JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

12 December 2014(*) (1)

(Dumping — Imports of hand pallet trucks and their essential parts originating in China — Review — Article 11(2) of Regulation (EC) No 1225/2009 — Rights of defence — Error of fact — Manifest error of assessment — Obligation to state reasons)

In Case T‑643/11,

Crown Equipment (Suzhou) Co. Ltd, established in Suzhou (China),

Crown Gabelstapler GmbH & Co. KG, established in Roding (Germany),

represented by K. Neuhaus, H.-J. Freund and B. Ecker, lawyers,

applicants,

v

Council of the European Union, represented by J. P. Hix, acting as Agent, and initially by G. Berrisch and A. Polcyn, and subsequently by A. Polcyn and D. Gerardin, lawyers,

defendant,

supported by

European Commission, represented by J.-F. Brakeland, M. França and A. Stobiecka-Kuik, acting as Agents,

intervener,

ACTION for the annulment of Council Implementing Regulation (EU) No 1008/2011 of 10 October 2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China as extended to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ 2011 L 268, p. 1), in so far as that regulation concerns the applicants,

THE GENERAL COURT (Fourth Chamber),

composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 12 February 2014,

gives the following

Judgment

 Background to the dispute

1        The first applicant, Crown Equipment (Suzhou) Co. Ltd is a company incorporated under Chinese law which produces hand pallet trucks and their essential parts. The second applicant, Crown Gabelstapler GmbH & Co. KG, is a company incorporated under German law and related to the first applicant, and imports hand pallet trucks and their essential parts produced by the first applicant into the European Union.

2        On 18 July 2005, the Council of the European Union adopted Regulation (EC) No 1174/2005 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China (OJ 2005 L 189, p. 1). The measures took the form of an ad valorem duty ranging between 7.6% and 46.7%.

3        On 17 July 2008, the Council adopted Regulation (EC) No 684/2008 clarifying the scope of the anti-dumping measures imposed by Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China (OJ 2008 L 192, p. 1). In that regulation, the Council clarified the product scope of the original investigation.

4        On 11 June 2009, the Council adopted Regulation (EC) No 499/2009 extending the definitive anti-dumping duty imposed by Regulation No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not (OJ 2009 L 151, p. 1).

5        On 21 April 2010, following publication of a notice of the impending expiry of certain anti-dumping measures (OJ 2010 C 70, p. 29) in which the Commission gave notice that the definitive anti-dumping measures in force under Regulation No 1174/2005 would expire on 22 July 2010, the Commission received a request from two European Union producers for the initiation of an expiry review of those measures under Article 11(2) 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; ‘the basic regulation’).

6        On 20 July 2010, the Commission initiated an expiry review of the existing measures under Article 11(2) of the basic regulation. For the purposes of the review, the Commission investigated the likelihood of the continuation or recurrence of dumping and injury on the basis of the period from 1 July 2009 to 30 June 2010, namely ‘the review investigation period’ (‘the RIP’). It also examined the trends relevant for the assessment of the likelihood of a continuation or recurrence of injury over the period from 1 January 2007 to the end of the RIP (‘the period considered’).

7        On 30 July 2010, the applicants submitted comments on the appropriateness of the choice of the proposed analogue country.

8        On 3 August 2010, the first applicant expressed its wish to cooperate in the proceedings as an interested exporting producer. In particular, it supplied certain information and asked to be included in a potential sampling of Chinese exporting producers of hand pallet trucks and their essential parts.

9        On 27 August 2010, the applicants replied to the Commission’s request for additional information concerning certain analogue countries.

10      On 23 September 2010, the applicants notified the Commission that, although they wished to cooperate in the proceedings, they would not be able to reply to the questionnaires within the prescribed period.

11      On 1 July 2011, the Commission communicated to the applicants the general final disclosure document which sets out the essential facts and considerations on the basis of which it intended to propose the extension of the measures imposed by Regulation No 1174/2005.

12      On 25 July 2011, the applicants’ representative submitted comments on the general final disclosure of the Commission. In particular, it denied the existence of injury, that there was a causal link between the imports and injury and, therefore, that injury was likely to recur or continue.

13      On 10 October 2011, the Council adopted Implementing Regulation (EU) No 1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China as extended to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not, following an expiry review pursuant to Article 11(2) of [the basic regulation] (OJ 2011 L 268, p. 1; ‘the contested regulation’). That regulation extended the application of the anti-dumping duty imposed by Regulation No 1174/2005 for a further five years. An ad valorem duty of 46.7% was therefore imposed on the applicants’ imports for a further five years.

14      In that regulation, the Council found that the dumped imports had continued to enter during the RIP and that they were likely to continue to do so should the anti-dumping measures be removed (recitals 15 to 34 of the contested regulation). In addition, it found that the Union industry had continued to suffer injury during the RIP (see recitals 38 to 61 of the contested regulation) and that there was a causal link between the dumped imports and the injury suffered by the Union industry during the RIP (see recitals 62 to 64 of the contested regulation). On the basis of those findings, the Council concluded that the injury caused to the Union industry would be likely to continue should the anti-dumping measures be repealed (see recitals 65 to 68 of the contested regulation).

