Changmao Biochemical Engineering v Commission (Dumping - Imports of tartaric acid originating in China - Judgment) [2020] EUECJ T-541/18 (16 December 2020)

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(Dumping – Imports of tartaric acid originating in China – Extension of a definitive anti-dumping duty – Determination of the normal value – Protocol of Accession of China to the WTO – Analogue country methodology – Article 2(7) and Article 11(2) of Regulation (EU) 2016/1036 – Vulnerability of the Union industry – Likelihood of recurrence of injury – Rights of the defence – Obligation to state reasons)

Changmao Biochemical Engineering Co. Ltd, established in Changzhou (China), represented by K. Adamantopoulos and P. Billiet, lawyers,

European Commission, represented by A. Demeneix and M. França, acting as Agents,

APPLICATION pursuant to Article 263 TFEU for the annulment of Commission Implementing Regulation (EU) 2018/921 of 28 June 2018 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 of the European Parliament and of the Council (OJ 2018 L 164, p. 14),

composed of A.M. Collins (Rapporteur), President, Z. Csehi and G. De Baere, Judges,

having regard to the written part of the procedure and further to the hearing on 2 July 2020,

1 Tartaric acid is used in the production of wine and of other beverages, as a food additive and as a retardant in plaster and in numerous other products. It can be obtained either from the by-products of winemaking, as is the case with production in the European Union (‘natural tartaric acid’), or via chemical synthesis from petrochemical compounds, as is the case with production in China (‘synthetic tartaric acid’). Solely L+ tartaric acid can be manufactured from the by-products of wine, whereas chemical synthesis enables the manufacture of L+ and DL tartaric acid. Synthetic tartaric acid and natural tartaric acid have the same physical and chemical characteristics and are, generally, intended for the same overlapping basic uses. Both types constitute the product under review of anti-dumping measures.

2 On 24 September 2004, the European Commission received a complaint about dumping practices in the tartaric acid sector lodged by several Union producers.

3 On 23 January 2006, the Council of the European Union 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) (‘the 2006 Definitive Regulation’). That regulation imposed individual duties of 0% to 10.1% on three Chinese exporting producers which received market economy treatment, namely, the applicant, Changmao Biochemical Engineering Co. Ltd, Hangzhou Bioking Biochemical Engineering Co. Ltd (‘Hangzhou Bioking’), and Ninghai Organic Chemical Factory (‘Ninghai Organic’). In particular, the 2006 Definitive Regulation imposed duties of 0% for products from Hangzhou Bioking, 4.7% for products from Ninghai Organic and 10.1% for the applicant’s products. Furthermore, the 2006 Definitive Regulation imposed duties of 34.9% on the tartaric acid produced by all other Chinese exporting producers.

4 On 13 April 2012, the Council adopted Implementing Regulation (EU) No 332/2012, amending Regulation No 130/2006 and excluding the company Hangzhou Bioking Biochemical Engineering Co. Ltd from the definitive measures (OJ 2012 L 108, p. 1, ‘the Regulation Excluding Hangzhou Bioking’). Under that regulation, adopted following the report of the World Trade Organization (WTO) Appellate Body of 29 November 2005 in the case of ‘Mexico – Definitive Anti-Dumping Measures on Beef and Rice’ (WT/DS 295/AB/R, ‘the Beef and Rice WTO Appellate Body report’), the Council excluded exports from Hangzhou Bioking from the 2006 Definitive Regulation. In that regard, recital 4 of the Regulation Excluding Hangzhou Bioking states that, according to the Beef and Rice WTO Appellate Body report, an exporting producer not found in an original investigation to be dumping has to be excluded from the scope of the definitive measures and cannot be made subject to a review of those measures.

5 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 extended the initial measures for five additional years, with the exception of the products from Hangzhou Bioking.

6 Following the partial interim review procedure covering the applicant and Ninghai Organic, on 26 June 2012 the Council adopted Implementing Regulation (EU) No 626/2012 amending Implementing Regulation No 349/2012 (OJ 2012 L 182, p. 1, ‘the 2012 Partial Interim Review Regulation’). In essence, that regulation denied the applicant and Ninghai Organic the status of companies operating under market economy conditions and, having constructed the normal value on the basis of information provided by a cooperating producer in the analogue country, increased the anti-dumping duty applicable to the products manufactured by the applicant from 10.1% to 13.1% and that applicable to the products manufactured by Ninghai Organic from 4.7% to 8.3%.

7 On 9 February 2016, the Commission adopted Implementing Decision (EU) 2016/176 terminating the anti-dumping proceeding concerning imports of tartaric acid originating in the People’s Republic of China and produced by Hangzhou Bioking Biochemical Engineering (OJ 2016 L 33, p. 14, ‘the Hangzhou Bioking Decision). By that decision, the Commission terminated the investigation of the imports of products manufactured by Hangzhou Bioking pursuant to Article 5 of 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), (replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21, ‘the Basic Regulation’)), without imposing anti-dumping duties.

8 By the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372), the General Court annulled the 2012 partial interim review regulation in so far as it applied to the applicant on account of an infringement of the rights of the defence. No appeal was brought against that judgment.

9 On 7 September 2017, the Commission published in the Official Journal of the European Union a notice about the consequences of the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T‑442/12, EU:T:2017:372) concerning the 2012 Partial Interim Review Regulation (OJ 2017 C 296, p. 16). That notice states that the Commission decided to reopen the anti-dumping investigation concerning imports of tartaric acid originating in the People’s Republic of China that led to the adoption of the 2012 Partial Interim Review Regulation and to resume it at the point at which the irregularity was found to exist. The scope of that reopening was limited to the implementation of the judgment of the General Court with regard to the applicant. That reopening did not affect any other investigation. Accordingly, Implementing Regulation No 349/2012, which extended the initial measures for five additional years, continued to apply to the applicant’s products.

10 By the judgment of 3 May 2018, Distillerie Bonollo and Others v Council (T‑431/12, EU:T:2018:251), the General Court annulled the 2012 Partial Interim Review Regulation on account of the change in methodology used to calculate the normal value during the review investigation, without having shown there to be a change in circumstances as compared with the initial investigation. In view of the fact that the action brought by certain Union producers did not seek to have the anti-dumping duty resulting from the Contested Regulation declared void, but to have it replaced by a more stringent measure imposing a higher anti-dumping duty by applying a different calculation method, the General Court decided to maintain the effects of the 2012 Partial Interim Review Regulation as regards Ninghai Organic’s products until the Commission and the Council had adopted the measures necessary to comply with that judgment.

11 By the judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others (C‑461/18 P, EU:C:2020:979), the Court of Justice, in essence, rejected the appeals brought against the judgment of the General Court mentioned in the previous paragraph, except in so far as the General Court thereby required the Council, together with the Commission, to take the measures necessary to comply with that judgment.

12 On 7 September 2016, the Commission published a notice in the Official Journal of the European Union of the impending expiry of the anti-dumping measures imposed by Implementing Regulation No 349/2012 (OJ 2016 C 329, p. 5).

13 On 24 January 2017, the Commission received an expiry review request pursuant to Article 11(2) of the Basic Regulation seeking the continued imposition of the anti-dumping measures. That request was lodged by five producers representing over 52% of total Union production, namely Distillerie Bonollo SpA, Caviro Distillerie Srl, Industria Chimica Valenzana (ICV) SpA, Alvinesa Alcoholera Vinícola, and Comercial Química Sarasa.

14 On 19 April 2017, the Commission published in the Official Journal of the European Union a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of tartaric acid originating in the People’s Republic of China (OJ 2017 C 122, p. 8), pursuant to Article 11(2) of the Basic Regulation.

15 By letter of 20 April 2017, the Commission asked the interested parties to make observations on the provisional sample of Union producers which it had selected in accordance with Article 17 of the Basic Regulation. The provisional sample consisted of six producers representing 86% of total tartaric acid production in the Union, that is to say four of the producers who had requested the expiry review (Caviro Distillerie, Industria Chimica Valenzana, Alvinesa Alcoholera Vinícola and Comercial Química Sarasa) and two others (including Distillerie Mazzari).

16 By letter of 4 May 2017, the association of Italian producers of tartaric acid, Assodistil, made observations concerning the provisional sample of Union producers. Assodistil stated that, according to its information, Distillerie Mazzari did not want to cooperate in the review investigation because it was disappointed that the Hangzhou Bioking Decision had closed the investigation without imposing anti-dumping duties.

17 By letter of 5 May 2017, Distillerie Bonollo requested that it be included in the sample of Union producers.

18 On 13 June 2017, after noting that a Union producer included in the provisional sample did not want to cooperate in the review investigation (Distillerie Mazzari) and that another producer not included in that investigation had asked to be included (Distillerie Bonollo), the Commission decided that it was no longer appropriate to carry out a sample of the producers of tartaric acid in the Union and decided to send questionnaires to all Union producers.

19 The Commission sent questionnaires to nine Union producers, six users in the Union and ten producers established in potentially analogue third countries (including Argentina and Australia). It received replies from seven Union producers (without, however, receiving a reply from Distillerie Mazzari), from four users in the Union and from one producer established in Australia.

