Findings of the Court

81 It must be examined, first, whether the applicant’s procedural rights were infringed with respect to the facts on which the Community institutions based their finding that sales were made at a loss; secondly, whether the Community institutions committed a manifest error of assessment in finding that the sales at a loss were a factor from which it could be inferred that the applicant did not operate in a market economy; and, thirdly, whether the Community institutions committed a manifest error of assessment in finding, on the basis of those factors, that sales were made at a loss.

82 With respect, first of all, to the applicant’s complaint of infringement of its procedural rights, it is sufficient to refer to paragraph 40 above.

83 Secondly, the applicant’s argument that some traders operating in market economy conditions also make sales at a loss from time to time does not, in itself, alter the fact that such a practice may be regarded as one of the factors from which it may be inferred – particularly where there are other factors such as uniform prices and restrictions imposed on sales – that a trader has failed to fulfil the first criterion laid down in Article 2(7)(c) of the basic regulation.

84 Thirdly, it must be borne in mind that the Council justified its rejection of the claim for market economy status on the ground that ‘the evidence indicated that [the applicant’s] prices [on the Chinese domestic market] were at loss-making levels for several years’. Moreover, it is for the applicant to establish that it operates in market economy conditions. However, after having been informed, by letter of 17 December 1999, that the Commission took the view that the applicant had systematically made losses on the Chinese domestic market, the applicant, far from producing evidence to the contrary, merely claimed, by letters of 27 December 1999 and 11 January 2000, that the Commission could not reach such a conclusion without having information which was required to be given only in the context of the reply to Part C of the investigation questionnaire, which concerned, inter alia, the profitability of the undertaking. If the applicant considered the Commission’s findings to be incorrect, there was nothing to prevent it from submitting relevant documents to the Commission, showing, as the case may be, that profits were made on the Chinese domestic market in the years in question. However, the applicant failed to produce such evidence.

85 Moreover, with respect to the evidence on which the Community institutions based their assessment, it must be held, first of all, that the fact that the applicant also sold products other than electronic weighing scales does not mean, in the present case, that the Commission committed a manifest error of assessment by using the figures in the applicant’s income statement in order to evaluate its profits and losses as regards the sole product in question. On the basis of the documents submitted by the applicant during the investigation, it was possible to determine the actual monetary value of sales of electronic weighing scales. If the sales are measured in terms of their actual monetary value rather than units, it can be seen that the sales of electronic weighing scales accounted for approximately three quarters of the applicant’s sales on the Chinese domestic market. According to the 1998 income statement, the applicant’s turnover on the Chinese domestic market amounted to almost CNY 46.5 million (this being the overall turnover less the export turnover), whereas, according to the table showing the monthly average sales prices and the monthly volumes of electronic weighing scales sold on the Chinese domestic market during the investigation period, which was produced by the applicant and not contested by the Council, the sales of electronic weighing scales amounted to CNY 34.1 million.

86 Furthermore, a ruling must be given on the validity of the applicant’s calculation, according to which its sales on the Chinese domestic market gave rise to a profit of 1.96% during the 1997 financial year and to a loss of 0.73% during the 1998 financial year. The Council rightly observes that the applicant has added to the income derived from its sales during the period 1997 to 1998 subsidies amounting to more than CNY 4 million.

87 That fact casts doubt on the merit of the applicant’s calculation. Whilst it is true that subsidies are also granted in market economies, they are always a factor which is external to the market and represent State interference which may steer the conduct of undertakings in a direction different from that which would have been dictated by market forces. Even though the amount of the subsidies in question is small in comparison to the applicant’s overall turnover in those two years, it does appear to be significant when compared with the very small, occasional profits made on the Chinese market.

88 If the subsidies received by the applicant are deducted from the profits made by it, as the Council did (see paragraph 80 above), it can indeed be seen that, as is plausible, the applicant made losses on the Chinese domestic market of 2.59% in 1998, whereas, in 1997, its position was almost in balance, with a profit of 0.24%. Similarly, such a calculation shows that the losses made by the applicant on the Chinese domestic market in the two years in question exceeded CNY 1.1 million, whereas it made profits of more than CNY 11.1 million on its exports.