15      As regards, in particular, the assessment of the continuation or recurrence of injury, the Council found that notwithstanding the imposition of the anti-dumping measures in 2005, the economic and financial situation of the Union industry had remained substantially fragile because of the overwhelming presence of low-priced Chinese goods in the Union market (see recital 58 of the contested regulation). In addition, it found that, between the beginning and the end of the period considered, the production and the capacity utilisation of the Union industry had fallen by 35%, the market share held by the Union industry had declined by 16%, stocks had increased by 56%, sales volumes had decreased by 50%, the level of employment had fallen by 17%, productivity had decreased by 22%, investments had declined by 91%, profits had decreased by 66% and cash flow had fallen by 27% (see recitals 43 to 50 and 53 to 56 of the contested regulation). The Council also found that, between the beginning and the end of the period considered, the Union industry had reduced its labour costs by 29% despite the drastic reduction in the volume of production and that its prices had increased by only 4% (see recitals 51 and 52 of the contested regulation).

16      In addition, the Council noted that, between the beginning and the end of the period considered, Union consumption decreased by 40% (see recital 40 of the contested regulation). However, it observed that, notwithstanding the significant decrease in Union demand, the market share of Chinese imports had increased over the period considered (from 78% in 2007 to 83% during the RIP), since Chinese imports had not decreased at the same rate as Union consumption (see recital 41 of the contested regulation). The Council took the view that Chinese imports had thereby further increased their market share and that the dumped imports undercut the prices of the Union industry by between 43% and 78% (see recital 62 of the contested regulation). Consequently, having regard to the likely continuation of dumping, the Council concluded that the injury caused to the Union industry was likely to continue should the anti-dumping duty be repealed (see recital 68 of the contested regulation).

 Procedure and forms of order sought

17      By application lodged at the Court Registry on 15 December 2011, the applicants brought the present action.

18      By document lodged at the Court Registry on 14 February 2012, the Commission applied for leave to intervene in support of the form of order sought by the Council.

19      By order of 27 March 2012, the President of the First Chamber (previous formation) granted the Commission leave to intervene.

20      Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated.

21      By way of measures of organisation of procedure, the Court (Fourth Chamber) called on the parties to reply to a number of questions. The parties provided their answers within the prescribed period.

22      The applicants claim that the Court should:

–        annul the contested regulation in so far as it concerns them;

–        order the Council to pay the costs.

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

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

1.     Admissibility

24      The applicants submit that they have standing to bring proceedings for the purposes of the fourth paragraph of Article 263 TFEU, since the contested regulation is a regulatory act which is of direct concern to them and does not entail implementing measures. The Commission and the Council dispute that assessment. However, all the parties in question in the present case take the view that the applicants were directly and individually concerned by the contested regulation and, therefore, entitled to bring the present action against that regulation.

25      In that regard, the Court points out that the conditions for the admissibility of an action laid down by the fourth paragraph of Article 263 TFEU relate to public policy considerations (see, to that effect, judgments of 24 March 1993 in CIRFS and Others v Commission, C‑313/90, ECR, EU:C:1993:111, paragraph 23, and of 9 September 2010 in Evropaïki Dynamiki v EMCDDA, T‑63/06, ECR, EU:T:2010:368, paragraph 30 and the case-law cited). It follows that objections of inadmissibility involving public policy considerations may be examined by the Court of its own motion (see, to that effect, CIRFS and Others v Commission, EU:C:1993:111, paragraph 23).

26      Under the fourth paragraph of Article 263 TFEU any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

27      As regards whether the applicants are directly concerned by the measure in question, it must be recalled that in order for an individual to be directly concerned by a Community measure, that measure must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (judgments of 5 May 1998 in Dreyfus v Commission, C‑386/96 P, ECR, EU:C:1998:193, paragraph 43, and of 10 September 2009 in Commission v Ente per le Ville vesuviane and Ente per le Ville vesuviane v Commission, C‑445/07 P and C‑455/07 P, ECR, EU:C:2009:529, paragraph 45; and order of 9 July 2013 in Regione Puglia v Commission, C‑586/11 P, ECR, EU:C:2013:459, paragraph 31).

28      In the present case, the contested regulation directly affects the applicants’ legal situation since it determines the anti-dumping duty which the applicants, in their capacity as exporting producer and importer, must pay. In addition, the Member States have no discretion as regards the rate of anti-dumping duty and the imposition of that duty (see, to that effect, judgment of 25 September 1997 in Shanghai Bicycle v Council, T‑170/94, ECR, EU:T:1997:134, paragraph 41).

29      As regards whether the contested regulation is of individual concern to the applicants, it must be borne in mind that although regulations imposing anti-dumping duty are, by virtue of their nature and scope, of a legislative character in that they apply generally to the economic operators concerned, their provisions may none the less be of individual concern to particular traders (judgments of 21 February 1984 in Allied Corporation and Others v Commission, 239/82 and 275/82, ECR, EU:C:1984:68, paragraph 11; of 20 June 2000 in Euromin v Council, T‑597/97, ECR, EU:T:2000:157 paragraph 43; and of 28 February 2002 in BSC Footwear Supplies and Others v Council, T‑598/97, ECR, EU:T:2002:52, paragraph 43).

30      It follows from that case-law that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders who therefore have standing to bring an action for their annulment (judgment of 16 May 1991 in Extramet Industrie v Council, C‑358/89, ECR, EU:C:1991:214, paragraph 14).

31      Thus, it has been held that regulations imposing an anti-dumping duty are of direct and individual concern to, inter alia, those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (Allied Corporation and Others v Commission, cited in paragraph 29 above, EU:C:1984:68, paragraph 12; judgments of 11 July 1990 in Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, ECR, EU:C:1990:295 paragraph 19; and of 15 February 2001 in Nachi Europe, C‑239/99, ECR, EU:C:2001:101, paragraph 21).