20 None of the Chinese exporting producers that were contacted by the Commission, including the applicant, cooperated in the review investigation.

21 The Commission carried out verification visits at the premises of six Union producers and of two users in the European Union.

22 By letter of 30 April 2018, the Commission sent the applicant the general disclosure document setting out its analysis of the main facts and considerations in support of extending the anti-dumping measures for an additional period of five years.

23 On 14 May 2018, the applicant sent its observations on the general disclosure document to the Commission.

24 On 12 June 2018, the applicant sent an email to the Commission asking it whether, following its observations, the Commission intended to adopt a revised general disclosure document.

25 By email of 15 June 2018, the Commission confirmed that the applicant’s observations had been analysed and that it would address them in the future regulation.

26 On 28 June 2018, the Commission adopted Implementing Regulation (EU) 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 the Basic Regulation (OJ 2018 L 164, p. 14, ‘the Contested Regulation’).

27 First, with regard to the existence of dumping, the Commission calculated the normal value pursuant to Article 2(7)(a) of the Basic Regulation, which is applicable to imports from non-market economy countries. After considering Argentina as an analogue country and inviting two Argentinian producers to cooperate, it was found that one of those producers had ceased to produce the product under review and that the other had declined to cooperate. In the absence of satisfactory cooperation from any other potential analogue country producer, the Commission determined the normal value on ‘any other reasonable basis’, as is provided for in the final clause of the first subparagraph of Article 2(7)(a) of the Basic Regulation. More specifically, the Commission calculated the normal value on the basis of information provided in the expiry review request relating to the prices of domestic invoices of the product at issue from one Argentinian producer. In view of the fact that the product at issue was manufactured in Argentina using the natural process, whereas in the People’s Republic of China the cheaper synthetic process was used, the Commission proceeded to make some adjustments to take into account the cost differences in the production methods.

28 Due to the non-cooperation of the Chinese exporting producers, including the applicant, pursuant to Article 18 of the Basic Regulation, the Commission made its conclusions ‘on the basis of the facts available’ and therefore established the export prices on the basis of the database referred to in Article 14(6) of the Basic Regulation. In the light of the foregoing, the Commission found that the applicant’s and Ninghai Organic’s weighted average dumping margin exceeded 70%. In view of the negligible imports of the Chinese exporting producers subject to the residual anti-dumping duty, the Commission did not calculate a dumping margin for them.

29 Accordingly, the Commission concluded that the dumping had continued over the review investigation period. Furthermore, in the absence of cooperation and therefore on the basis of the facts available, it found there to be a strong likelihood of a continuation of dumping by the exporting producers subject to the measures (excluding Hangzhou Bioking) should the measures be allowed to expire. In particular, the expiry of the measures would likely result in a significant increase of exports to the Union at significantly dumped prices.

30 Secondly, as regards injury, the Contested Regulation considered that seven of the nine Union producers represented a major proportion of the total Union production of the like product, namely more than 60% of that production. Therefore, the seven producers in question were considered to be the ‘Union industry’ within the meaning of Article 4(1) and Article 5(4) of the Basic Regulation. Following examination of the indicators of injury to the Union industry for the purposes of Article 3(5) of the Basic Regulation, an examination conducted on the basis of verified information collected from the cooperating producers, the Contested Regulation concluded that the anti-dumping measures adopted had not fully achieved the desired effects and that the Union industry remained vulnerable to the injurious effects of dumped imports in the Union market.

31 The Contested Regulation examined the likelihood of recurrence of injury should the measures be allowed to expire, in accordance with Article 11(2) of the Basic Regulation. In view of the non-cooperation of the exporting producers, the Commission relied on the information available in accordance with Article 18 of the Basic Regulation. Following that analysis, the Contested Regulation concluded that the expiry of the measures would in all likelihood result in an increase of dumped imports, resulting in downwards pressure on Union industry prices and a further worsening of the already dire economic situation of that industry. The Contested Regulation therefore concluded that the expiry of the measures would in all likelihood result in the recurrence of injury to the Union industry.

32 Third, the Commission examined whether maintaining the existing anti-dumping measures would be contrary to the interest of the Union as a whole and concluded that that was not the case.

33 In the light of the foregoing, the Contested Regulation maintained the definitive anti-dumping duties of 8.3% on imports of products manufactured by Ninghai Organic, 10.1% on imports of products manufactured by the applicant and 34.9% on imports of products by any other Chinese exporting producer with the exception of Hangzhou Bioking.

34 By application lodged at the General Court Registry on 12 September 2018, the applicant brought the present action.

35 By documents lodged at the General Court Registry on 20 December 2018, Distillerie Bonollo, Industria Chimica Valenzana and Caviro Distillerie sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

36 By order of 8 May 2019, Changmao Biochemical Engineering v Commission (T‑541/18, not published, EU:T:2019:317), the President of the Eighth Chamber granted Distillerie Bonnollo, Industria Chimica Valenzana and Caviro Distillerie leave to intervene.

38 The applicant lodged its observations on that statement within the deadlines set.

39 Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was, consequently, assigned.

40 The parties presented oral argument and replied to the oral questions put by the General Court at the hearing on 2 July 2020.

44 In support of its action, the applicant raises, in essence, five pleas in law alleging, first, that the Commission erred in law by using the analogue country methodology in order to calculate the normal value; second, errors of law and manifest errors of assessment committed in the determination of the vulnerability of the Union industry; third, manifest errors of assessment concerning the likelihood of recurrence of injury; fourth, infringement of the rights of the defence; and, fifth, a failure to state reasons.

The errors of law relating to the use of the analogue country methodology in order to calculate the normal value

45 In the context of the first plea in law, the applicant claims that the Commission erred in law by applying the analogue country methodology in order to calculate the normal value. The applicant submits that Article 22(a) of the Basic Regulation affords a higher hierarchical position to the special rules laid down in the international agreements concluded between the European Union and third countries as compared with the Basic Regulation. In particular, it adds that, under Article 15(d) read together with Article 15(a)(ii) of the Protocol of Accession of the People’s Republic of China to the WTO (‘the Accession Protocol’), the analogue country methodology could no longer be applied to imports from that country fifteen years after the date of accession, that is to say with effect from 11 December 2016. The applicant claims that Article 15(d) of the Accession Protocol was an unconditional and, mandatory provision. Despite that prohibition, the expiry review procedure was initiated after that date and the Commission applied the analogue country methodology rather than using the domestic prices and production costs in the People’s Republic of China to calculate the normal value.

46 The applicant therefore claims that Article 2(7) of the Basic Regulation, applied by the Commission to determine the normal value on the basis of the analogue country methodology, could not be applied in the present case. The Commission should have followed the procedure laid down in Article 2(1) to (6) of the Basic Regulation, having recourse namely, to the domestic production costs and prices in the People’s Republic of China, which would have had an impact on the findings made in the Contested Regulation. The Commission is no longer allowed to apply the analogue country methodology in order to artificially inflate the dumping margins of the Chinese exporting producers.

47 The applicant states that, in cases of conflict between the Accession Protocol and the Basic Regulation, the Union must respect its obligations flowing from the WTO agreements. Furthermore, it submits that, according to the case-law, when conducting anti-dumping investigations, the Commission must comply with the provisions of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 11), and the Agreement on Implementation of Article VI of GATT (OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’), in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3) (together ‘the WTO Agreements’).

48 The applicant adds that it is not necessary to examine the direct effect of the WTO provisions at issue since the Basic Regulation was adopted to implement in EU law the Anti-Dumping Agreement and the GATT, to which it explicitly refers.

49 Moreover, the applicant observes that Article 2(7) of the Basic Regulation was amended by Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 amending Regulation 2016/1036 and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union (OJ 2017 L 338, p. 1), but that the latter regulation was however not applied. The fact that Article 2(7) of the Basic Regulation was amended by Regulation 2017/2321 suggests, in the applicant’s view, that the Basic Regulation ceased to have any legal basis following the expiry of the Accession Protocol and could no longer be applied to goods originating in the People’s Republic of China.

50 Furthermore, the applicant states that the consistency of Article 2(7) of the Basic Regulation, in the version thereof in force at the time, with the Accession Protocol has been challenged before the WTO Dispute Settlement Body (Case DS 516 ‘European Union – Measures Related to Price Comparison Methodologies’). It also submits that the WTO Dispute Settlement Body has already established, in Case DS 397 ‘European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’, that the rules laid down in Article 15(a)(ii) of the Accession Protocol expired fifteen years after the date of accession.

51 In its observations on the statement in intervention, the applicant states that the expiry of the period provided for in the Accession Protocol did not require any legislative action on the part of the Union because the Commission could simply apply the rules laid down in Article 2(1) to (6) of the Basic Regulation to the imports originating in the People’s Republic of China.

52 In response to questions put by the General Court at the hearing, the applicant stated that it did not claim that the WTO Agreements or the Accession Protocol generally had direct effect in EU law. Nevertheless, in its view, in circumstances such as those of the present case, it is possible, by way of exception, to rely on those rules by claiming that the relevant provisions of the Accession Protocol had expired.

