1 By its appeal, Changmao Biochemical Engineering Co. Ltd seeks to have set aside the judgment of the General Court of the European Union of 3 May 2018, Distillerie Bonollo and Others v Council (T‑431/12, EU:T:2018:251, ‘the judgment under appeal’) by which the General Court annulled Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (OJ 2012 L 182, p. 1, ‘the regulation at issue’).
2 By its cross-appeal, the European Commission requests that the Court set aside the judgment under appeal, or, in the alternative, that it set aside the judgment under appeal to the extent that the General Court required the Council of the European Union to adopt the measures necessary to comply with that judgment, although implementation is within the exclusive power of the Commission.
3 Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, and corrigenda OJ 2010 L 7, p. 22 and OJ 2016 L 44, p. 20, ‘the basic regulation’), which was in force at the time when the regulation at issue was adopted, provided, in Article 4(1): ‘For the purposes of this Regulation, the term ‘[Union] industry’ shall be interpreted as referring to the [Union] producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total [Union] production of those products …’.
4 According to Article 5(4) of that regulation: ‘An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by [Union] producers of the like product, that the complaint has been made by or on behalf of the [Union] industry. The complaint shall be considered to have been made by or on behalf of the [Union] industry if it is supported by those [Union] producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the [Union] industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated when [Union] producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the [Union] industry.’
5 Article 6(5) of that regulation provided: ‘The interested parties which have made themselves known in accordance with Article 5(10) shall be heard if they have, within the period prescribed in the notice published in the Official Journal of the European Union, made a written request for a hearing showing that they are an interested party likely to be affected by the result of the proceeding and that there are particular reasons why they should be heard.’
6 Article 9(4) of that regulation was worded as follows: ‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [Union] interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. Where provisional duties are in force, a proposal for definitive action shall be submitted no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the [Union] industry.’
7 Article 9(4) of the basic regulation, as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1), read as follows: ‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). Where provisional duties are in force, the Commission shall initiate that procedure no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry.’
8 That provision is reproduced in identical terms in Article 9(4) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) which codifies the basic regulation as amended.
9 According to Article 11(9) of the basic regulation: ‘In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.’
10 Article 21 of that regulation, entitled ‘[Union] interest’, provided: ‘1. A determination as to whether the [Union] interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers, and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the [Union] interest to apply such measures. 2. In order to provide a sound basis on which the authorities can take account of all views and information in the decision as to whether or not the imposition of measures is in the [Union] interest, the complainants, importers and their representative associations, representative users and representative consumer organisations may, within the time limits specified in the notice of initiation of the anti-dumping investigation, make themselves known and provide information to the Commission. Such information, or appropriate summaries thereof, shall be made available to the other parties specified in this Article, and they shall be entitled to respond to such information. …’
11 Tartaric acid is used, inter alia, in the production of wine and other beverages, as a food additive and as a retardant in plaster. In both the European Union and Argentina, L+ tartaric acid is produced from by-products of winemaking, known as wine lees. In China, L+ tartaric acid and DL tartaric acid are produced from benzene. The tartaric acid produced by chemical synthesis has the same physical and chemical characteristics and the same basic uses as that produced from the by-products of winemaking.
12 Changmao Biochemical Engineering is a Chinese exporting producer of tartaric acid. Distillerie Bonollo SpA, Industria Chimica Valenzana (ICV) SpA, Distillerie Mazzari SpA, Caviro Distillerie Srl and Comercial Química Sarasa SL are tartaric acid producers established in the European Union.
13 In response to a complaint concerning dumping in the tartaric acid sector that was lodged on 24 September 2004 by a number of producers established in the European Union, including Industria Chimica Valenzana (ICV), Distillerie Mazzari and Comercial Química Sarasa, the Commission published, on 30 October 2004, in the Official Journal of the European Union, a notice of initiation of an anti-dumping proceeding concerning imports of tartaric acid originating in the People’s Republic of China (OJ 2004 C 267, p. 4).
14 On 27 July 2005, the Commission adopted Regulation (EC) No 1259/2005 imposing a provisional anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (OJ 2005 L 200, p. 73).
15 On 23 January 2006, the Council adopted Regulation (EC) No 130/2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of tartaric acid originating in the People’s Republic of China (OJ 2006 L 23, p. 1).
16 By that regulation, first, the Council confirmed the market economy treatment (MET) granted by Regulation No 1259/2005 to Changmao Biochemical Engineering and to Ninghai Organic Chemical Factory, another Chinese exporting producer of tartaric acid, in accordance with Article 2(7)(c) 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), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17), which enabled them to be granted individual treatment under Article 9(5) thereof. Consequently, the normal value of the goods concerned was calculated on the basis of each company’s actual domestic selling prices.
17 Second, in the case of the other Chinese exporting producers not granted MET, the normal value was calculated on the basis of the actual domestic selling price of producers of the analogue reference country, Argentina.
18 On the basis of those calculation methods, anti-dumping duties of 10.1% and 4.7% were imposed respectively on the goods produced by Changmao Biochemical Engineering and by Ninghai Organic Chemical Factory, while the other Chinese producers were subject to an anti-dumping duty of 34.9%.
19 Following the publication on 4 August 2010 of a notice of the impending expiry of certain anti-dumping measures (OJ 2010 C 211, p. 11), on 27 October 2010 the Commission received a request for review of those measures, lodged by the five Union producers of tartaric acid, the applicants at first instance. On 26 January 2011, the Commission published a notice of initiation of an expiry review of those measures (OJ 2011 C 24, p. 14).
20 On 9 June 2011, those producers lodged a request for a partial interim review concerning the two Chinese exporting producers, Changmao Biochemical Engineering and Ninghai Organic Chemical Factory, pursuant to Article 11(3) of the basic regulation. A notice of initiation of such a review was published by the Commission on 29 July 2011 (OJ 2011 C 223, p. 16).
21 On 16 April 2012 the Council adopted Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ 2012 L 110, p. 3), which maintained the anti-dumping duties imposed by Regulation No 130/2006.
22 On the same date, the Commission sent the applicants at first instance a final disclosure document containing the essential facts and considerations on the basis of which it intended to recommend amending the anti-dumping measures in force. On the same day, the applicants at first instance sent a request for clarification of the calculation of the normal value, to which the Commission replied by letter of 19 April 2012.
23 On 25 April 2012 the applicants at first instance sent the Commission their observations on the final disclosure document, criticising in particular an alleged change in the methodology used to calculate the normal value. They also requested a hearing with the Commission’s representatives, which took place on 10 May 2012, during which they were able to state their objections. They also submitted additional written observations on 16 May and 7 June 2012.
24 On 26 June 2012, at the end of the partial interim review procedure referred to in paragraph 20 of the present judgment, the regulation at issue was adopted. By that regulation, the Council denied Changmao Biochemical Engineering and Ninghai Organic Chemical Factory the MET which they had previously been granted and, after having constructed the normal value on the basis of information provided by a cooperating producer in an analogue country, namely Argentina, applied anti-dumping duties of 13.1% and 8.3%, respectively, to the goods produced by those two Chinese exporting producers.
25 Taking the view that the anti-dumping duties thus imposed were not sufficiently high to remedy the extent of the dumping practised by those Chinese exporting producers and, therefore, to eliminate the injury suffered by the European industry, the applicants at first instance brought an action before the General Court for annulment of the regulation at issue, on which the General Court ruled by the judgment under appeal.
26 Changmao Biochemical Engineering, however, considered the anti-dumping duties imposed by the regulation at issue to be too high and also brought an action before the General Court for annulment of that regulation in so far as it was concerned by it. By the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372), the General Court upheld the fifth plea in law in the action, of a procedural nature, invoked by Changmao Biochemical Engineering. It therefore annulled the regulation at issue in so far as it applied to that company, on the ground that, in having refused to provide it with information relating to the price difference between DL tartaric acid and L+ tartaric acid, which was one of the fundamental elements of the calculation of the normal value of DL acid, the Council and the Commission had infringed the rights of the defence and Article 20(2) of the basic regulation. No appeal was brought against that judgment of the General Court.