89 Accordingly, whilst the terms used in the recitals in the contested regulation certainly go beyond what was apparent from the evidence on which the Community institutions relied, those institutions were nevertheless entitled to conclude, on the basis of that evidence, that the applicant’s sales in China were on the whole unprofitable during the period for which figures were available and, in doing so, they did not commit a manifest error of assessment.

90 That is one indication which, together with the other relevant evidence, could justify a finding that the applicant had failed to establish that it operated in market economy conditions.

91 Given that indication, it was for the applicant either to produce, during the administrative procedure, evidence which could invalidate the Community institutions’ finding based on it or to provide specific evidence showing that, despite the overall unprofitability, its sales practice in China was consistent with the conduct of an undertaking operating in market conditions.

92 In this connection, the applicant merely claims that, on the Chinese domestic market, most of its profits were made on sales of the SM‑80 and SM‑90 models of electronic weighing scales. The fact that profits were made on the sale of those models, even though it has just been established that the applicant suffered losses on the Chinese domestic market in respect of all the other electronic weighing scales, logically leads to the conclusion that greater losses were made in respect of the other models, in particular the most frequently sold models such as the low-range model DS‑685B, which invalidates the applicant’s calculation, particularly as regards 1998. It was those low-range models which the applicant exported to the European Community.

93 Accordingly, it must be held that the applicant has failed to establish that the Community institutions committed a manifest error of assessment in finding that it sold its products at a loss in China.

c) The ratio between sales on the Chinese domestic market and exports

Arguments of the parties

94 The applicant denies the finding made in the contested regulation that it was not entirely free to determine the ratio between its sales on the Chinese domestic market and those made on export.

95 The applicant contests the claim that, in accordance with the provisions of its articles of association and Article 15 of the detailed rules on implementation of the Chinese law on enterprises operated exclusively with foreign capital (‘the detailed rules’), an export ratio was imposed on it by way of a contract concluded between it and the local investment authority. It argues that it is clear that no such ratio exists, first, from the certificate issued by the Economic Commission for Foreign Affairs of Jinshan (China) of 22 December 1999 (‘the Jinshan certificate’), which it produced upon request and, secondly, from the fact that it made most of its sales on the Chinese domestic market. The applicant points out that the Jinshan certificate expressly confirms that no ratio was imposed by the Chinese authorities as regards its export sales. According to the applicant, that certificate is the only evidence relevant for the purposes of establishing that the Chinese Government did not impose any ratio on it.

96 The applicant disputes the Council’s arguments concerning the policy followed by the Chinese Government in that connection. According to the applicant, it cannot seriously be denied that there were state-owned manufacturers of electronic weighing scales in China which began, from the 1980s onwards, to sell their scales on the Chinese domestic market.

97 The Council submits that the Community institutions found that, between 1996 and the investigation period, the ratio of Shanghai Tekaora’s export sales to its sales on the Chinese domestic market was constant and that the applicant has failed to explain why, despite the losses on the Chinese domestic market, it maintained that percentage if no ratio had been imposed on it with regard to export sales.

Findings of the Court

98 The Jinshan certificate is worded as follows:

‘We, Jinshan Foreign Economy Commission is the authority to approve the set up of wholly-owned enterprise Shanghai Teraoka Electronic Co. Ltd in China by Teraoka Seiko Co. Ltd, Japan. Under the better negotiation between Mr Kazuharu Teraoka, Chairman of Board and us at the initial stage, we did not define any export sales ratio for this company. Further, contract was not requested to sign by us because Shanghai Teraoka Co. Ltd is a wholly-owned foreign company.’

99 For the purpose of establishing whether that document proves that the applicant was free to determine, on the basis of market conditions, the volume of its products to sell on the Chinese domestic market and on the volume to be exported, it is appropriate, first, to consider the content of the Chinese legislation governing the establishment of an undertaking such as the applicant.