53 In addition, the applicant takes the view that the Commission infringed Article 2(1) and (2) of the Anti-Dumping Agreement and Article VI(1) of the GATT.

54 The Commission, supported by the interveners, contends that the applicant’s arguments should be rejected.

55 In the context of the first plea, the applicant submits, in essence, that Article 2(7) of the Basic Regulation, in the version in force at the time, could not be applied to the expiry review procedure, since the transitional period for the application of the analogue country methodology to imports originating in the People’s Republic of China had expired, under Article 15(a)(ii), read together with Article 15(d) of the Accession Protocol.

56 It should be borne in mind, in the first place, that it is clear from Article 216(2) TFEU that international agreements concluded by the Union are binding upon the EU institutions and, consequently, prevail over the measures which they lay down (judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 82). In the present case, since the Union is a party to the Anti-Dumping Agreement and to the GATT, those agreements are in fact binding on the EU institutions (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 83).

57 It follows from settled case-law that the provisions of an international treaty to which the European Union is a party can be invoked in support of an action for the annulment of an act of EU secondary law only where the nature and purpose of the treaty in question do not preclude this and where the provisions relied upon appear, as regards their content, to be unconditional and sufficiently precise. Thus, it is only when both those conditions are met that such provisions may be relied upon before the EU courts as a criterion for assessing the legality of an EU measure (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 37; see also, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 84).

58 It has repeatedly been held that, given their nature and purpose, WTO agreements are not, in principle, among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 38, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 85).

59 To accept that the courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if accepted, would risk introducing an imbalance in the application of the WTO rules (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 39, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 86).

60 However, in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, it has been accepted that it is for the Courts of the European Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements. The first such situation is where the European Union intended to implement a particular obligation assumed in the context of those agreements and the second is where the EU measure at issue refers explicitly to specific provisions of those agreements (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 40 and 41, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 87).

61 Nevertheless, it is settled case-law that the primacy of international agreements concluded by the European Union over secondary EU legislation means that such acts must, so far as is possible, be interpreted in a manner that is consistent with those agreements (see, to that effect, judgments of 7 June 2007, Řízení Letového Provozu, C‑335/05, EU:C:2007:321, paragraph 16, and of 10 November 2011, X and X BV, C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 44). It has thus been held that the provisions of the Basic Regulation must be interpreted, so far as possible, in the light of the corresponding provisions of the Anti-Dumping Agreement (judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 54).

62 It is in the light of those principles that the present case must be examined.

63 In the present case, the applicant is attempting to rely on the Accession Protocol in order to prevent the application of Article 2(7) of the Basic Regulation, in the version in force at the time. As is apparent from paragraph 58 above, the WTO agreements, including the Accession Protocol, are not, in principle, among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed. Moreover, in reply to questions put by the General Court, the applicant confirmed at the hearing that it did not claim that the WTO agreements or the Accession Protocol had direct effect in general.

64 Besides, there is nothing to indicate that any of the two exceptional situations referred to in paragraph 60 above applies.

65 In that regard, it should be borne in mind that Article 2(7) of the Basic Regulation introduces a special regime laying down detailed rules for the calculation of normal value for imports from non-market-economy countries, including the People’s Republic of China. As regards those imports, Article 2(7)(a) provides that normal value is to be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the European Union, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the European Union for the like product, duly adjusted if necessary to include a reasonable profit margin. Article 2(7)(b) of the Basic Regulation provides that, in anti-dumping investigations concerning imports originating in the People’s Republic of China, normal value is to be determined in accordance with paragraphs 1 to 6 of that Article if it is established that market economy conditions laid down in Article 2(7)(c) of the Basic Regulation, prevail for that or those producers, in respect of the manufacture and sale of the like product. Therefore, the case-law has established that Article 2(7) of the Basic Regulation is the expression of the EU legislature’s intention to adopt, in that sphere, an approach specific to the EU legal order (see, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 47 and 48).

66 That finding is not called in question by the fact that recital 3 of the Basic Regulation states that the rules of the Anti-Dumping Agreement should be reflected in EU legislation ‘to the best extent possible’. That expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of the Anti-Dumping Agreement when adopting the Basic Regulation, it did not, however, show the intention of transposing each of those rules in that regulation (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52).

67 Therefore, the applicant cannot rely on the Accession Protocol, in the absence of direct effect thereof, to object to the application of Article 2(7) of the Basic Regulation.

68 Lastly, it must be held that the applicant cannot rely on the obligation to interpret national law in conformity with EU law, referred to in paragraph 61 above, in view of the wording of Article 2(7) of the Basic Regulation, in the version in force at the time. That provision established a specific method of calculation for imports from the People’s Republic of China, expressly designated. In those circumstances, contrary to what the applicant claims, the Commission could not confine itself to applying in the present case the rules laid down in Article 2(1) to (6) of the Basic Regulation, in so far as that would have been contrary to the unequivocal wording of Article 2(7) of the Basic Regulation, in the version in force at that time.

69 In the light of the foregoing considerations, the applicant is not justified in challenging the use of the analogue country method in order to calculate the normal value.

70 None of the arguments put forward by the applicant can cast doubt on that finding.

71 First, it is necessary to reject the argument that, in the event of a contradiction, the Accession Protocol must prevail over the Basic Regulation in order to ensure that the European Union complies with its international commitments for the reasons stated in paragraphs 63 to 68 above.

72 Moreover, Article 22(a) of the Basic Regulation, according to which the regulation does not exclude the application of special rules laid down in agreements concluded between the European Union and third countries, does not establish any hierarchy of rules between itself and international agreements in favour of the latter, but merely reserves the possibility that international agreements may provide for special rules, which is without prejudice to the fact that the primacy of international agreements concluded by the European Union over acts of secondary EU legislation requires that the latter be interpreted, in so far as possible, in compliance with those agreements, as is apparent from the case-law referred to in paragraph 61 above.

73 Secondly, contrary to what is claimed by the applicant, in view of the fact that the principle of consistent interpretation cannot lead to an interpretation of EU law that is contrary to its unequivocal wording, it is necessary to examine the direct effect of the Accession Protocol. As is apparent from paragraphs 62 to 66 above, the Accession Protocol does not have any direct effect capable of being relied on in respect of Article 2(7) of the Basic Regulation. Moreover, it should be specified that what must be analysed is the direct effect of the Accession Protocol in the light of Article 2(7) of the Basic Regulation, and not the direct effect of the Anti-Dumping Agreement or the GATT in general.

74 In response to the questions put by the General Court at the hearing concerning the case-law cited in paragraph 60 above, the applicant claimed that the case-law had to provide for a third exception enabling it to rely directly on the provisions of an international agreement, namely where the international agreement in question allows a derogation from the general rule and EU law makes use of that power, as in the present case. Apart from the fact that it appears to be a mere reformulation of the first exception provided for in the case-law cited in paragraph 59 above, which does not apply in the present case for the reasons stated above, it is sufficient to observe that, in the light of the settled case-law of the Court of Justice, the General Court does not consider it appropriate to recognise the existence of a new exception as the applicant has requested.

75 Thirdly, the fact that Article 2(7) of the Basic Regulation was amended by Regulation 2017/2321 is irrelevant to the present case in so far as it was not applicable ratione temporis to the present case and, contrary to what the applicant suggests, it cannot mean that Article 2(7) of the Basic Regulation in its earlier version no longer had a legal basis. In that regard, it is appropriate to point out that, as is apparent from the Basic Regulation itself, its legal basis is Article 207(2) TFEU and not the Accession Protocol, the Anti-Dumping Agreement or the GATT.

76 Fourthly, as regards the fact that the compatibility of Article 2(7) of the Basic Regulation with the Accession Protocol was disputed by the People’s Republic of China before the WTO Dispute Settlement Body, it is sufficient to note that that argument is ineffective in so far as the procedure in Case DS 516 ‘European Union – Measures Related to Price Comparison Methodologies’ has expired without reaching any conclusions, as the Commission and the interveners stated at the hearing.

77 Finally, with respect to the argument that the WTO Dispute Settlement Body has already established, in Case DS 397 ‘European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ that the rules laid down in Article 15(a)(ii) of the Accession Protocol expired fifteen years after the date of accession, it should be borne in mind that a trader cannot be permitted to plead before the Courts of the European Union that an EU act is incompatible with a ruling of the WTO Dispute Settlement Body, other than in the sets of circumstances referred to in paragraph 60 above concerning WTO substantive rules (see, to that effect, judgments of 10 November 2011, X and X BV, C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 37 and of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 46). In the present case, the applicant does not put forward any argument from which it can be concluded that, by adopting Article 2(7) of the Basic Regulation, the European Union intended to implement a particular obligation arising from the report of the WTO Dispute Settlement Body or that it expressly referred to that report in the Basic Regulation. The applicant’s argument must therefore be rejected.