27 In its notice concerning that judgment (OJ 2017 C 296, p. 16, ‘the notice of 7 September 2017’), the Commission stated, with regard to the scope of the reopening of the dumping procedure, that ‘the procedure underlying [the regulation at issue] [could] be resumed at the very point at which the illegality [had] occurred. Accordingly, in complying with the General Court’s judgment of 1 June 2017, the Commission [had] the possibility to remedy the aspects of the proceeding which [had] led to the annulment, while leaving unchanged those parts which [were] not affected by the judgment’. It made clear, moreover, that ‘findings reached in the [regulation at issue] which [had] not [been] contested, or which [had been] contested but [had been] rejected by the General Court’s judgment or not examined by the General Court, and therefore [had] not [led] to the annulment of the [regulation at issue], remain[ed] valid’. The Commission also stated that ‘this reopening [was] limited in scope to the implementation of the judgment of the General Court with regard to Changmao Biochemical Engineering Co. Ltd [and did] not affect other investigations. [Implementing Regulation No 349/2012] [was], therefore, still applicable in respect of the exporting producer concerned’.
28 The Commission took further steps, in parallel, under Article 11(2) of the basic regulation, culminating in the adoption, on 28 June 2018, of Implementing Regulation (EU) No 2018/921 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 (OJ 2018 L 164, p. 14). By that regulation, the Commission, inter alia, maintained the anti-dumping duty of 10.1% imposed on Changmao Biochemical Engineering by Regulation No 349/2012. It also stated in paragraph 58 of that regulation, in section 2.1.4 on the calculation of Changmao Biochemical Engineering’s dumping margin, that, ‘as the period for filing an appeal against that judgment is still ongoing, no definitive findings can be made on that basis at this point in time.’
29 By application lodged at the General Court Registry on 28 September 2012, the applicants at first instance brought an action for annulment of the regulation at issue.
30 By separate document lodged at the General Court Registry on 29 June 2015, the Council raised a plea of inadmissibility alleging that the applicants at first instance had no locus standi or interest in bringing proceedings. By order of 20 July 2016 the General Court reserved its decision on that plea.
31 By decision of 9 September 2016 and by order of 15 September 2016, the President of the Sixth Chamber of the General Court granted the Commission and Changmao Biochemical Engineering, respectively, leave to intervene, stating that, since their applications to intervene had been lodged after the expiry of the period prescribed in that respect, they were authorised to submit their observations during the oral procedure, on the basis of the report for the hearing which had been communicated to them.
32 In support of their action, the applicants at first instance raised five pleas in law, alleging (i) infringement of Article 11(9) of the basic regulation owing to the change in the methodology used to calculate the normal value, (ii) to (iv) erroneous use of a constructed normal value and incorrect construction of that value, and (v) infringement of the rights of the defence and of the obligation to state reasons.
33 By the first plea, the applicants at first instance submitted that the Council had infringed Article 11(9) of the basic regulation by changing the methodology used to calculate the normal value when this was not justified by a change in circumstances, that is to say, by ‘constructing’ the normal value used to calculate the dumping margin of the two Chinese exporting producers concerned by the partial interim review investigation, instead of using ‘the actual domestic … prices in the analogue country’, as it had done in the case of all other producers not granted MET during the initial procedure.
34 Having rejected the plea of inadmissibility raised by the Council, the General Court upheld the first plea in law and annulled the regulation at issue on that basis, without ruling on the other pleas.
35 At the request of the applicants at first instance, the General Court maintained the anti-dumping duty imposed by the regulation at issue as regards Ninghai Organic Chemical Factory until the adoption by the Commission and the Council of the measures necessary to comply with the judgment under appeal. In the case of Changmao Biochemical Engineering, the General Court considered, in essence, that, because of the annulment of the regulation at issue by the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372), that duty could not be maintained with respect to that company.
36 By its appeal, Changmao Biochemical Engineering claims that the Court should: - set aside the judgment under appeal, and - order the applicants at first instance to pay the costs which it has incurred in relation to the proceedings on appeal and at first instance.
37 Distillerie Bonollo, Industria Chimica Valenzana (ICV), Distillerie Mazzari and Caviro Distillerie (together, ‘Distillerie Bonollo and Others’) contend that the Court should: - dismiss the appeal in its entirety as being inadmissible and, in any event, unfounded, and - order Changmao Biochemical Engineering and any intervener to pay the costs which they have incurred in the proceedings on appeal and at first instance.
38 The Council contends that the Court should: - dismiss the appeal, and - order Changmao Biochemical Engineering to pay the costs relating to the appeal proceedings.
39 The Commission contends that the Court should: - dismiss the appeal as being inadmissible and, in any event, unfounded, and - order Changmao Biochemical Engineering to pay the costs.
40 By its cross-appeal, the Commission, supported by the Council, claims that the Court should: - set aside the judgment under appeal; - declare the first four pleas in law of the action at first instance inadmissible; - reject the fifth plea in law of the action at first instance as being unfounded or, in the alternative, refer the case back to the General Court in order for it to rule on that plea; - in the further alternative, set aside the judgment under appeal to the extent that it grants powers to the Council to adopt the measures necessary to comply with it; and - order Distillerie Bonollo and Others to pay the costs.
41 Changmao Biochemical Engineering requests that the Court: - set aside the judgment under appeal; - declare the first four pleas in law of the action at first instance inadmissible; - reject the fifth plea in law of the action at first instance as being unfounded or, in the alternative, refer the case back to the General Court in order for it to rule on that plea; and - order Distillerie Bonollo and Others to pay the costs.
42 Distillerie Bonollo and Others contend that the Court should: - reject the second part of the first ground of the cross-appeal as being inadmissible or, in the alternative, unfounded or inoperative; - reject the other grounds of the cross-appeal as being unfounded or inoperative; and - order the Commission to pay the costs which they have incurred in the context of the present proceedings, as well as those of any referral back to the General Court.
43 The cross-appeal lodged by the Commission seeks, primarily, to challenge the admissibility of the action at first instance, which is a preliminary issue as far as the substantive issues raised in the main appeal are concerned. It should therefore be examined first.
44 In support of its cross-appeal, the Commission, supported by the Council, relies on two grounds. By the first - and principal - ground relied on, the Commission (i) alleges that the General Court erred in law in so far as it found the four substantive pleas in law raised by the applicants at first instance and, therefore, the action in its entirety to be admissible, and (ii) claims that the fifth plea in law, of a procedural nature, which was invoked by the applicants at first instance before the General Court, should be rejected as unfounded. The second ground of appeal, submitted in the alternative, alleges that the General Court erred in law in that it empowered the Council, by the wording used in point 2 of the operative part of the judgment under appeal, to adopt the measures necessary to comply with that judgment, even though the Commission has exclusive power to do so.
45 The first ground of appeal is in two parts. By the first part, the Commission submits that the General Court adopted a broad interpretation of the condition, laid down in the fourth paragraph of Article 263 TFEU, that an applicant must be ‘directly concerned’ by the act whose annulment is sought. By the second part, the Commission claims, in essence, that the fifth plea in law raised by the applicants at first instance before the General Court, alleging infringement of the rights of the defence and a failure to state reasons, should be rejected as unfounded.
46 By the first part of this ground of appeal, which relates to paragraphs 51 to 73 of the judgment under appeal, the Commission complains, in essence, that the General Court found that the applicants at first instance were directly concerned by the regulation at issue, for the purposes of the fourth paragraph of Article 263 TFEU.
47 In the first place, the Commission notes that the General Court’s assessment in paragraph 51 of the judgment under appeal, that, ‘contrary to the Council and the Commission’s assertions, a restrictive interpretation of the requirement that the applicants’ legal situation must be directly affected cannot be accepted’, has to be seen in the light of the statement in paragraph 93 of that judgment that the condition that a person can bring an action challenging a regulation only if he is concerned both directly and individually ‘must be interpreted in the light of the right to effective judicial protection’. The Commission argues that it follows from reading those paragraphs in conjunction with each other that the General Court took the latter right as a basis for adopting a broad interpretation of the condition of ‘direct concern’. Such an interpretation is, however, at odds with the case-law of the Court of Justice on admissibility, in particular the judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited), and, moreover, modifies the fourth paragraph of Article 263 TFEU, which fails to have regard to the exclusive power in that respect conferred on the founding authority of the Union. Furthermore, according to the Commission, the Court’s interpretation in the case giving rise to the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873), of the condition of direct concern cannot be applied in the present case, principally because of the significant differences that exist between the field of State aid and the field of anti-dumping within which those two cases, respectively, fall.