100 Article 15 of the detailed rules states that the application for establishment of an undertaking wholly owned by foreign investors is to specify, inter alia, the ratio of sales on the Chinese domestic market to those on the international market. Under Article 45 of those rules, ‘in selling products [on] the Chinese [domestic] market, a wholly foreign-owned enterprise shall follow its approved sale ratio’ and ‘in case a wholly foreign-owned enterprise intends to sell more of its products than the approved sale ratio [on] the Chinese [domestic] market, approval is required from the examination and approval authority’.

101 As regards the question whether a ‘contract’ was concluded under Article 15 of the detailed rules, it should be observed that what is meant by ‘contract’ is in fact ‘the application for establishing a wholly foreign-owned enterprise’, which must specify, inter alia, the ratio of product sales on the Chinese domestic market to exports. Despite the Commission’s request that that document be produced, there was no such document among the information supplied to the Commission by the applicant during the investigation.

102 By contrast, in response to a written question, the applicant submitted to the Court documents relating to the procedure followed when it was set up. It is apparent from three of those documents, namely the feasibility study report on the project of manufacturing and operation of high precision sensors and its applications by single investment, submitted by the applicant on 8 August 1992, the official reply to that project proposal given by Jinshan County on 3 September 1992 and the request for approval of the proposal to establish an undertaking wholly owned by foreign investors, which was registered with the Foreign Trade and Economic Cooperation Commission of Jinshan County on 4 September 1992, that 50% of the products were intended for sale abroad. The other documents, in particular the application form for newly built or expanded enterprise projects, which was lodged with the Development and Planning Commission of Jinshan County on 31 August 1992, the report on the feasibility study and the articles of association of an undertaking wholly owned by foreign investors, drawn up by the Foreign Trade and Economic Cooperation Commission of Jinshan County on 17 September 1992, and the official reply to the feasibility study and articles of association of an undertaking wholly owned by foreign investors, issued by Jinshan County on 17 September 1992, merely show that ‘part’ of production would be exported. Those documents confirm, first, that the applicant was indeed required to specify the percentage of its sales intended for export when making its application for establishment of a company wholly owned by foreign investors and, secondly, that that percentage was approved by the authorities of Jinshan County in the official reply of 3 September 1992 to the application for establishment of the applicant. Those documents show that, when the applicant was set up, it was not envisaged that it would have complete freedom to apportion its sales. They therefore contradict the Jinshan certificate. That certificate therefore does not suffice as proof that the applicant was free to decide, without interference from the Chinese authorities, what proportion of its products to sell on the Chinese domestic market and what proportion to export.

103 It must therefore be examined whether, during the administrative procedure, the applicant otherwise submitted evidence from which it could be inferred that no ratio had been imposed on it as regards the apportioning of its sales between the Chinese domestic market and export and that its economic decisions were taken in accordance with market signals reflecting supply and demand.

104 For that purpose, a table is shown below, which was drawn up by the applicant and the content of which was not disputed by the Council. It summarises the information submitted to the Commission by the applicant in its reply to the investigation questionnaire with respect to market economy status.

1995 1996 1997 1998 IP* Sales in China 9 020 26 122 23 241 26 183 25 695 Sales in the EC 2 070 9 045 4 407 7 597 5 552 Total global sales 12 452 43 859 40 882 44 740 42 687 Sales in China as a percentage of total sales 72.44 59.56 56.85 58.52 60.19

* Investigation period.

105 The above table shows that, at all times from 1996 until the end of the investigation period, sales on the Chinese domestic market amounted, approximately, to between 57 and 60% of total sales and thus reveals little variation. In light of that stable percentage, it must be held that a certain ratio existed between the applicant’s sales on the Chinese domestic market and its export sales and that that ratio was virtually constant. As regards the fact that the percentage of sales on the Chinese domestic market was approximately 72% in 1995, it should be observed that the applicant itself stated, during the verification visit, that it did not begin to manufacture electronic weighing scales until 1995 and that it only reached its full production capacity in 1996. Accordingly, the ratio identified for 1995, which is different from that for the other years, cannot be regarded as representative owing to the special circumstances peculiar to that year, total sales in 1995 amounting only to approximately one third of the total sales recorded during the other years. There is therefore nothing to preclude only the later years from being taken into account and, consequently, a finding that there was a constant ratio.