78 Fifthly, as regards the alleged infringement of Articles 2(1) and (2) of the Anti-Dumping Agreement and Article VI(1) of the GATT, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 76(d) of the Rules of Procedure, all applications are to contain the subject matter of the dispute and a brief statement of the pleas in law on which the application is based. According to case-law, that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action, if appropriate, without other information in support (judgment of 28 January 2009, Centro Studi Manieri v Council, T‑125/06, EU:T:2009:19, paragraph 71). Moreover, the mere invocation of the principle of EU law which is alleged to have been infringed, without indicating the matters of fact and of law on which that allegation is based, does not satisfy the requirements of Article 76(d) of the Rules of Procedure (judgment of 3 May 2007, Spain v Commission, T‑219/04, EU:T:2007:121, paragraph 89). In the present case, the applicant has merely referred to the infringement of the provisions in question without putting forward any arguments whatsoever in support of its claim. Consequently, in the light of the principles outlined above, that argument must be rejected as inadmissible.

79 In the light of the foregoing, the first ground of appeal must be rejected as being in part inadmissible and in part unfounded.

The errors of law and manifest errors of assessment concerning the vulnerability of the Union industry

80 By its second plea in law, the applicant claims that the Commission committed several errors of law and manifest errors of assessment by finding that the Union industry remained vulnerable to the injurious effects of dumped exports on the EU market. In particular, it argues, first, that the Commission wrongly failed to take account of the information relating to Distillerie Mazzari in order to determine the vulnerability of the Union industry and, second, that the vulnerability of the Union industry was ‘self-inflicted’.

81 With regard to the complaint regarding the failure to consider the information relating to Distillerie Mazzari, firstly, the applicant submits that it is clear from Article 4(1) of the Basic Regulation that the vulnerability of the Union industry must be determined on the basis of the information submitted by the Union producers who cooperated in the investigation if they represent a major proportion of Union production, as well as the information available to the Commission relating to non-cooperating producers. In that regard, the applicant observes that the case-law has excluded that the Commission had to limit its examination to the information provided by the cooperating Union producers (judgment of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317, paragraph 257). However, in the present case, the Commission confined its examination to the information relating to the seven cooperating Union producers, who represented 60% of Union production, and disregarded the information available to it regarding Distillerie Mazzari, which was the main Union producer accounting for approximately 30% of total production. The applicant adds that the Commission did, however, have at its disposal information provided by Distillerie Mazzari in the context of the investigation which led to the adoption of the Hangzhou Bioking Decision. In addition, the periods covered by the Contested Regulation and by the Hangzhou Bioking Decision overlapped significantly, namely for almost 50% of the total period.

82 The applicant claims that if the Commission had taken account of the information relating to Distillerie Mazzari, it would have reached a different conclusion regarding the vulnerability of the Union industry because the other Union operators were smaller with lower performance levels. According to the applicant, the judgment of 15 March 2018, Caviro Distillerie and Others v Commission (T‑211/16, EU:T:2018:148) confirms that view.

83 The applicant observes that the Commission itself had initially taken the view that it was appropriate to include Distillerie Mazzari in the sample of Union producers.

84 In its observations on the statement in intervention, the applicant states that it does not contest that the seven cooperating Union producers constitute a major proportion of the Union industry. It merely disputes that, in the circumstances of the present case, those seven producers are sufficiently representative of the Union industry in so far as the largest and most efficient producer was not taken into account.

85 In the applicant’s view, in addition, the failure to take account of Distillerie Mazzari in the Contested Regulation constitutes an unjustified change in methodology for the assessment of the state of the Union industry as compared with the Hangzhou Bioking Decision.

86 Secondly, the applicant claims that the Commission also infringed Article 11(2) of the Basic Regulation, which requires that the Commission’s findings are based on evidence relating to the Union industry as a whole or a major part thereof.

87 Thirdly, the applicant argues that the Commission infringed Article 11(3) of the Anti-Dumping Agreement, such as interpreted by the WTO Dispute Settlement Body, which requires the investigating authorities to examine all relevant facts.

88 Fourthly, the applicant takes the view that the Commission infringed the principle of good administration by examining the vulnerability of the Union industry without taking into account the information relating to Distillerie Mazzari, even though it could not have been unaware that its findings would have been different if it had done so.

89 By its second complaint, the applicant submits that, even if the vulnerability of the Union industry were established quod non, the Commission should have found that such vulnerability was ‘self-inflicted’ on account of the investments made to increase Union production capacity even though consumption was declining. Accordingly, the investments intended to increase the Union industry’s production capacity placed pressure on prices and reduced the profitability of the industry, the return on investment and cash flows. Furthermore, the applicant claims that there is an unjustified discrepancy as regards the estimates of EU consumption for 2013 between the Hangzhou Bioking Decision and the Contested Regulation.

90 The applicant adds that it is clear from the Hangzhou Bioking Decision that, when Distillerie Mazzari has been taken into account, the production capacity of the Union industry remained stable over a period of time that substantially overlapped with that covered by the Contested Regulation. It follows from that fact that, in the Hangzhou Bioking Decision, the Union industry demonstrated healthy results in terms of cash flows, return on investment and profitability.

91 Finally, the applicant submits that the Commission also infringed Article 3(2) of the Basic Regulation and Article 3(1) of the Anti-Dumping Agreement.

92 The Commission, supported by the interveners, contends that the applicant’s arguments should be rejected.

93 As a preliminary point, it should be borne in mind that, according to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (judgments of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40; of 11 February 2010, Hoesch Metals and Alloys, C‑373/08, EU:C:2010:68, paragraph 61, and of 10 July 2019, Caviro Distillerie and Others v Commission, C‑345/18 P, not published, EU:C:2019:589, paragraph 14).

94 This broad discretion covers, inter alia, the determination of the existence of injury caused to the Union industry in the context of an anti-dumping procedure. The judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is particularly the case as regards the determination of the factors injuring the Union industry in an anti-dumping investigation (judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46, and of 10 July 2019, Caviro Distillerie and Others v Commission, C‑345/18 P, not published, EU:C:2019:589, paragraph 15).

95 The General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it (judgments of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 64, and of 10 July 2019, Caviro Distillerie and Others v Commission, C‑345/18 P, not published, EU:C:2019:589, paragraph 16).

96 Moreover, in reviewing the legality of acts under Article 263 TFEU, the Union courts cannot under any circumstances substitute their own reasoning for that of the author of the contested act (judgments of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 56, and of 10 July 2019, Caviro Distillerie and Others v Commission, C‑345/18 P, not published, EU:C:2019:589, paragraph 17).

97 Under Article 11(2) of the Basic Regulation, an anti-dumping measure may be maintained beyond the five-year period referred to in that provision only if its expiry would be likely to lead to a continuation or recurrence of dumping and injury.

98 Article 4(1) of the Basic Regulation defines the concept of Union industry, in relation to which injury is examined, as being the Union producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4) of that regulation, of the total production of those products. That provision states that a complaint is to 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, it is specified that no investigation is to be initiated where Union producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the Union industry.

99 It is apparent from the case-law that the institutions enjoy a broad discretion as regards the choice between the two options of that alternative (judgment of 11 July 2013, Philips Lighting Poland and Philips Lighting v Council, T‑469/07, EU:T:2013:370, paragraph 92). The Union institutions cannot be required to define exclusively the Union industry by means of the first option provided for in Article 4(1) of the Basic Regulation, that is to say, by including in it all the Union producers. In particular, they might prefer the second option on the ground that they were unable to secure the cooperation of certain Union producers (judgment of 11 July 2013, Philips Lighting Poland and Philips Lighting v Council, T‑469/07, EU:T:2013:370, paragraph 95).

100 It must be noted that the thresholds of 50% and 25% in Article 5(4) of the Basic Regulation refer to different groups of Union producers. The 50% threshold relates solely to the relative weight of the Union producers supporting the complaint within the group of Union producers supporting or opposing it. By contrast, the 25% threshold refers to ‘total production of the like product produced by the Union industry’ and relates to the percentage of Community producers out of that total production which support the complaint. That 25% threshold alone is therefore relevant to determining whether those producers represent a ‘major proportion’ of the total production of the like product produced by the Union industry within the meaning of Article 4(1) of the Basic Regulation. In those circumstances, it must be held that Article 4(1) and Article 5(4) of the Basic Regulation can be understood as referring only to the minimum threshold of 25% (judgment of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraphs 66 to 69).

101 It is in the light of those considerations that the present case must be examined.

102 By the first complaint of the second plea, the applicant submits that the Commission was wrong not to take into account the information concerning Distillerie Mazzari in order to establish the vulnerability of the Union industry.

104 In that regard, it should be noted that it is apparent from recital 94 of the Contested Regulation that there were nine producers of the like product in the European Union. Of those producers, seven producers representing more than 60% of the total Union production cooperated in the investigation. Therefore, the Commission considered that those seven producers represented a major proportion of total Union production and therefore constituted the ‘Union industry’ for the purposes of the Contested Regulation, within the meaning of Article 4(1) of the Basic Regulation, read in conjunction with Article 5(4) of that regulation. Moreover, it is apparent from recitals 96 and 98 of the Contested Regulation that the Commission examined the injury indicators at the level of the Union industry, namely the seven producers which cooperated with the investigation, on the basis of verified information gathered from those producers. In addition, in recital 98 of the Contested Regulation, the Commission states that the values of certain indicators differ in the Contested Regulation and in the Hangzhou Bioking Decision, given that the periods at issue overlapped only in part and that the injury indicators, in the Hangzhou Bioking Decision, had been analysed on the basis of the data of all Union producers.