48 In the second place, according to the Commission there is no reason to loosen the requirement of ‘direct concern’ so that the applicant is required merely to be materially affected by the act whose annulment is sought. It is appropriate, therefore, to adhere to consistent case-law according to which the contested EU act must directly affect the legal situation of the applicant. The Commission submits that if the regulation at issue is to be capable of being considered to affect the legal situation of the applicants at first instance, it must confer on them a substantive right in the form of a subjective right to have a certain level of anti-dumping duties imposed. In the Commission’s view, the judgment under appeal is contradictory in its reasoning in that the General Court recognised, in paragraph 63 of the judgment under appeal, that the applicants at first instance did not have a subjective right to have a certain level of anti-dumping duties imposed, while at the same time basing the admissibility of the substantive pleas on the finding, set out in paragraph 59 of that judgment, that they had wanted the Commission and the Council to adopt suitable measures to offset the dumping that had caused them injury.
49 According to the Commission, that finding can be read in two ways. First, the General Court might have assumed that the applicants at first instance had a substantive right to a certain result of the investigation, in the form of a certain level of tariff protection, even though Article 21 of the basic regulation makes no provision for such a right.
50 Second, that finding could be interpreted as indicating that the General Court had assumed that the applicants at first instance had a broader substantive right in having the provisions of the basic regulation correctly applied, not only from a procedural but also from a substantive aspect, to the extent that their own interests could be regarded as having been affected. However, according to the Commission, there is no reason to reserve to the Union tartaric acid industry such a substantive right to seek the correct application of the basic regulation in order to defend their interests, as that regulation does not guarantee a certain outcome to one specific category of market participants.
51 In the third and last place, the Commission claims that the General Court erred in law, in paragraph 59 of the judgment under appeal, by finding that the applicants at first instance were directly concerned by the regulation at issue because the measures adopted at the end of the partial interim review procedure were intended to offset the ‘injury they [had] suffered as competing producers operating on the same market’, when the regulation at issue contains no finding on the injury suffered by the Union industry. In fact, the findings in relation to that injury were included not in the regulation at issue but in Regulation No 349/2012, which was not addressed in the context of the present dispute. According to the Commission, the assessment of whether the regulation at issue directly affected the legal position of the applicants at first instance had to be based on the legal effects of the regulation at issue itself, and not on previous legal acts related to that regulation. To rule otherwise would create a ‘presumption of direct concern’ for all the legal acts that happen to be related, even though there is no provision for such a presumption in the FEU Treaty.
52 The Council and Changmao Biochemical Engineering endorse the Commission’s arguments. The Council also states that a regulation imposing anti-dumping duties on exporting producers established outside the Union is not capable of having legal effects on Union producers, because the latter do not pay anti-dumping duties.
53 Distillerie Bonollo and Others contend that the first part of this ground of appeal is unfounded.
54 It should be recalled that the admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 32 and the case-law cited).
55 The conditions of admissibility laid down in that provision must be interpreted in the light of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in the FEU Treaty (judgment of 28 April 2015, T & L Sugars and Sidul Açúcare v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44 and the case-law cited).
56 After investigating, in paragraphs 47 to 93 of the judgment under appeal, whether the applicants at first instance had standing in accordance with the fourth paragraph of Article 263 TFEU to bring proceedings against the regulation at issue, the General Court found, in paragraph 94 of that judgment, that they were directly and individually concerned by that regulation.
57 By the first ground of appeal in its cross-appeal, the Commission maintains, in essence, that the General Court erred in finding that the action brought by the applicants at first instance was admissible although, according to the Commission, they were not directly concerned by that regulation.
58 It should be noted in that regard that, according to settled case-law, the condition that the measure forming the subject matter of the proceedings must be of direct concern to a natural or legal person requires the fulfilment of two cumulative criteria, namely the contested measure must, first, directly affect the legal situation of the individual and, second, leave no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 103 and the case-law cited).
59 In the present case, as is apparent from paragraph 50 of the judgment under appeal, the Member States, which were responsible for implementing the regulation at issue, had no discretion as regards the rate of anti-dumping duty set by that regulation and the imposition of that rate on the goods concerned. Thus, the General Court was fully entitled to find that the second criterion was met.
60 When examining the first criterion, the General Court, in paragraphs 55 to 58 of the judgment under appeal, recalled the relevant case-law of the Court of Justice, including the judgment of 20 March 1985, Timex v Council and Commission (264/82, EU:C:1985:119) concerning a situation comparable to that of the present case, in which the Court ruled that the applicant in that case, a European producer which considered that the anti-dumping duties imposed on its competitors were not sufficiently high, was directly concerned by the regulation which it was seeking to have annulled. In paragraph 59 of the judgment under appeal, the General Court stated that ‘the [regulation at issue] terminates the partial interim review procedure, initiated at the … request [of the applicants at first instance], by modifying the anti-dumping duties applicable to imports from the two Chinese exporting producers. In submitting their request for a partial interim review pursuant to Article 11(3) of the basic regulation, the applicants [at first instance] wanted the Commission and the Council to adopt suitable measures to offset the dumping that had caused them injury. In so far as the applicants [at first instance] triggered the partial interim review procedure, and as the measures adopted at the end of that procedure were intended to offset the dumping that caused the injury they have suffered as competing producers operating on the same market, they are directly concerned by the [regulation at issue]’.
61 As regards the assessment of the injury claimed by the applicants at first instance, the General Court stated that Implementing Regulation No 349/2012 reported a decrease in the Union producers’ market share of more than 7 points between 2007 and 2010, and a 28% decrease in the level of employment over the same period. It also found that it was clear from recitals 62 and 80 of that implementing regulation that the volume of imports into the Union of the products in question from the two Chinese exporting producers subject to anti-dumping measures had reached a market share of over 12% in 2010 and that the Union industry remained vulnerable to the injurious effects of dumping. Last, having pointed out that the Council itself had conceded that the regulation at issue did not call into question the statements in Implementing Regulation No 349/2012 concerning the existence of material injury to the Union industry and the existence of a causal link between the imports from China - including those from the two Chinese exporting producers in question - and that injury, the General Court considered that it could not be denied that the applicants at first instance experienced the serious adverse effects of the dumping that the regulation at issue sought to eliminate.
62 The question of the admissibility of the action raised by the Commission in the context of the first part of the first ground of the cross-appeal must be examined in the light of the system established by the basic regulation and the nature of the anti-dumping measures provided for by that regulation, having regard to the provisions of the fourth paragraph of Article 263 TFEU.
63 It is apparent from the settled case-law of the Court that although regulations imposing anti-dumping duties in respect of a product are legislative in nature and scope, in that they apply to all the economic operators concerned, it is not inconceivable that some of them may be of direct and individual concern, in particular, under certain conditions, to the producers of that product (see, to that effect, judgment of 30 September 2003, Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 73 and the case-law cited). In this regard, it is necessary to consider in particular the part played by the applicant producer in the anti-dumping proceedings and its position on the market to which the contested legislation applies (judgment of 20 March 1985, Timex v Council and Commission, 264/82, EU:C:1985:119, paragraph 12).
64 The Court has, moreover, ruled that such regulations are also liable to be of direct and individual concern to inter alios those producers who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (judgment of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 21 and the case-law cited).
65 It must be borne in mind in that regard that the amount of the anti-dumping duty must be calculated by reference to the conclusions reached by the Commission or the Council following the examination of the determination of injury, within the meaning of Article 3(6) and (7) of the basic regulation. That finding is supported, as the Court has previously held, by the wording of Article 9(4) of that regulation, in so far as it refers in the first sentence to ‘dumping and [the] injury caused thereby’ (judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraphs 169 and 170).