106 The fact that that ratio was not 50%, as was provided for in the rules and specifications relating to the applicant’s establishment, but rather almost 60%, does not, in itself, show that the apportionment of sales was the result of independent decisions taken by the applicant in response to market signals and without interference from the Chinese authorities. It should be noted that under the detailed rules it was possible to increase the share of an undertaking’s domestic sales by means of authorisation by the competent authority.

107 Moreover, in the present context, which is characterised by the loss-making or, in any event, unprofitable sales made by the applicant on the Chinese domestic market and by the subsidies granted to it, the conclusion that the constant ratio was not the result of market forces appears to be the most plausible, and it was for the applicant to prove the contrary.

108 At the hearing, in response to a question put by the Court concerning the fact that Shanghai Teraoka had consistently sold 60% of its products on the Chinese domestic market, even though such sales gave rise to a loss, the applicant explained that it had an affiliate in the United Kingdom which produced a large number of the products intended for the European market and that, therefore, there was no need for it to export to that market from China. However, that argument does not adequately explain why it sold at a loss on the Chinese domestic market. As the Council submits, in a market economy, the applicant would have attempted either to increase its prices on the Chinese domestic market or to cease its sales on that market in order to concentrate on exports.

109 Accordingly, it must be held that the applicant failed to submit sufficient evidence to demonstrate that it was free to decide whether or in what proportion to sell its products on the Chinese domestic market.

d) Conclusion as to the first criterion laid down in Article 2(7)(c) of the basic regulation

110 First, as is clear from paragraphs 59 to 73 above, the applicant failed, during the investigation period, to produce sufficient evidence to show that it charged different prices to different customers and that its economic decisions were taken in response to market signals reflecting supply and demand.

111 Secondly, as is clear from paragraphs 81 to 93 above, the applicant has not succeeded in showing that it did not sell its products at a loss in China or that there were purely commercial reasons for its conduct.

112 Thirdly, as is clear from paragraphs 98 to 109 above, the applicant has failed to show that it maintained the identified ratio of sales on the Chinese domestic market to exports for purely commercial reasons and that that ratio was not imposed on it by the relevant provisions of Chinese law. In particular, it has failed to provide even the slightest plausible evidence explaining why it maintained that ratio despite its losses on the Chinese domestic market and even though its export sales were profitable.

113 It follows that the Community institutions did not commit a manifest error when assessing the facts by concluding, on the basis of the information supplied by the applicant during the investigation, that the applicant had failed to establish that it fulfils the first criterion laid down in Article 2(7)(c) of the basic regulation and that it therefore operated in market economy conditions.

114 The first plea must therefore be rejected as unfounded.

B – The second plea: infringement of Article 3(2), (3), (5) and (8) of the basic regulation and manifest error of assessment in the determination of injury

1. Preliminary observations

115 The applicant submits that the Community institutions infringed Article 3(2), (3), (5) and (8) by finding that the Community industry had suffered material injury. This plea can be divided into six parts. The first alleges infringement of Article 3(5) of the basic regulation; the second complains that, for the purpose of determining injury, account was taken of imports which were not dumped; the third challenges the finding that the Community industry suffered material injury; the fourth alleges a manifest error of assessment by the Community institutions in their assessment of the magnitude of the actual margin of dumping; the fifth alleges infringement of Article 3(2) and (3) of the basic regulation resulting from consideration of the figures issued by the Statistical Office of the European Communities (Eurostat); and the sixth alleges infringement of Article 3(2) and (8) of the basic regulation in that the effect of the dumped imports was assessed by reference to the Community production of only part of the like-product range.

116 Before considering the various parts of the second plea, it is appropriate to examine the infringement of Article 48 of the Rules of Procedure of the Court of First Instance alleged by the applicant in its reply.