32      In the present case, it is not disputed that, in recital 16 of the contested regulation, the first applicant was mentioned in its capacity as an exporting producer of the products concerned from China. It is also agreed that the reference to ‘exporting producer’ in recitals 19, 37, 60 and 61 of the contested regulation refers to the first applicant. Lastly, the first applicant was concerned by the preliminary investigations since it approached the Commission following the publication of the Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of hand pallet trucks and their essential parts originating in the People’s Republic of China (OJ 2010 C 196, p. 15). In addition, the Commission invited the first applicant to submit comments to it on the general final disclosure which it had drawn up. Further to that invitation, the first applicant submitted its comments to the Commission.

33      As regards the second applicant, it has been held that when the action of one of the applicants is admissible and one and the same application is involved there was no need to consider whether the other applicants were entitled to bring proceedings (see, to that effect, CIRFS and Others v Commission, cited in paragraph 25 above, EU:C:1993:111, paragraph 31; judgment of 9 July 2007 in Sun Chemical Group and Others v Commission, T‑282/06, ECR, EU:T:2007:203, paragraph 50, and judgment of 30 September 2009 in Akzo Nobel and Others v Commission, T‑175/05, ECR, EU:T:2009:369, paragraph 46).

34      The applicants’ action must therefore be declared admissible and there is no need to consider whether the contested regulation is a regulatory act which does not entail implementing measures.

2.     Substance

35      In the present case, the applicants put forward three pleas in law. In their first plea, they submit that their right to a fair hearing, their rights of defence and their right to be heard have been infringed. In their second plea, they submit that the Council committed errors of fact in recitals 58 and 60 of the contested regulation. Lastly, in their third plea, the applicants submit that the considerations leading to the finding of injury as well as a causal link between the imports allegedly dumped and the likelihood of the continuation of injury should the anti-dumping measures be repealed are based on several manifest errors of assessment.

 The first plea in law, alleging that the applicants’ procedural rights have been infringed

36      The applicants submit, in essence, that their right to a fair hearing, their rights of defence and their right to be heard have been infringed on the ground that the Council arbitrarily disregarded their injury assessment for the period between 2007 and 2009 which they submitted in their letter of 25 July 2011. Such disregard is shown by the fact that, in recital 60 of the contested regulation, it is stated — wrongly in the applicants’ view — that they examined the development of injury for the period between 2009 and the RIP. The applicants consider that the right to make their views known cannot be restricted to a mere right to be given the opportunity to file submissions, but required the Council to take full account of the submissions put forward in their letter of 25 July 2011. Consequently, the Council’s failure to consider that letter infringes not only their right to a fair hearing, but also the third subparagraph of Article 11(2) of the basic regulation.

37      The Council denies that it has infringed the applicants’ procedural rights and the third subparagraph of Article 11(2) of the basic regulation.

38      In so far as the applicants argue that their rights of defence and their right to be heard have been infringed, it must be borne in mind that respect for the rights of the defence is a fundamental principle of EU law, of which the right to be heard is inherent (see, to that effect, judgments of 12 February 1992 in Netherlands and Others v Commission, C‑48/90 and C‑66/90, ECR, EU:C:1992:63, paragraph 44; of 29 June 1994 in Fiskano v Commission, C‑135/92, ECR, EU:C:1994:267 paragraph 39; of 24 October 1996 in Commission v Lisrestal and Others, C‑32/95 P, ECR, EU:C:1996:402, paragraph 21; of 22 November 2012 in M., C‑277/11, ECR, EU:C:2012:744, paragraph 82; and of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 98) which applies to any person (see, to that effect, judgment of 18 December 2008 in Sopropé, C‑349/07, ECR, EU:C:2008:746, paragraph 36).

39      The right to be heard — which is fundamental to the observance of the rights of defence during a procedure preceding the adoption of an act adversely affecting a person — is moreover expressly affirmed in the Charter of Fundamental Rights of the European Union which, pursuant to Article 6(1) TEU, has the same legal value as the Treaties. In particular, Article 41(2)(a) of that charter states that the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time by the EU institutions includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken.

40      In addition, in the context of anti-dumping investigations, it has been held that respect for the rights of the defence and the right to be heard in those investigations was of crucial importance (see, to that effect, judgment of 16 February 2012 in Council v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, ECR, EU:C:2012:78, paragraph 77 and the case-law cited).

41      The respect for those rights presupposes that 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 (judgments of 27 June 1991 in Al-Jubail Fertilizer v Council, C‑49/88, ECR, EU:C:1991:276 paragraph 17, and of 11 July 2013 in Hangzhou Duralamp Electronics v Council, T‑459/07, EU:T:2013:369, paragraph 110).

42      In the present case, the applicants have not, however, shown that they were not placed in a position 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 EU institutions in support of their conclusion that anti-dumping measures should be maintained. Moreover, the applicants have not put forward any evidence which they were not able to use and which they did not have the opportunity to submit to the EU institutions.

43      The applicants complain that the EU institutions failed to take their comments into account. However, that alleged failure to take into account their comments does not constitute a breach of their rights of defence or their right to be heard. Although for those rights to be observed, the EU institutions must enable the applicants to effectively make known their views, those institutions cannot be required to adhere to them. In order for the applicants’ submission of views to be effective it is necessary only that they have been submitted in good time so that the EU institutions may take cognisance of them and assess, with all the requisite attention, their relevance for the content of the measure being adopted (see, to that effect, judgment of 1 October 2009 in Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, ECR, EU:C:2009:598, paragraphs 97, 98 and 102, and Sopropé, cited in paragraph 38 above, EU:C:2008:746, paragraphs 49 and 50).