66 Thus, for the purposes of establishing the anti-dumping duty, the Commission determines, pursuant to the last provision mentioned in the preceding paragraph, not only the dumping margin but also the injury margin, which is calculated by reference to the amount of anti-dumping duty capable of ending the injury sustained by the Union industry. That calculation ensures that an anti-dumping duty is imposed on the basis not of the dumping margin but of the margin of injury to the Union industry, if the latter is lower than the former - in accordance with the lesser-duty rule to which the Advocate General also refers in point 93 of his Opinion.
67 Where the amount of the anti-dumping duty has been established, it is also necessary, as the Advocate General noted in point 98 of his Opinion, to assess whether the imposition of that duty is justified in the Union interest. According to Article 9(4) of the basic regulation, where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21 of that regulation, a definitive anti-dumping duty is to be imposed (see, to that effect, judgment of 30 September 2003, Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 90).
68 It must be noted in that regard that Article 21(1) of that regulation requires the institutions of the Union, which are called upon to determine whether it is in the Union interest to adopt or to extend anti-dumping measures, to appreciate all the interests at stake taken as a whole, including the interests of the national industry and users and consumers, paying particular attention to the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition. Such a determination may be made only if all the parties have been given the opportunity to make their views known pursuant to Article 21(2) (judgment of 15 June 2017, T.KUP, C‑349/16, EU:C:2017:469, paragraph 42).
69 Furthermore, the Court has held, in paragraphs 25 and 31 of the judgment of 4 October 1983, Fediol v Commission (191/82, EU:C:1983:259), that the regulation on protection against dumping practices and the grant of subsidies at issue in the case that gave rise to that judgment recognised the existence of a legitimate interest on the part of Union producers in the adoption of anti-dumping measures and that it defined certain specific procedural rights in their favour. Consequently, if they are injured by anti-dumping practices on the part of countries not members of the Union, those producers have a legitimate interest in the initiation of protective action by the Union and must, therefore, be acknowledged to have a right of action on the basis of the legal status which that regulation confers on them.
70 Moreover, it is apparent from the case-law that, in the context of a case concerning the validity of a regulation imposing an anti-dumping duty, such as the regulation at issue, the Court has already stated that it is not only undertakings required to pay a specific anti-dumping duty and those importing the product concerned by that regulation which must, under that regulation, pay a specific anti-dumping duty that must be regarded as having, in principle, an interest in the result of the case, but also undertakings which were regarded by the Commission as forming part of the Union industry under consideration in the regulation imposing definitive anti-dumping duties and which actively participated in the administrative procedure that led to the adoption of that regulation. In so far as such a regulation is adopted after a finding that injury has been suffered by the Union industry, the view must be taken that those undertakings may be affected by the possible annulment of the regulation at issue (see, by analogy, order of the President of the Court of 13 October 2016, Commission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P, not published, EU:C:2016:796, paragraphs 12 and 13).
71 In the present case, in accordance with the case-law recalled in paragraph 63 of the present judgment, it is necessary to take into account, in the first place, the fact that the applicants at first instance played an important part in all the stages of the administrative procedure that led to the adoption of the regulation at issue. As is apparent from paragraphs 13 to 24 of the present judgment, the applicants at first instance made the original complaint to the Commission, criticising dumping in the field of tartaric acid, as well as the requests for review on the basis of the expiry of the anti-dumping measures applicable to imports of tartaric acid from China and for the partial interim review concerning Changmao Biochemical Engineering and Ninghai Organic Chemical Factory that led, respectively, to the adoption of Regulation No 349/2012 and the regulation at issue. In addition, as noted in paragraphs 22 and 23 of this judgment, in the context of the investigations opened by the Commission following those requests for review, the applicants at first instance, in their capacity as Union producers, made written and oral submissions and received clarification from the Commission concerning their request for such clarification in relation to the calculation of the normal value.
72 In that context, as regards the position of the applicants at first instance on the market concerned by the regulation at issue, they are, as is apparent from paragraph 87 of the judgment under appeal, representative of the Union industry within the meaning of Article 4(1) and Article 5(4) of the basic regulation. They include, moreover, the Union’s main producer of tartaric acid, Distillerie Mazzari. Thus, it must be noted that the applicants at first instance were concerned by the preliminary investigations, within the meaning of the case-law cited in paragraph 63 of the present judgment, because of their significant contribution in the context of the administrative procedure that led to the adoption of the regulation at issue.
73 In the second place, it is apparent from recital 2 of the regulation at issue that the applicants at first instance are identified by name in that regulation as Union producers which lodged a request for interim review. The majority of them were so identified, moreover, from the very outset of the procedure, as is clear from recitals 1 and 8 of Regulation No 1259/2005. It must also be noted that the applicants at first instance were described, as section 1.2 of that regulation shows, as ‘parties concerned by the proceeding’ or ‘interested parties’. It must be borne in mind in that regard that, according to Article 6(5) of the basic regulation, such parties may, on request, be heard, provided that they show that they are an interested party likely to be affected by the result of the proceeding and that there are particular reasons why they should be heard. In the present case, since, as has already been stated in paragraph 71 of the present judgment, the applicants at first instance were heard during the administrative procedure that led to the adoption of the regulation at issue, they were regarded as parties likely to be affected by the result of the proceeding.
74 In the third place, it must be noted that the same parties were concerned by the preliminary investigations, within the meaning of the case-law cited in paragraph 64 of the present judgment, also because of the fact that the anti-dumping duty established by that regulation was determined by reference to their particular situation on the market concerned by that regulation and the injury which they suffered as a result of the dumping practices which the regulation at issue sought to eliminate.
75 As is apparent from recitals 53 to 82 of Regulation No 1259/2005, the conclusions of which were confirmed in recital 27 of Regulation No 130/2006, following the examination of the impact of the dumped imports on the Union industry it was concluded that that industry had suffered material injury, within the meaning of Article 3 of the basic regulation. Next, the Commission considered, in recitals 115 to 118 of Regulation No 1259/2005, that provisional measures had to be imposed in order to prevent further injury being caused to the Union industry by the dumped imports at issue, and that those measures had to be imposed at a level sufficient to remove the effects of the injurious dumping. Those considerations were confirmed by the Council in recital 39 of Regulation No 130/2006.
76 In so far as the anti-dumping duty at issue was established on the basis of the injury margin which the dumped imports had entailed for the Union industry, of which the applicants at first instance were representative, and those applicants experienced the serious adverse effects of the dumping practices which the regulation at issue sought to eliminate, it must be held that they had a legitimate interest, within the meaning of the case-law cited in paragraph 69 of the present judgment, in the initiation of protective action by the Union, and that they therefore had to be acknowledged as having a right of action on the basis of the legal status conferred on them by the basic regulation.
77 Accordingly, the General Court did not err in finding, in paragraphs 49 to 59 of the judgment under appeal, that, in so far as the applicants at first instance triggered the partial interim review procedure, and the measures adopted at the end of that procedure were intended to offset the dumping that caused the injury they had suffered as competing Union producers operating on the same market as the two Chinese exporting producers referred to by the regulation at issue, the latter regulation directly affected their legal situation.
78 That assessment cannot be called into question by the arguments advanced by the Commission and the Council, as set out in paragraphs 47 to 52 of the present judgment.
79 First, as regards the Commission’s argument that the General Court invoked the principle of effective judicial protection in order to broaden the condition of ‘direct concern’, within the meaning of the fourth paragraph of Article 263 TFEU, it is sufficient to note that the General Court referred to that principle, in paragraph 93 of the judgment under appeal, only for the sake of completeness.
80 In accordance with the settled case-law of the Court, arguments directed against a ground of the judgment under appeal that was stated purely for the sake of completeness, even on the assumption that they are well founded, cannot lead to that judgment’s being set aside (judgment of 19 April 2007, OHIM v Celltech, C‑273/05 P, EU:C:2007:224, paragraph 56).