105 In the light of the principles set out in paragraphs 93 to 100 above, and taking into account, in particular, the broad discretion enjoyed by the EU institutions in defining the Union industry as either all Union producers or those representing a major proportion of Union production, the Contested Regulation cannot be criticised in so far as it chose to define the Union industry by reference to seven producers accounting for more than 60% of the total Union production and which cooperated with the investigation. In that regard, it is useful to recall that it has been held that a portion of Union production very close to 50% of total Union production clearly constituted a major proportion of the Union’s production (see, to that effect, judgment of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraph 72).

106 Therefore, the Commission cannot be obliged to define the Union industry by reference to the Union producers as a whole. Moreover, it cannot be obliged to include in the definition of the Union industry a producer which has decided not to cooperate in the investigation, as is the case of Distillerie Mazzari. In the absence of verified data provided by the producer itself, it is not clear how the Commission is supposed to be aware of the data relating to the producer at issue concerning injury indicators such as, for example, production capacity, utilisation rate, employment level, productivity, employment costs, stock volume, profitability, cash flow, investments or return on investments.

107 It is nevertheless useful to point out that the Commission sometimes used in the Contested Regulation certain data relating to all Union producers, which it was able to draw from the replies to the questionnaire, from the request for an expiry review of the measures or from certain databases. Thus, for example, it took into account the total sales volume and market shares of all Union producers.

108 In the light of the foregoing, it must be held that the Commission did not err in law by not taking into account the information concerning Distillerie Mazzari. None of the arguments put forward by the applicant can cast doubt on that conclusion.

109 First, as regards the argument that the Commission had information provided by Distillerie Mazzari in the context of the investigation which led to the adoption of the Hangzhou Bioking Decision, it is sufficient to note that the periods covered by that investigation and by the present investigation are different. The overlap covered less than 50% of the relevant period for the Contested Regulation. Accordingly, it must be held that the Commission did not have information concerning Distillerie Mazzari which it could use for the whole of the relevant period for the purposes of the Contested Regulation.

110 Second, it should be noted that the argument relying on the judgment of 28 October 2004, Shanghai Teraoka Electronic v Council (T‑35/01, EU:T:2004:317, paragraph 257), is based on a misreading of the case-law. The paragraph of the judgment cited by the applicant merely states that the Commission could take into account certain structural elements such as mergers of companies not forming part of the Union industry thus defined in the regulation in question. However, that judgment does not establish an obligation to take such factors into account. In addition, as indicated in paragraph 107 above, the Contested Regulation took into account certain data relating to all Union producers, concerning, inter alia, total sales volumes and market shares.

111 Also, the case-law establishes that it is not necessary, or indeed appropriate, to include in the definition of the Union industry producers which did not cooperate in the investigation (see, to that effect, judgments of 15 November 2018, Baby Dan, C‑592/17, EU:C:2018:913, paragraph 81, and of 11 July 1996, Sinochem Heilongjiang v Council, T‑161/94, EU:T:1996:101, paragraph 89).

112 Third, it is necessary to reject as purely speculative the argument that the Commission would have reached a different conclusion concerning the injury had it taken into account information concerning Distillerie Mazzari. As stated in paragraph 109 above, the Commission did not have information concerning Distillerie Mazzari relating to the whole of the relevant period. Therefore, it is not possible to know with certainty what its conclusions would have been if it had had that information. In any event, as the Commission correctly submits, in view of the fact that the Contested Regulation examined injury relating to a major proportion of Union production representing more than 60% of that production, it would appear that the overall conclusions should not be significantly different if the information concerning Distillerie Mazzari had been taken into account.

113 Fourth, the fact that the Commission initially envisaged including Distillerie Mazzari in the sample of Union producers is irrelevant. Distillerie Mazzari decided not to cooperate and the Commission did not have the power to compel it to do so.

114 Fifth, contrary to the applicant’s view, the failure to take account of Distillerie Mazzari in the Contested Regulation cannot be considered to constitute an unjustified change in methodology for the assessment of the state of the Union industry as compared with the Hangzhou Bioking Decision. It should be borne in mind that, under Article 11(9) of the Basic Regulation, in all review investigations, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty being imposed, with due account being taken of Articles 2 and 17 of the Basic Regulation. In that regard, it is sufficient to note that, first, the investigation which led to the adoption of the Hangzhou Bioking Decision was not the investigation which led to the imposition of the duty in the present case and, second, the circumstances changed between the investigation which led to the adoption of the Hangzhou Bioking Decision and the investigation which led to the adoption of the Contested Regulation in that Distillerie Mazzari decided not to cooperate any longer.

115 Sixth, it is necessary to reject the argument alleging infringement of Article 11(2) of the Basic Regulation, according to which the Commission’s findings must be based on evidence concerning the Union industry as a whole or a substantial part of it. As was stated in paragraphs 105 and 106 above, the Commission is not obliged to define the Union industry by reference to all Union producers. Moreover, the Commission correctly defined the Union industry by reference to seven producers representing a major proportion of Union production.

116 Seventh, even if Article 11(3) of the Anti-Dumping Agreement could be relied on as such before the Courts of the European Union, it is sufficient to note that there is nothing to indicate that the Commission has failed to examine all the relevant factors in the present case, taking into account the considerations set out in paragraphs 104 to 107 above.

117 Eighth, the alleged infringement of the principle of good administration must be rejected on the merits, irrespective of the objections raised by the Commission regarding its admissibility. In the light of the considerations set out in paragraphs 104 to 107 above, the Commission cannot be criticised for having infringed in the present case its obligation to conduct the procedure diligently and impartially and, therefore, the principle of good administration.

118 By the second complaint of the second plea, the applicant claims that the vulnerability of the Union industry was ‘self-inflicted’, owing, in particular, to the investments in production capacity made by the applicant during the relevant period. In essence, the applicant submits that the Union industry’s own conduct broke the causal link between the alleged dumping and the alleged injury.

119 In that regard, it is apparent from the case-law that, in the context of an expiry review pursuant to Article 11(2) of the Basic Regulation, in order to be able to extend the measures, the EU institutions must not only establish a link between the expiry of the anti-dumping measure, on the one hand, and the continuation or recurrence of dumping and injury, on the other, but they must also assess whether other known factors contributed directly to the injury suffered by the Union industry so that the injury caused by those other factors was not attributed to the imports which were the subject of the dumping. It is for the EU institutions to ascertain whether those other factors were not such as to break the causal link between the imports at issue and the injury suffered by the Union industry (see, to that effect, judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraphs 96, 106 and 107). It has thus been established that any injury deriving in particular from the Union industry’s own conduct must be rejected (judgments of 11 June 1992, Extramet Industrie v Council, C‑358/89, EU:C:1992:257, paragraph 16, and of 11 July 1996, Sinochem Heilongjiang v Council, T‑161/94, EU:T:1996:101, paragraph 86).

120 In the present case, it is apparent from recital 115 of the Contested Regulation that the Commission took into account the fact that the Union industry, in particular one producer, had made investments which had increased its production capacity by 6% during the relevant period. It must therefore be held that the Commission did not fail to take that factor into consideration. As regards the conclusions to be drawn from that increase in production capacity, it is first necessary to recall the Commission’s broad discretion in the matter, as is apparent from paragraph 93 above. In addition, it should be noted that the Commission relied on a series of factors, including the increase in production capacity, in order to conclude that the European Union was vulnerable, as is apparent in particular from recitals 112 to 139 of the Contested Regulation. Accordingly, the applicant cannot merely propose its interpretation of the economic factors which the Commission took into account, but must state the reasons why it should have reached a different conclusion on the basis of those factors. In addition, according to the applicant, that is the only factor attributable to the Union industry. Moreover, an increase of 6% seems relatively modest. In addition, as the Commission submitted at the hearing, it is apparent from recital 135 of the Contested Regulation that a significant part of the investments was linked to the relocation of activities, made necessary for regulatory reasons. Finally, it should be noted that, according to recitals 100 and 127 of the Contested Regulation, the demand for the product under review is dependent on external elements, such as the climatic and harvesting conditions affecting the consumption of the product in the wine sector or the volume of construction output in that sector. Therefore, the Union industry cannot be criticised for having made investments primarily linked to regulatory reasons which, incidentally, increased production capacity very slightly and did not anticipate a fall in demand which fluctuated between 7% and 11% during the relevant period.

121 Lastly, as regards the discrepancy identified by the applicant with regard to EU consumption in 2013, depending on whether it is the Hangzhou Bioking Decision or the Contested Regulation, first, it is doubtful that it could have a decisive effect on the Commission’s findings, given its broad discretion, when it concerns the values of a single factor in a single year. Second, and in any event, it should be noted that both the Contested Regulation and the Hangzhou Bioking Decision are based on different estimations, as is apparent from recital 99 and Table 1 of the Contested Regulation and from recital 95 and Table 1 of the Hangzhou Bioking Decision.

122 In the light of all the foregoing, the second complaint of the second plea must be rejected and, therefore, the second plea must be dismissed in its entirety.