44      The applicants are therefore incorrect to claim that their rights of defence or their right to be heard have been infringed.

45      In so far as the applicants submit that their right to a fair hearing has been infringed, it must be borne in mind that, although the Commission or the Council cannot be described as a ‘court or tribunal’ within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (see, to that effect, judgments of 29 October 1980 in van Landewyck and Others v Commission, 209/78 to 215/78 and 218/78, EU:C:1980:248, paragraph 81, and of 7 June 1983 in Musique diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 7), the Commission and the Council are nevertheless required during the administrative procedure to respect the fundamental rights of the European Union, which include the right to sound administration enshrined in Article 41 of the Charter of Fundamental Rights. In particular, it is Article 41, not Article 47 of that Charter, which governs the administrative procedure before the Commission and the Council in the matter of defence against dumped imports from non-EU countries (see, by analogy, judgment of 11 July 2013 in Ziegler v Commission, C‑439/11 P, ECR, EU:C:2013:513, paragraph 154 and the case-law cited).

46      The applicants’ complaint must therefore be understood as meaning that the right to sound administration has been infringed because of a failure to take sufficient account of their comments in their letter of 25 July 2011. That right presupposes a duty of diligence which requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; of 6 November 2008 in Netherlands v Commission, C‑405/07 P, ECR, EU:C:2008:613, paragraph 56; and of 16 September 2013 in ATC and Others v Commission, T‑333/10, ECR, EU:T:2013:451, paragraph 84).

47      In the present case, the Council stated as follows in recital 60 of the contested regulation:

‘In its comments to the disclosure one Chinese exporting producer claimed that certain indicators including production, sales volumes, profitability, capacity utilisation, employment show in fact no negative development for the Union industry. However, the company had only looked at the development between 2009 and the RIP while for the assessment of injury the overall development of the Union industry during the period considered, i.e. between 2007 and the RIP needs to be assessed. As explained above (see recitals 43 to 49), all the injury indicators mentioned by the Chinese exporter developed in a negative direction during the period considered.’

48      From reading the applicants’ letter of 25 July 2011, it is true that it was only in relation to the period between 2009 and the RIP that they claimed that the production, profitability, capacity utilisation and employment of the Union industry developed in a positive rather than a negative direction.

49      However, the second sentence of recital 60 of the contested regulation (‘However, the company had only looked at the development between 2009 and the RIP while for the assessment of injury the overall development of the Union industry during the period considered, i.e. between 2007 and the RIP needs to be assessed’) must be read and understood in the light of the first sentence of that recital. Even though, in their letter of 25 July 2011, the applicants did indeed refer also to the period considered, the assessment that certain factors did not develop in a negative direction relates only to the development between 2009 and the RIP.

50      Consequently, the applicants are wrong to claim, in essence, that the institutions failed to comply with the duty of diligence in the light of the assessment in recital 60 of the contested regulation.

51      Lastly, in so far as the applicants argue, in essence, that the duty of diligence and the third subparagraph of Article 11(2) of the basic regulation were infringed by the alleged failure to take into account the other considerations in the comments in the letter of 25 July 2011, it must be borne in mind that, under that provision, the EU institutions must reach their conclusions after taking due account of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

52      For the above reasons, the institutions did not fail to take into account in the contested regulation the absence of the negative development — alleged by the applicants in their letter of 25 July 2011 — of the production, profitability, capacity utilisation and employment of the Union industry. In addition, it is apparent from recital 59 of the contested regulation that the institutions took into consideration the development of the profitability, production, sales volumes, capacity utilisation rate, level of employment and productivity in the European Union between 2007 and the RIP. Thus, the institutions took into account those factors during the period considered. In so far as the applicants submit that the institutions assessed those factors incorrectly in view of the applicants’ comments in their letter of 25 July 2011, that objection relates to the merits of the assessment in the contested regulation, which is the subject of the third plea in law. It does not therefore fall within the scope of the assessment of the formal legality of that regulation. The Court must therefore reject the applicants’ complaint that the institutions did not comply with their duty of diligence and infringed the third subparagraph of Article 11(2) of the basic regulation on the ground that they did not take due account of their observations in the letter of 25 July 2011.

53      For all the above reasons, the applicants’ first plea in law, alleging an infringement of their procedural rights, must be rejected.

 The second plea in law, alleging errors of fact

 Introduction

54      The applicants submit the Council committed errors of fact in recitals 58 and 60 of the contested regulation. They argue that the Council infringed Article 11(2) and Article 3(2), (6) and (7) of the basic regulation by establishing, on the basis of incorrect findings of fact, that there was injury as well as a causal link between the imports allegedly dumped and the injury likely to continue if the measures were repealed. The Council has not demonstrated in the contested regulation that the repeal of the duties could be likely to lead to a continuation of injury.

55      As a preliminary point, it should be noted that the Council based the retention of the anti-dumping measures on the fact that, taking into account the trends relevant for the assessment of the likelihood of a continuation of injury during the period considered, the Union industry suffered material injury, despite the existence of the anti-dumping measures, and that there is a causal link between the dumped imports from China and the material injury suffered by the Union industry during the RIP (recitals 61 and 64 of the contested regulation).