81 It follows that that first argument must be rejected as being ineffective.
82 Second, as regards the Commission’s argument that the General Court erred in law in finding that the applicants at first instance were directly affected by the regulation at issue solely because that regulation affected their factual situation, it must be borne in mind that, as noted in paragraphs 71 to 77 of the present judgment, that regulation affects those applicants not only because of their factual situation but also because of their legal situation, in the context of the procedure that led to the adoption of the regulation at issue.
83 This argument must, therefore, be rejected as being unfounded.
84 Furthermore, in view of the fact that, in the present case, the criterion of ‘direct concern’ within the meaning of the fourth paragraph of Article 263 TFEU was understood in the light of the system established by the basic regulation and the nature of the anti-dumping measures which it laid down, as is apparent from paragraphs 62 to 77 of the present judgment, the Commission’s arguments in relation to the possible application, in the field of anti-dumping, of the approach taken by the Court in relation to that criterion in the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873), adopted in the field of State aid, is, in any event, ineffective.
85 Moreover, since it has been established, as is apparent from paragraphs 71 to 77 and 82 of the present judgment, that the regulation at issue affects the legal situation of the applicants at first instance, this Court must also reject as ineffective the Commission’s arguments as to the alleged need for that regulation to confer on those applicants a substantive right, in the form of a subjective right to the imposition of a certain level of anti-dumping duties, as well as the Council’s argument to the effect that that regulation cannot affect the applicants’ legal situation since they do not pay anti-dumping duty on the product concerned.
86 Third, the Commission is wrong to find that the injury suffered by the applicants at first instance was assessed not in the regulation at issue but in Regulation No 349/2012, which was not addressed in the context of the present dispute. It is sufficient to find that it is apparent from paragraphs 86 to 89 of the judgment under appeal that the Council conceded, in the proceedings before the General Court, that the regulation at issue, adopted two months after Regulation No 349/2012, did not call into question the stated findings of that regulation concerning the existence both of material injury which the Union industry had suffered and of a causal link between the imports from China - including those of the two Chinese exporting producers concerned - and that injury.
87 Consequently, the Commission’s argument must be rejected as being unfounded.
88 Having regard to all of the foregoing considerations, the first part of the first ground of appeal in the Commission’s cross-appeal must be rejected as being, in part, ineffective and, in part, unfounded.
89 By the second part of the first ground of appeal, the Commission, supported by the Council and by Changmao Biochemical Engineering, submits, in essence, that, should the Court decide to uphold the first part of that ground of the cross-appeal and set aside the judgment under appeal on that basis, the fifth plea in law raised by the applicants at first instance before the General Court, alleging infringement of the rights of the defence and a failure to state reasons, would have to be rejected as unfounded.
90 Distillerie Bonollo and Others contend that the Commission’s request to reject, as unfounded, the fifth plea raised before the General Court is inadmissible.
91 In that regard, it is sufficient to find that, as has been pointed out in paragraph 89 of the present judgment, that second part of the first ground of the cross-appeal was raised by the Commission only in the alternative, in the event that the Court should decide to uphold the first part of that ground of the cross-appeal and set aside the judgment under appeal on that basis.
92 Since, as is apparent from paragraph 88 of the present judgment, the first part of this ground of appeal has not been upheld, the second part must be rejected as being, in any event, ineffective.
93 By its second ground of appeal, invoked in the alternative in case the Court should decide not to set aside the judgment under appeal, the Commission, supported by the Council and by Changmao Biochemical Engineering, submits that the General Court erred in law in deciding, in point 2 of the operative part of that judgment, to maintain the effects of the regulation at issue until not only the Commission, but also the Council, had adopted the measures necessary to comply with that judgment. It claims that by granting the Council, in that paragraph, the power to adopt anti-dumping measures, the General Court disregarded Regulation No 37/2014 of the European Parliament and of the Council of 15 January 2014 (OJ 2014 L 18, p. 1), which grants the Commission exclusive competence in that area, including where the anti-dumping measures related to duties that were originally adopted by the Council before the entry into force of that regulation, and were readopted following the reopening of the investigation in order to comply with a judgment of the Courts of the European Union annulling those duties.
94 Distillerie Bonollo and Others challenge those arguments. They note that, while Regulation No 37/2014 entailed a migration of competence in favour of the Commission as regards the adoption of the definitive anti-dumping measures, at the time when the application initiating proceedings was lodged in this case, that is 28 September 2012, the Council, which was moreover the ‘original architect’ of the regulation at issue, had that competence. Distillerie Bonollo and Others recall in that respect that, under Article 266 TFEU, it is for the institution whose act has been declared void to take the necessary measures to comply with the judgments of the Courts of the European Union, and they make clear that that is no longer possible in this case. Therefore, in their view, the General Court actually intended, through point 2 of the operative part of the judgment under appeal, to address that issue of the migration of competences. Furthermore, that paragraph should be interpreted as meaning that the Commission is not in any event exempted from its duties in that respect.
95 It must be noted that, as the Advocate General stated in point 127 of his Opinion, Article 1 of Regulation No 37/2014 amends Article 9(4) of the basic regulation in such a way that definitive anti-dumping duties, which were previously imposed by the Council, are now to be imposed by the Commission.
96 Although, prior to the amendment introduced upon the entry into force of Regulation No 37/2014, Article 9(4) of the basic regulation conferred on the Council the power to impose anti-dumping duties, that provision of the basic regulation, as amended by Regulation No 37/2014 and subsequently reproduced by Regulation 2016/1036, provides that, where the facts as finally established show that there is dumping and injury caused thereby and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty is to be imposed by the Commission.
97 In that regard, the Court has already held, in essence, that that provision, as amended, read in conjunction with Article 14(1) of the basic regulation, constitutes the legal basis empowering the Commission not only to impose anti-dumping duties by regulation but also to re-impose such duties following delivery of a judgment annulling a regulation imposing anti-dumping duties (judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 42 and 43 and the case-law cited).
98 In the present case, as the Advocate General noted in point 128 of his Opinion, the measures necessary to comply with the judgment under appeal can be adopted only after the date on which that judgment was delivered, that is, after 3 May 2018. Accordingly, in so far as those measures can be taken only after the entry into force of Regulation 2016/1036, on 20 July 2016, they must be based on Article 9(4) of that regulation, read in conjunction with Article 14(1) thereof. It follows that the Commission alone is competent to adopt those measures.
99 Consequently, it must be held that, in ruling, in point 2 of the operative part of the judgment under appeal, that it was not only for the Commission but also for the Council to adopt the measures necessary to comply with that judgment, the General Court made an error of law.
100 That assessment cannot be called into question by the arguments of Distillerie Bonollo and Others regarding the obligations of the Council, in its capacity as the institution whose regulation is at issue, under Article 266 TFEU.
101 Admittedly, under that provision, the EU institution whose act has been declared void by the Court of Justice or the General Court is required to take the necessary measures to comply with the judgment annulling that act (judgments of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 35, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 37).
102 However, prior to the adoption of such measures by the institution whose act has been annulled, the question arises as to the competence of that institution, since the EU institutions may only act within the limits of the powers conferred on them (judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 36). The principles of institutional balance and of the allocation of powers, as laid down in Article 13(2) TEU, require that each institution act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out therein (see, to that effect, judgment of 28 July 2016, Council v Commission, C‑660/13, EU:C:2016:616, paragraphs 31 and 32 and the case-law cited).
103 Therefore, while Article 266 TFEU does indeed establish an obligation for the institution concerned to act, it does not constitute a source of competence for that institution, nor does it enable that institution to rely on a legal basis which has in the meantime been repealed (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 39 and the case-law cited). Furthermore, according to the case-law, the provision which forms the legal basis of an act and empowers an EU institution to adopt the act in question must be in force at the time when the act is adopted and, moreover, procedural rules are generally held to apply from the time of their entry into force (judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 88 and the case-law cited).
104 In those circumstances, the second ground of the cross-appeal must be upheld, in so far as it relates to the General Court’s error of law in point 2 of the operative part, whereby the Council is obliged to take the measures necessary to comply with the judgment under appeal. Consequently, point 2 of the operative part of the judgment under appeal must be set aside in so far as the General Court thereby required the Council to take the measures necessary to comply with that judgment, and the cross-appeal must be dismissed as to the remainder.