Manifest errors of assessment concerning the likelihood of recurrence of injury

123 In the context of the third plea in law, the applicant claims that the Commission committed manifest errors of assessment by finding there to be a likelihood of recurrence of injury if the anti-dumping measures were to expire, in breach of Article 3(2) and Article 11(2) of the Basic Regulation. This plea in law is divided into two complaints.

124 In the first complaint of the third plea in law, the applicant criticises the Commission for having failed to examine, or at the very least not having examined properly, all of the factors relevant to the analysis of the likelihood of recurrence of injury.

125 First, the applicant takes the view that the Commission disregarded the impact of the imports from Hangzhou Bioking, the only Chinese exporting producer not subject to the anti-dumping measures and responsible for the largest share of the imports originating in the People’s Republic of China into the European Union.

126 Second, the applicant claims that the Commission failed to consider the effects of the favourable or unfavourable climatic conditions on the supply of calcium tartrate, which is one of the main raw materials for the manufacture of natural tartaric acid and therefore has an impact on the price of that acid. According to the applicant, grape harvests and the price of natural tartaric acid are inversely related: the price of natural tartaric acid increases when grape must production decreases and vice versa. Accordingly, whereas the supply, production cost and price of natural tartaric acid are continuously subject to cyclical climatic conditions, the production of synthetic acid is not subject to any influence. In that regard, the applicant points out that the prices of natural tartaric acid were 17% higher in 2017 and 58% higher in the first six months of 2018 as compared with the Union industry price during the review period, in particular, on account of the climatic conditions in the European Union, which also drove up the price of synthetic tartaric acid. Even though those developments occurred after the review period, they demonstrate the arbitrary nature of the Commission’s findings about the likelihood of recurrence of injury.

127 In its observations on the statement in intervention, the applicant adds that this is Eurostat data which should have been known to the Commission ex officio. Furthermore, it states that it is not criticising the Union industry for having failed to foresee climatic developments, but that it is critical of the Commission’s failure to recognise the impact of climatic changes on natural tartaric acid production and, as a result, on the performance of the Union industry.

128 Third, the Commission disregarded the fact that the use of synthetic tartaric acid was prohibited in the European Union for the wine and pharmaceutical industries, which means that it is impossible for injury to recur in relation to the supply to those industries, which represent a substantial part of tartaric acid sales in the European Union. Furthermore, the applicant claims that the production volume of the Union industry is neither sufficient nor reliable for other users of tartaric acid in the European Union, such as the food and construction industries, which can use both natural and synthetic tartaric acid. For those operators, imports from the People’s Republic of China mean that the production shortfalls of the Union industry can be made up and security of supply assured.

129 By the second complaint of the third plea in law, the applicant criticises the Commission for having found the likelihood of recurrence of injury in the Contested Regulation whereas, in the Hangzhou Bioking Decision, it took the view that the imports from that exporting producer, which were not subject to anti-dumping duties, did not cause material injury. According to the applicant, in view of the comparability of the situations and the conduct of the Chinese exporting producers subject to the anti-dumping measures and of Hangzhou Bioking, the conclusions drawn in the context of the Hangzhou Bioking Decision show that the expiry of the anti-dumping duties could not lead to a recurrence of injury. Such a conclusion is even more logical given that imports of Hangzhou Bioking’s products into the European Union represented the largest share of imports originating in the People’s Republic of China, given that its production capacity was higher than that of the other Chinese exporting producers and given that Hangzhou Bioking even planned to increase its production capacity, unlike the applicant. The applicant adds that Hangzhou Bioking’s spare production capacity alone represents between 40% and 50% of that of the exporting producers subject to the anti-dumping measures. It further points out that the price of Hangzhou Bioking’s tartaric acid imported into the European Union was almost identical to that of the exporting producers subject to the anti-dumping duties.

130 The applicant submits that the Commission should have demonstrated why the exporting producers covered by the Contested Regulation should be treated differently from Hangzhou Bioking, if only because they operate under different conditions, quod non.

131 In the light of the foregoing, the applicant submits that the Commission infringed Article 11(2) of the Basic Regulation and Article 11(3) of the Anti-Dumping Agreement because it did not proceed with an objective examination of all the relevant facts. In addition, it takes the view that the Commission infringed Article 3(2) of the Basic Regulation and Article 3(1) of the Anti-Dumping Agreement because the assessment of the state of the Union industry must be based on all factors set out in those provisions relating to material injury. Furthermore, the applicant suggests that there has been infringement of the duty to conduct the review investigation in an impartial and objective manner.

132 The Commission, supported by the interveners, contends that the applicant’s arguments should be rejected.

133 In the context of the first complaint of the third plea, the applicant submits that the Commission failed to examine, or at least failed to examine correctly, all the relevant factors for the purposes of its assessment of the likelihood of recurrence of injury, in breach of Article 3(2) and Article 11(2) of the Basic Regulation.

134 In addition to the principles recalled in paragraphs 93 to 96 above, which are also relevant for the examination of the third plea, it is useful to note that the first subparagraph of Article 11(2) of the Basic Regulation provides that a definitive anti-dumping measure is to expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury.

135 It is clear from the first subparagraph of Article 11(2) of the Basic Regulation that retention of a measure depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned. It is also clear that the mere possibility that injury or dumping might continue or recur is insufficient to justify retaining a measure; that is dependent on the likelihood of continuation or recurrence of injury or dumping being established (judgments of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraphs 96 and 97, and of 30 April 2015, VTZ and Others v Council, T‑432/12, not published, EU:T:2015:248, paragraph 21).

136 As regards the question of injury, Article 3(2) of the Basic Regulation, relied on by the applicant, provides that the determination of injury is to be based on positive evidence and is to involve an objective examination of both, first, the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products, and, second, the consequent impact of those imports on the Union industry.

137 As regards that last factor, it should be borne in mind that, according to Article 3(5) of the Basic Regulation, which is referred to by the Contested Regulation, the examination of the impact of the dumped imports on the Union industry concerned are to include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; and actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

138 In that regard, it has been held that, in the context of the overall assessment of all the relevant indices and factors required by Article 3(5) of the Basic Regulation, one or more of the factors mentioned do not necessarily give decisive guidance (judgment of 10 July 2019, Caviro Distillerie and Others v Commission, C‑345/18 P, not published, EU:C:2019:589, paragraph 50). Accordingly, Article 3(5) of the Basic Regulation gives the EU institutions broad discretion in the examination and evaluation of the various items of evidence (judgment of 15 March 2018, Caviro Distillerie and Others v Commission, T‑211/16, EU:T:2018:148, paragraph 86; see also, to that effect, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 61).

139 It is also apparent from the case-law that the finding of material injury is not necessarily incompatible with the fact that some, or even several, factors set out in Article 3(5) of the Basic Regulation show a positive trend. However, in such a situation, the EU institution in question must carry out a convincing analysis which shows that the positive development of certain factors is counterbalanced by a negative development of other factors. It cannot simply ignore a factor indicating a positive trend, but must explain the lack of relevance or importance of such a factor (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 139).

140 The arguments put forward by the applicant must be examined in the light of those arguments.

141 In the context of the present plea, the applicant disputes the findings in the Contested Regulation concerning the injury. In that regard, it should be noted that the Contested Regulation did not base the retention of the measures at issue on the continuation of material injury to the Union industry, but on the likelihood of the injury recurring.

142 In the present case, it is apparent in particular from recitals 112 to 139 of the Contested Regulation that the Commission examined the situation of the Union industry on the basis of a series of factors, such as production, production capacity and utilisation capacity, sales volume, market share, growth, employment, productivity, the size of dumping margins and the recovery of the Union industry following dumping, prices, employment costs, stocks, profitability, capital flows, investments, return on investments, as well as the ability to raise capital. In the light of that set of considerations, the Commission found that, even though certain injury indicators such as production, sales volume and market shares had shown positive trends during the period at issue, they had not had a positive impact on the general financial situation of the Union industry. In fact, according to the Contested Regulation, the Union industry’s profitability showed a strong negative trend during the relevant period, even suffering losses in 2014 and 2015. In 2016, profitability of the Union industry was only 0.8%. In addition, other financial indicators such as cash flow and return on investment also deteriorated during the period at issue. The Commission also found that the dumped imports had exerted significant pressure on the Union industry’s prices, given the average undercutting of 19% of imports by comparison with the Union industry’s prices despite the anti-dumping duties in force. Due to that price pressure, the Union industry was unable to keep its prices above the production cost. Therefore, despite the Union industry’s increased sales and market share, its profitability, cash flow and return on investments deteriorated during the relevant period. In the light of the foregoing, the Commission concluded that the Union industry remained vulnerable to the injurious effects of any dumped imports on the Union market.

143 In the light of those considerations, and having regard to the principles set out in paragraphs 93 to 96 and 134 to 139 above, the Commission cannot be criticised for having exceeded the limits of its broad discretion or for having made a manifest error in its overall assessment and weighing up all the relevant economic factors and indices having a bearing on the economic situation of the Union industry.