56      Next, the content of recitals 58 and 60 of the contested regulation must be borne in mind.

57      In recital 58 of the contested regulation, in Section 4.15, entitled ‘Recovery from the effects of past dumping’, the Council stated as follows:

‘The indicators examined above show that, notwithstanding the imposition of the anti-dumping measures in 2005, the economic and financial situation of the Union industry has remained substantially fragile, because of the overwhelming presence of low priced Chinese goods in the Union market. This already precarious situation has turned into a clearly injurious picture during 2009 and the RIP, when a substantial decrease in Union consumption has highlighted the full extent of the negative pressure exer[t]ed by the dumped Chinese imports. During that period in fact, the Union industry has seen its production and sales volumes decrease at a higher rate than the Union consumption and has therefore experienced a substantial additional loss in market shares. Over the same period, and despite the measures, the market share of Chinese imports has further increased and Chinese products have continued to be imported at prices substantially lower than the prices of the Union industry. During the RIP, profits further decreased for the Union industry. Therefore, the Union industry was not able to recover from the effects of dumping and its situation has even further deteriorated during the RIP.’

58      The recitals of the contested regulation preceding recital 58 contain the following information on consumption, production, sales volumes and market share held by the Union industry:

					2007	2008	2009	RIP (1 July 2009 to 30 June 2010)
Total EU consumption (pieces) Index (2007 = 100) (see recital 40 of the contested regulation)					100	84	49	60
Production (pieces) in the EU Index (2007 = 100) (see recital 43 of the contested regulation)					100	84	55	65
EU Sales volumes to unrelated customers (pieces) Index (2007 = 100) (see recital 46 of the contested regulation)					100	79	55	50
Market share of the EU industry Index (2007 = 100) (see recital 47 of the contested regulation)					100	95	111	84

59      In recital 60 of the contested regulation, the Council stated:

‘In its comments to the disclosure one Chinese exporting producer claimed that certain indicators including production, sales volumes, profitability, capacity utilisation, employment show in fact no negative development for the Union industry. However, the company had only looked at the development between 2009 and the RIP while for the assessment of injury the overall development of the Union industry during the period considered, i.e. between 2007 and the RIP needs to be assessed. As explained above (see recitals 43 to 49), all the injury indicators mentioned by the Chinese exporter developed in a negative direction during the period considered.’

 The first part of the second plea in law

60      In the first part of the second plea, the applicants claim that the Council committed an error of fact in maintaining, in the third sentence of recital 58 of the contested regulation, that the Union industry’s production and sales volumes decreased at a higher rate than Union consumption. The applicants take the view that the Council’s assessment is contrary to the data set out in recitals 40, 43 and 46 of the contested regulation.

61      In order to assess the accuracy of the assessment in the third sentence of recital 58 of the contested regulation, according to which ‘[d]uring that period …, the Union industry has seen its production and sales volumes decrease at a higher rate than the Union consumption and has therefore experienced a substantial additional loss in market shares’, it is necessary, first of all, to define the period which is being referred to in that sentence.

62      In the light of the context of that sentence and, in particular, of the second sentence of recital 58, the Court considers that the period being referred to corresponds to that ‘between 2009 and the RIP’, that is the period between the beginning of the year 2009 and 30 June 2010, the end date of the RIP.

63      Next, taking into consideration the period between the beginning of the year 2009 and the end of the RIP, and taking as the reference the data for the year 2007, the index of which is 100 points, it must be noted that total EU consumption increased from 49 to 60 points, production increased from 55 to 65 points and sales volumes fell from 55 to 50 points.

64      Accordingly, compared with the reference year 2007, sales volumes decreased by 5 points during the period between 2009 and the end of the RIP (from 55 to 50 points), thereby falling more than consumption which over the same period actually increased by 11 points (from 49 to 60 points). It follows that the Council did not commit an error of fact in finding that during the period between 2009 and the RIP sales volumes decreased at a higher rate than Union consumption.

65      The Court notes that, compared with the year 2007, production increased during the period between 2009 and the end of the RIP by 10 points (from 55 to 65 points), which is a smaller rise than consumption, which increased by 11 points (from 49 to 60 points). Thus, although the Council erred in taking the view that production and consumption had decreased during the period between 2009 and the end of the RIP, it must be found that, during that period, production increased by less than consumption.

66      The applicants submit that the Council also committed an error of fact in recital 58 of the contested regulation by stating that the Union industry had lost additional market shares between 2009 and the RIP. In their view, it is apparent from the data set out in recital 47 of the contested regulation that in 2009 the Union industry increased its market share by 16 points.

67      In that regard, it must be pointed out that the table set out in paragraph 58 above shows clearly that between the beginning of the year 2009 and the end of the RIP the market share of the EU industry fell by 27 points (from 111 to 84 points).

68      The fact that the Council stated, in recital 58 of the contested regulation, that the loss in market share was ‘additional’ implies that the Union industry had already lost market share. In the present case, that assessment is correct. Compared with the year 2007 (100 points), the Union industry lost market share in 2008 (− 5 points to 95 points) and an even bigger share during the RIP (− 16 points to 84 points). The fact that in 2009 the Union industry gained market share and its market share was greater than in 2007 (+ 11 points to 111 points) may indeed be evidence of the Union industry’s recovery. However, that possible recovery did not continue until the end of the RIP. Further, in any event, the finding that in 2009 the Union gained market share and its market share was greater than in 2007 does not affect the fact that, compared with the year 2007, the Union industry experienced a substantial additional loss in market shares between 2009 and the end of the RIP.