105 In its appeal, Changmao Biochemical Engineering advances a single ground of appeal which concerns paragraphs 130, 133, 134, 136, 137 and 139 to 141 of the judgment under appeal and by which it claims that the General Court made several errors of law in its analysis with respect to the first plea in law raised before it by the applicants at first instance.
106 The Council contends that the appeal is inadmissible on the ground that the judgment under appeal does not directly affect Changmao Biochemical Engineering, within the meaning of the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union.
107 The Commission and Distillerie Bonollo and Others support, principally, the arguments advanced by the Council.
108 The Council claims that the judgment under appeal does not directly affect the appellant, since the regulation at issue had already been annulled, in so far as it applied to the appellant, by the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372). Accordingly, the appellant is not entitled, in accordance with the conditions laid down in the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, to bring that appeal.
109 In the first place, the Council notes that, first, that judgment became final before the judgment under appeal was delivered. Second, the Council claims that the annulment of the regulation at issue by the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372) with respect to Changmao Biochemical Engineering put the appellant back in the situation in which it had been before that regulation was adopted, that is to say, a situation governed by Regulation No 349/2012. For that reason, it should be held that the annulment of the regulation at issue by the General Court in the judgment under appeal and the maintaining of its effects vis-à-vis Ninghai Organic Chemical Factory cannot produce any legal effect on the legal position of Changmao Biochemical Engineering.
110 Since there is no legal link between the appellant and Ninghai Organic Chemical Factory, the obligation of the competent institutions, under Article 266 TFEU, to adopt the measures necessary to comply with the judgment under appeal concerns only the products of Ninghai Organic Chemical Factory.
111 The Council, moreover, considers that the status of Changmao Biochemical Engineering as intervener at first instance does not confer on it standing to bring the present appeal.
112 In the second place, according to the Council, Changmao Biochemical Engineering confuses the legal effects of the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372) with those of the judgment under appeal. Contrary to the appellant’s arguments, according to which point 2 of the operative part of the judgment under appeal effectively ordered the Commission to increase the level of the anti-dumping duties applicable to its products as set out in recitals 55 to 57 of Regulation No 2018/921, the level of those duties could only be amended with regard to imports of the products of Changmao Biochemical Engineering following the procedure initiated by the Commission by the notice of 7 September 2017. Furthermore, it does not follow from recital 58 of Regulation No 2018/921 that Changmao Biochemical Engineering was directly affected by the judgment under appeal, and therefore that judgment cannot be interpreted as conferring on it standing to bring proceedings in the context of the present appeal.
113 In the third place, the Council maintains that Changmao Biochemical Engineering has no interest in bringing an appeal against the judgment under appeal, because setting aside that judgment would not procure any advantage to it.
114 In the fourth place, according to the Council, the inadmissibility of the present appeal does not restrict the right of Changmao Biochemical Engineering to judicial review of acts directly concerning that company. If Changmao Biochemical Engineering was not satisfied with the result of the investigation concerning its products following the Commission’s reopening of the dumping proceeding, it could bring an action before the General Court challenging the Commission’s decision ordering that reopening, that is to say, the decision which the Commission would be led to adopt following the notice of 7 September 2017.
115 The Commission and Distillerie Bonollo and Others support those arguments.
116 The Commission also recalls that, in points 52 and 57 of her Opinion in Joined Cases Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2014:2439), Advocate General Kokott noted that ‘an appellant or cross-appellant is directly affected within the meaning of the second sentence of the second paragraph of Article 56 of the Statute [of the Court of Justice of the European Union] where the judgment under appeal brings about a detrimental change in that party’s own legal position or adversely affects its own economic or moral interests [and that that] judgment must thus entail a material adverse effect for the appellant or cross-appellant’. The Commission finds however that, in the present case, since the regulation at issue was annulled by the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372) in so far as it applied to the appellant, the judgment under appeal, by which the General Court annulled that regulation, changes only the legal position of Ninghai Organic Chemical Factory and has no effect on that of Changmao Biochemical Engineering.
117 The Commission also makes clear that the decision, which is apparent from the notice of 7 September 2017, to reopen the anti-dumping investigation into imports of tartaric acid originating in China that had led to the adoption of the regulation at issue, in so far as that regulation applies to Changmao Biochemical Engineering, and to resume that investigation at the point at which the irregularity occurred, was only a preparatory act and was not capable of modifying the legal effects deriving from the operative part and the reasoning of the judgment under appeal, which was delivered, moreover, after that preparatory act.
118 Distillerie Bonollo and Others contend that, by its arguments, Changmao Biochemical Engineering modifies the condition of admissibility of appeals brought by interveners other than the Member States and the EU institutions, laid down in the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, which requires them to be ‘directly affected’ by the decision of the General Court which they seek to have set aside, in that those parties might be entitled to lodge an appeal where the General Court’s decision may lead to the adoption of a legal act the effects of which have not yet crystallised and which could, therefore, affect them only in the future. According to Distillerie Bonollo and Others, the appellant is merely referring, pre-emptively, to a separate, future legal act, that is a new implementing regulation, which the competent EU institutions would be required to adopt in order to comply with the judgment under appeal, and which might result in those institutions determining a higher dumping margin in respect of tartaric acid. However, at the time when the appeal was brought, that line of reasoning was based on purely hypothetical considerations.
119 Changmao Biochemical Engineering contests those arguments in their entirety. Thus, for the purposes of demonstrating that the judgment under appeal affects it directly, within the meaning of the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, it submits that the EU institutions will, pursuant to point 2 of the operative part of that judgment, have to adopt anti-dumping measures based on a different method of calculation of the value of the products in question than that provided for by the regulation at issue. Accordingly, the method of calculation of the ‘constructed’ value used in that regulation would be replaced by that relating to the ‘actual domestic selling price of producers of the analogue reference country’, Argentina. The recalculation of the dumping margin, as determined in accordance with the latter method, would result in much higher anti-dumping duties for exports of its products to the Union than the duty of 13.1% established by the regulation at issue, or of 10.1%, as laid down by Implementing Regulation No 349/2012 and last confirmed by Implementing Regulation No 2018/921.
120 According to Changmao Biochemical Engineering, it is clear from these considerations that point 2 of the operative part of the judgment under appeal affects it directly.
121 The appellant adds that, in any event, it also satisfies the admissibility test set out by the judgment of 2 October 2003, International Power and Others v NALOO (C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P, EU:C:2003:534), by which the Court of Justice recognised, in essence, that interveners at first instance which could run the risk of being exposed to actions for damages before the national courts as a result of the Commission’s action to comply with a decision of the General Court are ‘directly affected’ by that decision. The appellant claims that it runs such a risk in the present case.
122 In accordance with the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal against a decision of the General Court may be brought by an intervener at first instance other than a Member State or an institution of the Union only where that decision ‘directly affects’ it.
123 In the present case, as the Council, the Commission and Distillerie Bonollo and Others submit, the regulation at issue was annulled, in so far as it applied to the appellant in the present appeal, by the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372), which has become final. The appellant was therefore put in the situation in which it had been before that regulation entered into force, that is a situation governed by Implementing Regulation No 349/2012, which provided for an anti-dumping duty of 10.1% in respect of Changmao Biochemical Engineering’s products.
124 Given that, as the Commission confirmed during the hearing before this Court, the review investigation which it had opened following the notice of 7 September 2017 had been suspended pending delivery of the Court’s judgment in the present proceedings, the admissibility of the appeal is entirely subject to the issue as to whether the judgment under appeal directly affects Changmao Biochemical Engineering, within the meaning of the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union.