144 None of the arguments put forward by the applicant can call that conclusion into question.

145 First, as regards the argument that the Commission wrongly ignored the effects of the imports from Hangzhou Bioking, it is sufficient to observe that that exporting producer was not covered by the review investigation that led to the adoption of the Contested Regulation. It should be borne in mind that, in the 2006 Definitive Regulation, the imports from Hangzhou Bioking were made subject to an anti-dumping duty of 0%. Subsequently, in 2012, the EU institutions adopted the Regulation Excluding Hangzhou Bioking. It is apparent from recital 4 of that regulation that, in so doing, the EU institutions intended to implement the Beef and Rice WTO Appellate Body Report, according to which an exporting producer not found to be dumping in an original investigation has to be excluded from the scope of the definitive measures and cannot be made subject to a review of those measures. It follows that, in 2016, in the Hangzhou Bioking Decision, the Commission terminated the anti-dumping proceeding concerning imports of tartaric acid produced by Hangzhou Bioking without imposing anti-dumping duties on the ground that, even if Hangzhou Bioking had engaged in dumping, the Union industry had not suffered material injury during the investigation period (in particular, the Union industry’s profitability showed a positive trend, whereas cash flow, return on investments and employment increased during that period). Therefore, having regard to the fact that Hangzhou Bioking did not fall within the scope of the Contested Regulation and that the Commission decided to exclude it in order to comply explicitly with paragraphs 215 to 221 of the Beef and Rice WTO Appellate Body report, a decision which it was open to it to adopt under the case-law cited in paragraphs 60 and 77 above, the applicant’s argument must be rejected.

146 Second, as regards the effects of favourable or unfavourable climatic conditions on the supply of calcium tartrate, it must be borne in mind that, according to settled case-law, for the purposes of reviewing the legality of an act of the EU institutions, account may be taken not of what actually happened after the adoption of the contested measure, but only of the information available to them at the time when the contested measure was adopted (see, to that effect, judgment of 15 October 1998, Industrie des poudres sphériques v Council, T‑2/95, EU:T:1998:242, paragraph 306). Accordingly, the argument relating to the evolution of prices of natural tartaric acid in 2017 and 2018, namely after the adoption of the Contested Regulation, must be rejected as being irrelevant. Moreover, it is apparent from recitals 100 and 127 of the Contested Regulation that the Commission took into account the impact of climatic conditions on the demand and production of natural tartaric acid. Besides, regardless of the impact of the climatic conditions on the cost of raw materials, the dumped imports originating in the People’s Republic of China always exert pressure on the prices of tartaric acid, which makes it more difficult for the Union industry to be profitable, even in more favourable years. Accordingly, the applicant’s argument must be rejected.

147 Third, as regards the argument that the use of synthetic tartaric acid is prohibited in the European Union for the wine and pharmaceutical industry, it is sufficient to recall that, according to recitals 30 and 31 of the Contested Regulation, the two product types are considered to be similar for the purposes of the review since they have the same basic physical and chemical characteristics and overlap uses.

148 In the light of the foregoing, the first complaint of the third plea must be rejected as unfounded.

149 By the second complaint of the third plea in law, the applicant criticises the Commission for having concluded, in the Contested Regulation, there to be a likelihood of recurrence of injury, whereas, in the Hangzhou Bioking Decision, it took the view that the imports from that exporting producer, which were not subject to anti-dumping duties, did not cause material injury.

150 In that regard, it should be recalled that, according to the case-law, a review procedure under Article 11(2) of the Basic Regulation is, in principle, objectively different from that of the original investigation, which is governed by other provisions of that regulation. The objective difference between the two proceedings lies in the fact that imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping even if the initiation of such an investigation presupposes the existence of sufficient evidence to justify the initiation of that procedure. Therefore, imports which gave rise to the imposition of a definitive anti-dumping duty, on account of their origin, are not in the same situation as similar imports from other sources which were merely the subject of an initial investigation (judgment of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 56 and 57; see also, to that effect, judgment of 27 January 2005, Europe Chemi-Con (Deutschland) v Council, C‑422/02 P, EU:C:2005:56, paragraphs 49 and 50).

151 In the present case, it must be stated that, although the Contested Regulation was adopted following a review investigation under Article 11(2) of the Basic Regulation, the Hangzhou Bioking Decision was adopted following an investigation into the imposition of anti-dumping duties on the products of that exporting producer and initiated pursuant to Article 5 of the Basic Regulation. Given the difference in the applicable legal rules, the Commission cannot be criticised for not reaching the same conclusions concerning the injury.

152 Moreover, it must be stated that the period covered by the Contested Regulation and that covered by the Hangzhou Bioking Decision differed and that the producers forming part of the Union industry were not the same. The Commission cannot therefore be criticised for the fact that the conclusions which it reached in those two investigations are not the same. In any event, it should be noted, as the Commission claims, that both the Contested Regulation and the Hangzhou Bioking Decision conclude that there was no material injury to the Union industry during the respective periods. The only difference lies in the fact that the Contested Regulation considered that there was a likelihood of recurrence of injury, a criterion which does not apply in an investigation to introduce anti-dumping duties for the first time.

153 In view of the foregoing, the applicant’s second complaint of the third plea must be rejected.

154 Lastly, as regards the alleged infringement of Article 3(1) and Article 11(3) of the Anti-Dumping Agreement, which the applicant merely relies on without further development, it is sufficient to note that, even if it were able to rely on those provisions before the Courts of the European Union and irrespective of whether those arguments are admissible in the absence of any specific development, it must be rejected for the reasons set out in paragraphs 133 to 153 above. Moreover, for the same reasons as those set out above, there is nothing to indicate that the Commission infringed its obligation to conduct the review investigation impartially and objectively.

156 In the context of the fourth plea in law, the applicant alleges a series of infringements of the rights of the defence. The applicant claims that, notwithstanding the requests made in its observations on the general disclosure document, the Commission refused to disclose to it certain information essential for it to exercise its rights of defence.

157 First, the Commission failed to disclose to it the factors taken into consideration for the purposes of assessing the state of the Union industry and finding it to be vulnerable. The applicant claims that, in response to its comments that there were several positive injury indicators, the Commission erroneously focused on the low profitability and unsatisfactory cash flows of the Union industry in the Contested Regulation. Furthermore, the Commission failed to disclose to it the main facts and considerations regarding the negative impact of certain important factors on the state of the Union industry, other than the alleged dumping, such as the decline in tartaric acid consumption within the European Union, the impact of climatic conditions on the production of natural tartaric acid in the European Union and the flawed decisions to invest in the production capacity of the Union industry. If the Commission had taken account of those comments, it could have come to the conclusion that the Union industry was not vulnerable and that, therefore, there was no likelihood of recurrence of injury.

158 Second, the Commission failed to disclose to it the main factors and considerations regarding the failure to take account of Distillerie Mazzari. If the Commission had taken account of the information regarding Distillerie Mazzari, it could have come to the conclusion that the Union industry was not vulnerable and that, therefore, there was no likelihood of recurrence of injury.

159 Third, the Commission failed to disclose to it the considerations underlying the failure to take Hangzhou Bioking into account for the purposes of the analysis of the likelihood of recurrence of injury.

160 Fourth, the Commission failed to disclose to it the main considerations underlying the marked discrepancy between the Hangzhou Bioking Decision and the Contested Regulation as regards the consumption of tartaric acid in the European Union in 2013.

161 In view of all the foregoing considerations, the applicant takes the view that it was deprived of the possibility of defending its position effectively. In the applicant’s opinion, the Commission therefore infringed the rights of the defence, which are guaranteed by a series of provisions in the Basic Regulation and the Anti-Dumping Agreement, as well as the principle of good administration.

162 The Commission, supported by the interveners, contends that the applicant’s arguments should be rejected.

163 Under Article 20(2) of the Basic Regulation, the parties may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures.

164 According to settled case-law, respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question (judgment of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraph 83 and the case-law cited). Respect for that principle is of crucial importance in anti-dumping investigations (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 77 and the case-law cited).

165 Under the principle of the rights of the defence, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 76).

166 In addition, according to the case-law, in performing their duty to provide information, the EU institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information (judgments of 27 June 1991, Al-Jubail Fertilizer v Council, C‑49/88, EU:C:1991:276, paragraph 17, and of 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 99; see also, to that effect, judgment of 20 March 1985, Timex v Council and Commission, 264/82, EU:C:1985:119, paragraph 30).

167 The obligation to provide information which is incumbent on the EU institutions in anti-dumping matters must be reconciled with the obligation to respect confidential information (see, to that effect, judgments of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 121, and of 18 December 1997, Ajinomoto and NutraSweet v Council, T‑159/94 and T‑160/94, EU:T:1997:209, paragraph 83). However, the obligation to respect confidential information cannot deprive the applicant’s rights of defence of their substance (see, to that effect, judgment of 20 March 1985, Timex v Council and Commission, 264/82, EU:C:1985:119, paragraph 29).

168 It is also apparent from the case-law that the sufficiency of the information provided by the EU institutions must be assessed in relation to how specific the request for information was (judgments of 18 December 1997, Ajinomoto and NutraSweet v Council, T‑159/94 and T‑160/94, EU:T:1997:209, paragraph 93, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 143).