69      Consequently, it cannot be found that the Council committed an error of fact by concluding that during the period between 2009 and the end of the RIP the Union industry experienced a substantial additional loss in market shares. Contrary to the applicants’ claims, the error identified in paragraph 65 above cannot call in question that conclusion, in particular since the decline in the Union industry’s sales and the resumption of production by that industry at a lower rate than consumption, between 2009 and the end of the RIP, may account for the additional loss in market shares by the Union.

70      In the light of the foregoing, it must be acknowledged that the Council erred in referring to a decrease in production and consumption in the third sentence of recital 58 of the contested regulation. That error is due to imprecise wording. It does not affect the Council’s inferences as to the facts. Thus, the applicants cannot complain that there were errors of assessment concerning the findings of injury and a causal link on the ground that those findings were made on the basis of incorrect facts. The first part of the second plea in law must therefore be rejected.

 The second part of the second plea in law

71      The applicants submit that the statement set out in the penultimate sentence of recital 58 of the contested regulation on the profitability of the Union industry is vitiated by an error of fact since it is contrary to the data in recital 55 of the contested regulation. Consequently, the inference drawn on that basis in the last sentence of recital 58 of the contested regulation is therefore also erroneous. The applicants submit, in essence, that, contrary to the Council’s assessment, the data set out in recitals 39 to 56 of the contested regulation show that the Union industry’s economic situation improved during the RIP.

72      With regard to those complaints, it must be borne in mind that, in the last two sentences of recital 58 of the contested regulation, the Council stated:

‘During the RIP, profits further decreased for the Union industry. Therefore, the Union industry was not able to recover from the effects of dumping and its situation has even further deteriorated during the RIP.’

73      In addition, in recitals 54 and 55 of the contested regulation, the Council took the view that, during the period considered, the profitability of the Union industry had decreased by 66% and the return on investments had decreased by 57%. It based its assessments on the following data:

					2007	2008	2009	RIP
Net profit of EU sales to unrelated customers (% of net sales) Index (2007 = 100)					100	68	− 2	34
Return on investments (net profit in % of net book value of investments) Index (2007 = 100)					100	80	− 2	43

74      The statement in recital 58 of the contested regulation that during the RIP profits further decreased for the Union industry is difficult to understand, since in order to state that there has been a further decrease in profits a number of data must necessarily be taken into consideration and that statement gives no details of the data, other than those of the RIP, which were taken into account.

75      The Council accepts that it made a clerical error in that regard and states, in the defence, that when the institutions referred to the RIP, they meant to refer to the period considered.

76      In view of the context and, in particular, the data of the table in recital 55 of the contested regulation reproduced in paragraph 73 above, the penultimate sentence of recital 58 of the contested regulation must in fact be understood as referring not to the RIP, but to the period considered. Indeed, in recital 54 of the contested regulation, the Council had already stated that the profitability of the Union industry had decreased substantially by 66% between 2007 and the RIP. In addition, the statement that profits further decreased, which implies that they had already fallen previously, makes sense only if the data for the year 2007 is taken into account.

77      The applicants cannot claim that the Council’s assessment is vitiated by an error on the ground that various factors, including the Union industry’s profits, actually increased rather than fell during the RIP. That complaint presupposes that the data for the year 2009 is taken as the reference in order to evaluate the developments in question during the RIP. However, having regard to the context of recitals 39 to 56 of the contested regulation, the institutions could only have referred to the period concerned and, thus to the year 2007, in stating that the situation of the Union industry had deteriorated ‘even further’ during the RIP. Compared with the year 2007, the various indicators deteriorated in 2008 and also during the RIP.

78      Consequently, although the Council referred incorrectly to the RIP in the penultimate sentence of recital 58 of the contested regulation, it is apparent from the context that it meant to refer to the period concerned and that, on the basis of that period, the Council’s assessments are not vitiated by errors of fact. The applicants cannot therefore claim that there are errors of assessment concerning the existence of injury and a causal link on the ground that they are based on incorrect facts.

79      The second part of the second plea must therefore be rejected.

 The third part of the second plea in law

80      The applicants submit that in recital 60 of the contested regulation the Council committed an error of fact when it stated that ‘all the injury indicators mentioned by the Chinese exporter developed in a negative direction during the period considered’. In the applicants’ view, as they stated in their letter of 25 July 2011, the sales prices of the Union industry developed positively during the period considered. In addition, the applicants submit that, in recital 60 of the contested regulation, the Council incorrectly stated that, in their letter of 25 July 2011, they had only commented on the injury indicators examined in recitals 43 to 49 of the contested regulation.

81      In that regard, it must be pointed out that, in recitals 43 to 49 of the contested regulation, the Council analysed the development within the Union industry of (i) production, (ii) production capacity and production capacity utilisation rates, (iii) the level of stocks, (iv) sales volumes, (v) market share, (vi) growth and (vii) employment. With the exception of production capacity, which remained the same, all those factors developed unfavourably and, in that sense, in a negative direction, between 2007 and the end of the RIP.

82      Those indicators do not constitute all the indicators of injury taken into consideration by the Council. It also took into account workforce productivity, the unit sales price of the industry, wages, investments, profitability and return on investments as well as the cash flow and the ability to raise capital of the Union industry.

83      During the administrative procedure, the applicants did not simply refer the institutions to the indicators set out in recitals 43 to 49 of the contested regulation. In their letter of 25 July 2011, they also mentioned wages, return on investments and cash flow, and unit prices on the Union market. Of those other factors, unit prices increased, as is apparent also from recital 51 of the contested regulation.