125 On that basis it should be recalled that, by the judgment under appeal, the General Court annulled the regulation at issue on the ground that, because Changmao Biochemical Engineering and Ninghai Organic Chemical Factory were denied continued MET, the normal value of their goods was not determined, during the partial interim review procedure, ‘using domestic sales prices in Argentina’, as was the case for exporting producers not granted MET during the initial investigation, but was ‘constructed’‘on the basis of the costs of production in Argentina’. That change in methodology as compared to the calculation made during the initial investigation with respect to exporting producers that were not granted MET was considered by the General Court to be an infringement of Article 11(9) of the basic regulation, since it was not based on a change in circumstances. The General Court also stated, in paragraph 134 of the judgment under appeal, that, although it was apparent from the regulation at issue that the choice of methodology thus used was attributable to the differences, in particular of cost, between the processes for producing tartaric acid in Argentina and China, the natural process and the synthetic process, respectively, those differences existed and were already known about at the initial investigation stage.
126 It must be noted that the assertion by Changmao Biochemical Engineering that the normal value, as calculated not ‘on the basis of the costs of production in Argentina’ but on the basis of domestic sales prices in Argentina, would result in much higher duties than the duty of 13.1% imposed by the regulation at issue was not disputed by any of the parties involved in the present proceedings. Therefore, as in the case that gave rise to the judgment of 2 October 2003, International Power and Others v NALOO (C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P, EU:C:2003:534, paragraph 52), to which the appellant refers, there is indeed a risk of the measures adopted by the Commission to comply with the judgment under appeal being detrimental to Changmao Biochemical Engineering and of the latter being exposed to the risk of actions for payment of much higher anti-dumping duties than the duty imposed by the regulation at issue.
127 Furthermore, as is apparent from point 1 of the operative part of the judgment under appeal, the regulation at issue was annulled in its entirety and not with respect to a particular exporting producer.
128 It follows that, as the Advocate General noted, in essence, in points 152 and 153 of his Opinion, the Commission will, in order to comply with that judgment, have to recalculate the normal value on the basis of domestic sales prices in Argentina not only for Ninghai Organic Chemical Factory, but also for Changmao Biochemical Engineering.
129 Consequently, it must be held that Changmao Biochemical Engineering is directly affected by the judgment under appeal, within the meaning of the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, and, therefore, its action must be declared admissible.
130 The Council’s arguments relating to the notice of 7 September 2017 have, in that respect, no bearing on the assessment of the admissibility of the present appeal.
131 The same applies to the arguments of Distillerie Bonollo and Others, according to which Changmao Biochemical Engineering is directly concerned not by the judgment under appeal but by the measures to be taken subsequently by the EU institutions in order to comply with that judgment. They claim that it is only once those measures have been adopted that the appellant may be regarded as being directly concerned by that judgment, for the purposes of the second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union.
132 Suffice it to note in that regard that, as the Advocate General stated, in essence, in point 162 of his Opinion, since the act annulled by the judgment of the General Court is a regulation, the obligation on the Commission to take the necessary measures to comply with that judgment arises only as from the end of the present appeal proceedings.
133 In the light of all of the foregoing considerations, the plea of inadmissibility raised by the Council must be rejected and the present appeal declared admissible.
134 The single ground of appeal is in three parts. By the first part, the appellant maintains that the General Court erred in law by finding that the Council had changed the methodology for determining the normal value of the goods concerned, contrary to Article 11(9) of the basic regulation. By the second part of this ground of appeal, it is alleged that no distinction is made between cooperating and non-cooperating exporting producers. Last, by the third part of this ground of appeal, the appellant submits that the judgment under appeal is vitiated by errors of assessment regarding the normal value in non-market economy countries.
135 By the first part of its single ground of appeal, Changmao Biochemical Engineering maintains that the General Court erred in finding that the Council had, contrary to Article 11(9) of the basic regulation, used a method of calculation of the normal value during the partial review investigation that led to the adoption of the regulation at issue that differed from the method used during the original investigation. In its view, the method used was one and the same in this case. The difference in outcome is, in its submission, due to the specific facts at play and, in particular, to the material differences in the methods of production of tartaric acid in Argentina and China.
136 Furthermore, according to the appellant, the fact that the General Court found that the use of a constructed normal value, as opposed to a normal value based on actual sales prices in the analogue reference country, represented a change in methodology prohibited under Article 11(9) of the basic regulation effectively limits unduly the discretion of EU institutions to construct the normal value.
137 The appellant adds that, even if such a change in methodology did take place, it would be justified because of the major change in circumstances during the partial interim review procedure affecting the operations of Chinese exporters, and which meant that it was impossible for it to continue to be granted MET, as it had been during the original investigation. In the appellant’s submission the General Court was wrong not to characterise the loss of MET as a change in circumstances within the meaning of Article 11(9) of the basic regulation. The Council had, during the review procedure, used the normal value constructed on the basis of the costs of production in the analogue reference country because of that loss of MET.
138 The Commission contends that it is necessary to determine whether Article 11(9) of the basic regulation must be interpreted as applying restrictively, as suggested by the appellant, namely on a ‘company-by-company’ basis, or broadly, as the General Court found in the judgment under appeal, which essentially involves an ‘investigation-by-investigation’ comparison.
139 The Commission maintains that it is the General Court’s interpretation that should be adopted. In its view, it can be inferred from the overall context of Article 11(9) of the basic regulation that the objective of that provision is to ensure legal certainty for all undertakings affected by the anti-dumping measures. Consequently, the Commission claims that that provision can be regarded, in the context of review procedures such as the partial interim review that led to the adoption of the regulation at issue, as the expression of the general principle of equal treatment now enshrined in Article 20 of the Charter of Fundamental Rights of the European Union. The General Court’s reasoning in the judgment under appeal is, according to the Commission, in line with that interpretation.
140 Accordingly, that first part of the single ground of appeal, and the appeal in its entirety, should be dismissed as being unfounded.
141 Distillerie Bonollo and Others claim that the single ground of appeal is inadmissible, in all its parts, in so far as Changmao Biochemical Engineering asks the Court to review the General Court’s assessment of the facts or merely reiterates arguments that had already been raised by the Council and the Commission in the proceedings at first instance. Furthermore, according to the applicants at first instance, that single ground of appeal should in any event be rejected as being unfounded.
142 According to the wording of Article 11(9) of the basic regulation, in all review investigations, the Commission must, provided that circumstances have not changed, apply the same methodology as that used in the investigation leading to the imposition of the anti-dumping duty in question, with due account being taken of, inter alia, Article 2 of that regulation.
143 According to the case-law, the exception whereby the institutions may, in the review procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, for a derogation from or exception to a general rule must be interpreted narrowly (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, EU:C:2013:572, paragraph 17 and the case-law cited).
144 The requirement that a provision be interpreted strictly cannot however permit the institutions to interpret and apply the provision in a manner inconsistent with its wording and purpose (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, EU:C:2013:572, paragraph 19 and the case-law cited).
145 In the present case, first, as is apparent from paragraph 129 of the judgment under appeal, during the investigation which led to the adoption of Regulation No 130/2006, the normal value of the relevant products of Changmao Biochemical Engineering and of Ninghai Organic Chemical Factory, which had been granted MET, had been established on the basis of their actual domestic sales prices, pursuant to Article 2(1) to (6) of the basic regulation, whereas the normal value of the products of exporting producers not granted MET had been calculated on the basis of domestic sales prices in an analogue country, namely Argentina, under Article 2(7)(a) of that regulation.
146 Second, it is apparent from paragraph 131 of the judgment under appeal that, in the context of the investigation that led to the adoption of the regulation at issue, the normal value of the relevant products of Changmao Biochemical Engineering and of Ninghai Organic Chemical Factory was calculated on the basis of the costs of production of the analogue country, namely Argentina, in accordance with Article 2(7) of the basic regulation.
147 In that regard, as the Advocate General stated, in essence, in point 174 of his Opinion, since those two Chinese exporting producers were denied MET in the investigation which led to the adoption of the regulation at issue, the normal value could no longer be established in accordance with Article 2(1) to (6) of the basic regulation.