117 The applicant submits that the Council infringed the Rules of Procedure by submitting new facts and assessments in its defence which were not disclosed to the applicant at any time during the administrative procedure. The complaint relates, in particular, to the statement made in the defence that the ‘change in the product mix, in particular, stemmed from the growth of high-range … sales [of electronic weighing scales] in recent times’. It must be held that the reference to Article 48 of the Rules of Procedure is irrelevant because, in the present case, the applicant is, essentially, complaining that the Council supplemented its statement of reasons for the contested regulation at the stage of the defence. It is sufficient here to observe that the applicant’s complaint is based on an erroneous premiss. As is clear from the disclosure document of 21 September 2000, the Commission disclosed to the applicant the change in sales volume for each segment separately. Accordingly, the complaint must be rejected.

118 As regards the substance of the second plea, it should be pointed out, first of all, that, as the Court observed in paragraph 48 above, the institutions enjoy broad discretion in assessing complex economic matters.

119 It is for the applicant to adduce evidence enabling the Court to find that the Council committed a manifest error of assessment when determining the injury (Case T‑121/95 EFMA v Council [1997] ECR II‑2391, paragraph 106; Case T‑210/95 EFMA v Council [1999] ECR II‑3291, paragraph 58; and Case T-58/99 Mukand and Others v Council [2001] ECR II‑2521, paragraph 41).

120 It is appropriate to begin with the sixth part.

2. Sixth part: infringement of Article 3(2) and (8) of the basic regulation relating to the assessment of the effect of the dumped imports by reference to the Community production of only part of the like-product range

a) Arguments of the parties

121 The applicant claims that the Council infringed Article 3(2) in conjunction with Article 3(8) of the basic regulation by assessing the effects of the imports by reference to only some of the products in the like-product range. According to the applicant, the clear wording of Article 3(8) makes it impermissible to assess imports in relation to the production of a part of the like-product range, in the present case, electronic weighing scales at the bottom of the range. In addition, the applicant submits that the Council has refused requests that injury be determined on the basis of an assessment of part of the like-product range only. In that regard, it refers to Council Regulation (EEC) No 3482/92 of 30 November 1992 imposing a definitive anti-dumping duty on imports of certain large electrolytic aluminium capacitors originating in Japan and collecting definitively the provisional anti-dumping duty (OJ 1992 L 353, p. 1) and, in particular, on the 12th recital in that regulation.

122 The Council contradicted itself by first acknowledging that the three segments of the relevant product are interchangeable but, ultimately, excluding the economic indicia relating to the mid and high-range segments from the scope of the assessment made by it in order to determine the injury.

123 In the applicant’s view, the increase in sales of high-range models during the investigation period was not a new situation for the Community institutions and, in recently closed investigations, the Community institutions did not carry out separate assessments of the various segments of the like product. It bases its argument on the 37th to 48th recitals in Council Regulation (EC) No 468/2001 of 6 March 2001 imposing a definitive anti-dumping duty on imports of certain electronic weighing scales originating in Japan (OJ 2001 L 67, p. 24) and on the 47th to 58th recitals in Council Regulation (EC) No 469/2001 of 6 March 2001 imposing a definitive anti-dumping duty on imports of certain electronic weighing scales originating in Singapore (OJ 2001 L 67, p. 37).

124 As regards the ‘average calculation’ method, the applicant takes the view that Article 3(8) of the basic regulation places the Community institutions under an obligation to assess the effect of dumped imports in relation to the Community production of the like product, in the present case, electronic weighing scales, and refers to the aim of that provision. It claims that the assessment of the development of the various injury indicators listed in Article 3(5) of the basic regulation and the examination of the impact of the imports, which was conducted on the basis of only part of the relevant product range, should be declared contrary to Article 3(8) of the basic regulation.

125 The Council contends that its segment-based method of assessment was consistent with Article 3(8) of the basic regulation. It states that the choice of such a method was dictated by the substantial increase in the volume of imports of high-range electronic weighing scales. That circumstance explains the difference in the approach taken by the Community institutions in the investigation leading to adoption of the contested regulation and that taken in the investigations to which the applicant refers.

b) Findings of the Court

126 It is clear from the 10th recital in the contested regulation that, as the Court pointed out in paragraph 66 above, the market for electronic weighing scales is commonly divided into three distinct segments: a low-range segment, a mid-range segment and a high-range segment.