84      It follows that the Council stated incorrectly, in recital 60 of the contested regulation, that ‘all’ the injury indicators mentioned by the applicants in their letter of 25 July 2011 had developed in a negative direction in the period considered. On the other hand, all the injury indicators set out in recitals 43 to 49 of the contested regulation did develop in a negative direction during the period considered.

85      Consequently, the Council committed an error, in recital 60 of the contested regulation, in stating that all the injury indicators mentioned by the applicants had developed in a negative direction during the period considered. On the other hand, the injury indicators set out in recitals 43 to 49 of the contested regulation did develop in a negative direction during the period considered.

86      The applicants submit that that error led to their rights of defence being infringed, since the Council failed to consider substantial arguments raised by them.

87      That complaint must be rejected. The fact that the institutions incorrectly assessed the scope of the arguments submitted by the applicants in their letter of 25 July 2011 does not imply that the applicants were not able to make their views known before the contested regulation was adopted (see paragraph 43 above). That assessment is, however, without prejudice to the consequences of that error for the validity of the contested regulation.

88      In addition, the applicants submit that the Council necessarily attributed to the allegedly negative development of the sales prices considerable importance in its conclusion concerning the existence of material injury suffered by the Union industry and its being caused by the Chinese imports.

89      The applicants’ assessment cannot be accepted. In the contested passage in recital 60 of the contested regulation, the Council only analysed the development of the injury indicators set out in recitals 43 to 49 of the contested regulation which did indeed develop in a negative direction during the period considered. The Council wrongly stated that those indicators were ‘all’ the injury indicators mentioned by the applicants in their letter of 25 July 2011. However, that error in no way implies that the sales prices — which were not one of the injury indicators set out in recitals 43 to 49 of the contested regulation — were considered by the institutions as having developed in a negative direction or that they attached considerable importance to them.

90      Lastly, the applicants dispute the alleged failure to take into account the development of sales prices by the institutions given the scope of Article 3(2) of the basic regulation. That complaint is independent from the error of law alleged by the applicants and is moreover one of the complaints set out in the third plea in law put forward by the applicants. It will therefore be assessed in the context of that plea (see paragraph 116 et seq. below).

91      Consequently, it must be found that the error in recital 60 of the contested regulation is a clerical error. None of the direct consequences of that error advanced by the applicants has been established. The third part of the second plea in law must therefore be rejected.

 Conclusion

92      In the light of the foregoing, it must be found that the Council made three clerical errors in recitals 58 and 60 of the contested regulation. Those errors are not in themselves sufficient to result in the annulment of the contested regulation, since none of them establishes the existence of a procedural or a substantive defect. They cannot therefore give good grounds for annulling the contested regulation. Accordingly, the second plea in law, alleging errors of fact, must be rejected.

 The third plea in law, alleging manifest errors of assessment

 Introduction

93      The applicants submit, in essence, that the Council infringed Article 11(2) and Article 3(2), (6) and (7) of the basic regulation in finding injury as well as a causal link between the imports allegedly dumped and the injury likely to continue should the anti-dumping measures be repealed. In the applicants’ view, those findings are based on several manifest errors of assessment.

94      Before analysing the various manifest errors of assessment alleged by the applicants, it should be borne in mind that, in the sphere of measures to protect trade, the institutions enjoy a broad discretion by reason of the complexity of the economic situations which they have to examine and that, therefore, the review by the EU judicature of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of those facts or a misuse of power (see, to that effect, judgment of 7 May 1991 in Nakajima v Council, C‑69/89, ECR, EU:C:1991:186, paragraph 86; Shanghai Bicycle v Council, cited in paragraph 28 above, EU:T:1997:134, paragraph 63; and judgment of 23 September 2009 in Dongguan Nanzha Leco Stationery v Council, T‑296/06, ECR, EU:T:2009:347, paragraphs 40 and 41).

95      In addition, in accordance with the first subparagraph of Article 11(2) of the basic regulation, in order for the Council to be able to retain an anti-dumping measure set to expire, it must determine in a review that the expiry of the anti-dumping measure would be likely to lead to a continuation or recurrence of dumping and injury.

96      Consequently, the Council must establish a link between the expiry of the anti-dumping measure, on the one hand, and the continuation or recurrence of injury, on the other, in order to extend the anti-dumping measures following a review. That analysis involves a prospective component, since it is necessary to determine, on the basis of the data of the review, the likelihood that the expiry of the anti-dumping measures will lead to a continuation or recurrence of dumping and injury. It has been held that the 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 (see judgment of 8 May 2012 in Dow Chemical v Council, T‑158/10, ECR, EU:T:2012:218, paragraph 22 and the case-law cited).

97      In addition, it is clear from the first subparagraph of Article 11(2) of the basic regulation that the mere possibility that dumping and injury might continue or recur is insufficient to justify retaining a measure; its retention is dependent on the competent authorities having actually established the likelihood of continuation or recurrence of dumping and of injury on the basis of an inquiry (see Dow Chemical v Council, cited in paragraph 96 above, EU:T:2012:218, paragraph 22 and the case-law cited).

98      The second subparagraph of Article 11(2) of the basic regulation sets out, non-exhaustively, three ways of positively finding that there is a likelihood of a continuation or recurrence of dumping and injury following a review. First, that finding may be based on evidence of continued dumping and injury caused by that dumping. Secondly, the finding may be based on evidence that the removal of injury is partly or solely due to the existence of anti-dumping measures. Thirdly, it may be based on evidence that the circumstances of the exporters, or market conditions, are such that they indicate the likelihood of further injurious dumping.