148 In those circumstances, it must be held that the General Court did not err in law when it ruled, in paragraph 132 of the judgment under appeal, that the fact that the normal value was constructed, for the two Chinese exporting producers, on the basis of the costs of production in Argentina and was not determined on the basis of the domestic sales prices in that country constituted a change in methodology within the meaning of Article 11(9) of the basic regulation. It correctly explains in that paragraph that ‘the normal value for exporting producers not granted MET had been calculated on the basis of the Argentinian domestic sales prices during the initial investigation, whereas it was constructed, in essence, on the basis of the costs of production in Argentina during the review investigation of the two Chinese exporting producers that were no longer eligible for MET’. It also correctly emphasised that since the text of Article 11(9) of the basic regulation referred to applying the same method in the initial investigation and in the review investigation, that provision did not confine itself to merely requiring the same method to be applied to the same economic entity.
149 Furthermore, while, as is apparent from Article 11(9) of the basic regulation, the EU institutions are required to apply the same method in order to calculate the normal value for exporting producers not granted MET during the initial investigation and the review investigation, subject to a change in circumstances, Changmao Biochemical Engineering’s claim that the General Court did not justify the change in methodology in this case on the basis of a change in circumstances cannot succeed. Suffice it to note in that regard that the General Court found, in paragraph 134 of the judgment under appeal, that ‘the [regulation at issue] does not refer to a change in circumstances’, since the justification put forward by the Council, as set out in recital 27 of that regulation, relating to the difference between methods of production in Argentina and China cannot characterise a change in circumstances in so far as ‘those differences existed and were already known about at the initial investigation stage’.
150 It should, moreover, be stated that the loss of an undertaking’s MET cannot be regarded as constituting a change in circumstances within the meaning of Article 11(9) of the basic regulation, justifying the application of a different method during a review investigation from the method applied during the investigation that led to the imposition of the anti-dumping duty concerned.
151 Any other interpretation would have the effect of making the applicability of that provision, with regard to undertakings from non-market economy countries which are granted MET, dependent on the good will of those undertakings or on those undertakings having the opportunity to continue to operate in market economy conditions.
152 As regards, last, Changmao Biochemical Engineering’s argument, as set out in paragraph 136 of this judgment, concerning the discretion of the EU institutions to construct the normal value, it is apparent from the settled case-law of the Court that the choice between the different methods of calculating the dumping margin and the assessment of the normal value of a product entail an appraisal of complex economic situations, in connection with which those institutions enjoy a broad discretion (see, to that effect, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraphs 40 and 41 and the case-law cited).
153 It should be pointed out, however, that the EU legislature intended to limit that discretion in the light of the application of Article 11(9) of the basic regulation, and the Council was therefore bound, during the investigation that resulted in the adoption of the regulation at issue, to adopt, in the absence of a change in circumstances, the same method as that which had been applied during the investigation that led to the imposition of the anti-dumping duty concerned.
154 Accordingly, the first part of the single ground of appeal must be rejected.
155 By the second and third parts of its single ground of appeal, Changmao Biochemical Engineering maintains that the General Court made several errors of law in paragraphs 139 to 141 of the judgment under appeal concerning, primarily, the failure to distinguish between the categories of cooperating and non-cooperating exporting producers, and the application of a single normal value to all exporting producers that were denied MET.
156 According to the appellant, the General Court was wrong not to take that distinction into account when determining the normal value used to calculate the dumping margin. Changmao Biochemical Engineering states in that respect that, while the dumping margin calculation for the category of non-cooperating exporting producers is made on the basis of the ‘best facts available’ from an analogue country, in accordance with Article 18 of the basic regulation, the calculation of that margin in relation to the category of cooperating exporting producers is based on facts which they themselves have provided to the EU institutions, in the context of their cooperation with those institutions. By failing to draw any distinction between those two categories of producers, the General Court wrongly placed them in the same situation and subjected cooperating exporting producers to the same rules for calculating the normal value as those applicable to non-cooperating exporting producers, that is those based on ‘best facts available’ pursuant to Article 18 of the basic regulation.
157 The appellant submits that the General Court should have recognised the existence of a third category of exporting producers, which includes the appellant itself since the loss of its MET, that is the class of Chinese exporting producers no longer eligible for MET but which cooperated in the partial interim review investigation. In its submission, Article 11(9) of the basic regulation cannot be applied to that category of exporting producers. The treatment of the cooperating exporting producers that were granted MET during the original investigation may not give rise to the application of that provision to the same cooperating exporting producers which, although they cooperated during the partial interim review that led to the adoption of the regulation at issue, were not considered to be operating under market economy conditions.
158 According to Changmao Biochemical Engineering, the EU institutions should, in any event, be free to apply Article 2 of the basic regulation to that category of exporting producers, taking into account the new circumstances that led to the loss of MET and the fact that they have fully cooperated with those institutions.
159 The Commission contends that the distinction between cooperating and non-cooperating exporting producers is relevant only if the legal reference framework is based on a ‘company-by-company’ approach, which Changmao Biochemical Engineering has failed to establish. Furthermore, it submits that Changmao Biochemical Engineering’s references to Article 18 of the basic regulation and to the risk of discrimination are ineffective.
160 Distillerie Bonollo and Others contend that the second and third parts of the single ground of appeal must be rejected as being inadmissible.
161 The arguments put forward by Changmao Biochemical Engineering in support of the second and third parts of its single ground of appeal are based on a misreading of the judgment under appeal. In paragraph 139 of that judgment, the General Court found that, ‘unlike the other, non-cooperating exporting producers, [Changmao Biochemical Engineering and Ninghai Organic Chemical Factory] were granted an individual anti-dumping duty based on their respective export prices’. The General Court came to this conclusion having noted that it was apparent from recital 22 of the regulation at issue that the two exporting producers cooperating with the investigation were granted individual treatment as regards the calculation of the normal value of their respective products.
162 Consequently, the second part of the single ground of appeal must be rejected as being unfounded.
163 As to the alleged errors of the General Court with regard to the application of the same normal value for all exporting producers denied MET, the General Court stated first of all, in paragraph 140 of the judgment under appeal, that it was apparent from the case-law that, ‘under Article 9(5) of the basic regulation, an individual anti-dumping duty is usually calculated by comparing the normal value applicable to all the exporting producers with the individual export prices of the producer in question’. It went on to state, in paragraph 141 of that judgment, that a single normal value was used for non-cooperating exporting producers that were denied MET ‘given that, in that situation, the calculations of the normal value are carried out on the basis of data from an analogue country and thus irrespective of their respective data’. The General Court added moreover in that paragraph that, ‘in that second situation, an exporting producer may always apply for individual treatment, which means that an individual dumping margin will be calculated by comparing the normal value, which is the same for all, with its own export prices, instead of comparing the normal value with the industry’s export prices’.
164 The Court cannot accept Changmao Biochemical Engineering's claim that the EU institutions should be free to apply Article 2 of the basic regulation to cooperating exporting producers, since that provision does not confer on an exporting producer which is ineligible for MET and has cooperated with the investigation the right to more favourable treatment in the establishment of the normal value. It must also be held that, in any event, the appellant has not demonstrated how the distinction between cooperating and non-cooperating exporting producers would legally permit the Council to switch from using actual prices in the analogue country, as was the case in the original investigation for Chinese exporting producers ineligible for MET, to using constructed normal values.
165 In those circumstances, the third part of the single ground of appeal must be rejected as being unfounded, and this ground of appeal must be dismissed.
166 It follows from all of the foregoing considerations that the appeal must be dismissed.
167 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.
168 Article 138 of those rules, applicable to appeal proceedings pursuant to Article 184(1) thereof, provides in paragraph 1 that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(2), where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared.
169 In the present case, since Changmao Biochemical Engineering has been unsuccessful in its appeal and Distillerie Bonollo and Others, the Council and the Commission have applied for Changmao Biochemical Engineering to be ordered to pay the costs, Changmao Biochemical Engineering must be ordered to bear its own costs and to pay those incurred by Distillerie Bonollo and Others as well as by the Council and the Commission in relation to the main appeal.
170 Since the Commission has been partly unsuccessful in its cross-appeal, it must be ordered to bear its own costs and to pay four fifths of the costs incurred by Distillerie Bonollo and Others relating to that cross-appeal.
171 Changmao Biochemical Engineering and the Council are to bear their own costs in connection with the cross-appeal.