127 First, it is not apparent from Article 3(8) of the basic regulation that an assessment by segment may not be carried out and that the average calculation method must be used. As the Council rightly pointed out, when determining injury under Article 3 of the basic regulation, the Community institutions may make an assessment on a segment-by-segment basis in order to evaluate the various injury indicators, particularly if the results obtained using another method prove to be distorted for one reason or another, provided that account is properly taken of the relevant product as a whole.

128 According to the 11th recital in the contested regulation, the relevant product comprises three segments. The 12th recital states that the electronic weighing scales manufactured in the Community are, in all respects, similar to the scales manufactured in China, South Korea and Taiwan and exported from those countries to the Community and that, therefore, those products are like products.

129 Moreover, given that the low-range segment accounted for 97% of the imports from the countries concerned in the investigation period (see the 63rd recital), it is logical, and indeed essential for an accurate result of the investigation, that the low-range segment of that product be assessed separately. Accordingly, there is no contradiction between the definition of the relevant product and the assessment of injury.

130 Secondly, as regards the applicant’s complaint that, by assessing separately the relevant factors, such as sales prices, market share, etc., with respect to the low-range segment, the Council based its assessment on part of the like-product range, it should be observed that, as is clear from the recitals in the contested regulation relating to injury, the Council at all times took account of all the electronic weighing scales and not only those in the low-range segment (see the 81st recital). Since the overall examination is based on a like product consisting of three segments and not only a low-range segment, it must be held that the Council did not infringe Article 3(8) of the basic regulation.

131 Consequently, the sixth part of the second plea must be rejected.

3. First part: infringement of Article 3(5) of the basic regulation

a) Arguments of the parties

132 The applicant complains that, when determining the injury, the Council failed to analyse all of the relevant factors, in particular the fact that the Community industry was still in the process of recovering from the effects of past dumping or subsidisation and the magnitude of the actual margin of dumping. In the applicant’s view, under Article 3(5) of the basic regulation, the Council had to take into account, for the purpose of determining injury, each of the relevant economic factors and indices listed in that article. The applicant refers to the decisions of the Dispute Settlement Body of the World Trade Organisation (WTO) and relies, in particular, on the WTO Panel’s report on anti-dumping duties on imports of cotton-type bedlinen from India (‘the bedlinen report’).

133 The applicant observes that the wording and context of Article 3(5) of the basic regulation and of Article 3.4 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103, ‘the 1994 Anti-dumping Code’) in Annex 1A to the Agreement establishing the WTO (‘the WTO Agreement’), which was approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), are almost identical and that Article 3(5) of the basic regulation places the Community institutions under an obligation to examine each of the 16 economic factors. That point of view is, the applicant claims, in keeping with the findings made in the bedlinen report. Moreover, the applicant takes the view that, where necessary, the irrelevance of any factor must be made apparent by clearly setting out the arguments on which that conclusion is based in the statement of reasons. It submits that the absence in that statement of reasons of information indicating that the Community institutions had satisfied the requirements clearly imposed on them prevents the Community judicature from exercising its review function.

134 The applicant observes that the 77th recital in the contested regulation makes no reference to an assessment by the Council of all the factors listed in the basic regulation. In addition, the applicant submits that the Community institutions failed to assess either the ‘fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation’ or ‘the magnitude of the actual margin of dumping’. As regards the first factor, the applicant argues that the 59th recital in the contested regulation, on which the Council relies in its defence, concerns Article 4(1) of the basic regulation and cannot establish that the Community institutions satisfied the obligation arising from Article 3(5) of the basic regulation. Moreover, the assessment of the impact of the imports, referred to in the 88th and 94th recitals and relating to only part of the relevant product range, infringed Article 3(8) of the basic regulation. Those factors cannot therefore, in the applicant’s view, serve as proof. With regard to the second factor, the applicant submits that, even if Article 3(8) of the basic regulation was not infringed, the statements in question cannot be regarded as including an assessment of the economic factors to which they relate as the mere reference to anti-dumping measures does not mean that the Community institutions carried out the assessment at issue or, more specifically, assessed the fact that the industry was sti