169 It must be recalled that the applicant cannot be required to demonstrate that the institutions’ decision would have been different, but simply that such a possibility cannot be totally ruled out since it would have been better able to defend itself if there had been no procedural error thus in fact affecting the rights of the defence (judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 144; see also, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraphs 78 and 79).

170 On the other hand, it is for the applicant to establish specifically how it would have been better able to ensure its defence in the absence of such an irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 145).

171 The arguments put forward by the applicant in the present case must be examined in the light of those principles.

172 First, the applicant complains that the Commission did not communicate to it the factors taken into consideration in order to assess the situation of the Union industry during the relevant period. That argument cannot be accepted. It must be stated that, in recitals 109 to 136 of the general disclosure document, the Commission set out in detail the essential facts and considerations on which the Contested Regulation relied, at recitals 112 to 145, to conclude that the Union industry is vulnerable. Moreover, it must be stated that the applicant does not identify any factor in the Contested Regulation which was not mentioned in the general disclosure document. In addition, it should be noted that that document, like the Contested Regulation, already referred to the reduction in EU consumption, the impact of climatic conditions and investments on production capacity of the Union industry. Irrespective of the fact that the Commission attached preponderant weight to certain factors in its balancing of all the relevant economic factors and indices having a bearing on the economic situation of the Union industry – an assessment in respect of which it has a broad discretion, as was pointed out in the context of the second plea – the fact that the applicant does not share the Commission’s assessment cannot constitute an infringement of the rights of the defence.

173 Second, the applicant complains that the Commission did not disclose to it the main factors and considerations regarding the failure to take account of Distillerie Mazzari. That argument must also be rejected. As is apparent from recitals 22 to 23 of the general disclosure document, the Commission initially selected a provisional sample of six producers representing 86% of the Union production of tartaric acid. However, in view of the fact that one of those producers did not wish to cooperate in the investigation, the Commission concluded that sampling was no longer appropriate. In addition, it is apparent from recital 29 of the general disclosure document that Distillerie Mazzari was not among the Union producers subject to verification visits by the Commission. In addition, it is apparent from the letter of 4 May 2017 sent by Assodistil to the Commission, provided by the applicant itself, that Distillerie Mazzari had decided not to cooperate in the investigation. Moreover, the Commission claims, without being contradicted by the applicant on that point, that the applicant could have exercised its right to consult the administrative file by 21 July 2017 at the latest in order to reply to the questionnaire sent, but that it decided not to make use of that right at that stage. In the light of the foregoing, the Commission cannot be accused of infringing the applicant’s rights of defence by failing to inform it of the fact that the information concerning Distillerie Mazzari was not taken into account for the purposes of the investigation at issue.

174 Third, the applicant complains that the Commission did not inform it of the considerations underlying the failure to take Hangzhou Bioking into account for the purposes of the investigation at issue. That argument must be rejected. The applicant cannot be unaware that, pursuant to the Hangzhou Bioking Decision, the EU institutions had terminated all anti-dumping proceedings against that producer. That finding was also set out in recitals 2 and 5 of the general disclosure document. Therefore, the Commission cannot be criticised for having infringed the applicant’s rights of defence by not informing it that the information concerning Hangzhou Bioking was not taken into account for the purposes of the investigation at issue.

175 Fourth, the applicant complains that the Commission did not inform it of the essential considerations underlying the discrepancy of approximately 5 000 tonnes between the Hangzhou Bioking Decision and the Contested Regulation concerning the consumption of tartaric acid in the European Union in 2013. That argument cannot be accepted. It must be stated that the general disclosure document indicated the data used by the Commission for the purposes of the investigation at issue, as well as their source, in recital 97 and in the table relating thereto. Furthermore, it must be observed that the applicant was in a position to note that discrepancy and to make known its views in its observations on the general disclosure document. Therefore, it cannot be claimed that the Commission infringed the rights of the defence in that regard, without prejudice to the possible consequences of that difference as regards the existence of a manifest error of assessment, examined in the context of the second plea above.

176 Lastly, as regards the alleged infringement of the principle of good administration, of Article 3(2), Article 11(2), Article 16(1), Article 19(2) and (4), Article 20(4), Article 21(5) and (7) of the Basic Regulation and a series of provisions of the Anti-Dumping Agreement, in the light of the case-law cited in paragraph 78 above, it should be noted in the present case that the applicant merely refers to the infringement of those provisions without putting forward any arguments whatsoever in support of its argument. Consequently, those claims must be rejected as inadmissible, as they fail to meet the minimum requirements of Article 76(d) of the Rules of Procedure.

177 In the light of the foregoing, the fourth plea must be rejected as being in part unfounded and in part inadmissible.

178 It is apparent from the application that, in essence, the applicant raises a fifth plea in law, alleging a failure to state reasons.

179 First, the applicant states that the Commission failed to provide reasons, to the requisite legal standard, for the calculation of the normal value pursuant to Article 2(7) of the Basic Regulation, even though the rules laid down in Article 15(a)(ii) of the Accession Protocol expired fifteen years after the date of accession.

180 Second, the Commission failed to provide reasons, to the requisite legal standard, for the failure to take Distillerie Mazzari into consideration for the purposes of assessing the state of the Union industry, even though it had taken that company into account in the context of the Hangzhou Bioking Decision.

181 Third, the Commission failed to provide reasons, to the requisite legal standard, explaining why it had found there to be no injury in the context of the Hangzhou Bioking Decision whereas, in the Contested Regulation, it found there to be a likelihood of recurrence of injury.

182 The Commission, supported by the interveners, contends that the present arguments should be rejected.

183 It must be borne in mind that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its power of review (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 75).

184 That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 76).

185 It should also be emphasised that the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned, but that it is sufficient to set out the facts and the legal considerations having decisive importance in the context of the decision (judgment of 15 March 2018, Caviro Distillerie and Others v Commission, T‑211/16, EU:T:2018:148, paragraph 104). Accordingly, they cannot be criticised for not replying specifically to each argument relied on by the applicants or for not defining their position on matters which they did not deem relevant to the individual case (judgment of 16 December 2015, VTZ and Others v Council, T‑108/13, not published, EU:T:2015:980, paragraph 157; see also, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 64).

186 The arguments put forward by the applicant must be examined in the light of those principles.

187 First, as regards the alleged failure to state reasons concerning the method used to calculate the normal value, it should be noted that, in recital 36 of the Contested Regulation, the Contested Regulation states that the Commission informed the interested parties in the notice of initiation that it intended to apply the analogue country method, within the meaning of Article 2(7)(a) of the Basic Regulation, and that no comment was made in that regard. Moreover, it is apparent from recital 44 of the Contested Regulation that the Commission took note of the fact that, in its comments on the general disclosure document, the applicant had claimed that that method could no longer be applied to imports originating in the People’s Republic of China due to the expiry of the rules laid down in Article 15(a)(ii) of the Accession Protocol. Nevertheless, it is apparent from recital 45 of the Contested Regulation that the Commission decided that the applicable legal basis provided for by the Basic Regulation in force at that time was indeed Article 2(7)(a) of the Basic Regulation. It must be stated that, irrespective of the merits of that position, examined in the context of the first plea above, that statement of reasons, albeit succinct, satisfies the requirements set out in paragraphs 183 to 185 above.

188 Second, the argument relating to the alleged failure to state reasons concerning the failure to take Distillerie Mazzari into consideration for the assessment of the situation of the Union industry cannot succeed. Irrespective of whether that position, examined in the context of the second plea above, is well founded, it is apparent from a combined reading of recitals 21, 22 and 28 of the Contested Regulation that the reason was the lack of cooperation in the investigation of that EU exporting producer.

189 Third, it is necessary to reject the argument alleging a failure to state reasons concerning the reasons why the Commission had concluded that there was no injury in the Hangzhou Bioking Decision even though it concluded in the Contested Regulation that there was a likelihood of recurrence of injury. In that regard, it must be held that that result follows from the following considerations: the periods at issue overlapped only in part (recitals 98 and 142 of the Contested Regulation); the imports from the exporting producers under investigation were not the same (recitals 2 and 5 of the Contested Regulation); and the legal test applied was different, taking into account the likelihood of recurrence of injury rather than the existence of material injury (recitals 148 and 162 of the Contested Regulation). Irrespective of whether that position, which has been examined in the context of the first and second pleas above, is well founded, the General Court considers that that statement of reasons satisfies the requirements set out in paragraphs 183 to 185 above.

190 In the light of the foregoing, the present plea must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.

191 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, and since the Commission and the interveners have applied for costs, the applicant must be ordered to pay the costs.

192 Accordingly, the applicant shall, in addition to bearing its own costs, pay those incurred by the Commission and the interveners.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Changmao Biochemical Engineering v Commission (Dumping - Imports of tartaric acid originating in China - Judgment) [2020] EUECJ T-541/18 (16 December 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T54118.html Cite as: [2020] EUECJ T-541/18, EU:T:2020:605, ECLI:EU:T:2020:605

Court of Justice of the European Communities (including Court of First Instance Decisions)