99      In the present case, the Council based the retention of the anti-dumping measures on the fact that, taking into account the trends relevant for the assessment of the likelihood of a continuation of injury during the period considered, the Union industry has suffered material injury during the RIP, despite the existence of the anti-dumping measures, and that there is a causal link between the dumped imports from China and the material injury suffered by the Union industry during the RIP (recitals 61 and 64 of the contested regulation).

100    Article 3 of the basic regulation establishes the framework for determining injury and lays down, in particular, certain criteria for such a determination. Article 11(2) of the basic regulation does not refer expressly to Article 3 in the event of a review.

101    However, when during an expiry review the likelihood that dumping and injury will continue or recur is demonstrated on the basis of evidence of continued dumping causing injury during the end of the period imposing a definitive anti-dumping duty, Article 3 of the basic regulation applies. That provision lays down in a general manner the criteria for determining the existence of injury. It transcribes, in the context of the imposition of anti-dumping measures, a more general principle which requires any authority, notwithstanding its broad discretion, to conduct a precise examination and to base its assessment on evidence of sufficient quality (see, by analogy, judgment of 15 February 2005 in Commission v Tetra Laval, C‑12/03 P, ECR, EU:C:2005:87, paragraphs 37 to 45).

102    In that regard, the Court notes that it has been held, in the context of Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1), that, in the course of a review, the analysis in order to determine whether the expiry of an anti-dumping measure previously imposed could once more lead to injury or to a threat of injury had to comply with the provisions of Article 4 of the that regulation, which governs injury (see, to that effect, judgment of 10 February 1998 in Commission v NTN and Koyo Seiko, C‑245/95 P, ECR, EU:C:1998:46, paragraph 41).

103    In accordance with Article 3 of the basic regulation, in order to determine injury, the Council must rely on positive evidence. It is required to carry out an objective examination, first, of the volume of the dumped imports and the effect of the dumped imports on prices in the European Union market for like products and, secondly, of the consequent impact of those imports on the Community industry (see Article 3(2) of the basic regulation).

104    The basic regulation states that the examination of the impact of the dumped imports on the Union industry is to include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry. Those factors include, inter alia, the fact that an industry is still in the process of recovering from the effects of past dumping, 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; actual and potential negative effects on cash flow, inventories, employment, wages, growth, and ability to raise capital or investments (see Article 3(5) of the basic regulation).

105    On the basis of all those factors, the EU authorities must demonstrate that the dumped imports are causing injury. This entails a demonstration that the volume of dumped imports and/or the effect of those imports on the price of the like products have a material impact on the Union industry (see Article 3(6) of the basic regulation).

106    Lastly, it is for the EU authorities to assess whether other known factors have contributed directly to the injury sustained by the Union industry in order to ensure that injury caused by those other factors is not attributed to the dumped imports. Those other factors include contraction in demand or changes in the patterns of consumption (see Article 3(7) of the basic regulation).

107    Thus, the Court of Justice has held that, in determining injury, the Council and the Commission are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from the subsidised imports and must disregard any injury deriving from other factors. It is for the EU institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Union industry (see, to that effect, judgment of 3 September 2009 in Moser Baer India v Council, C‑535/06 P, ECR, EU:C:2009:498, paragraphs 87 and 88).

108    In addition, it has been held that since the injury investigation must relate to a set of factors, any one of those factors cannot alone be the basis for a conclusive decision. The positive development of a factor does not preclude a finding of injury, provided that that finding is based on various factors which the basic regulation requires to be taken into consideration (see, to that effect, judgments of 30 March 2000 in Miwon v Council, T‑51/96, ECR, EU:T:2000:92, paragraph 105, and of 4 October 2006 in Moser Baer India v Council, T‑300/03, ECR, EU:T:2006:289, paragraph 213).

109    The complaints put forward by the applicants in their third plea in law must be examined in the light of all those factors.

 The first part of the third plea in law

–       The manifest errors of assessment and the infringements of Article 11(2) and Article 3(2), (6) and (7) of the basic regulation

110    The applicants claim, in essence, that the Council committed a manifest error of assessment in recital 59 of the contested regulation in examining the development of the injury indicators in the abstract, that is to say instead of in relation to the development of Union consumption which fell sharply. In the applicants’ view, as regards the weighing of factors required under the basic regulation, the Council erred in finding that the important injury indicators developed negatively, since the majority of them developed better than the market. The Council ought therefore to have analysed and set out the reasons why the alleged dumping caused injury notwithstanding the fact that the injury indictors analysed developed better than demand. That error implies that the assessment of the likelihood of the continuation of the injury was also flawed.

111    In the light of those complaints, it must be recalled that, in accordance with Article 3 of the basic regulation and the case-law, the injury investigation must relate to a set of injury factors, and any one of those factors cannot alone be the basis for a conclusive decision (see paragraph 108 above). In addition, it must be borne in mind that only a manifest error of assessment when examining injury may lead to the annulment of the contested regulation (see paragraph 94 above).

112    In recital 59 et seq. of the contested regulation, the Council set out certain conclusions regarding the economic situation of the Union industry. In recital 59 of the contested regulation, it stated as follows:

‘Between 2007 and the RIP, and notwithstanding the existence of the anti-dumping measures, a number of important indicators developed negatively: profitability decreased by 4.9 percentage points, production and sales volumes decreased by 35% and 50% respectively, capacity utilisation went down by 35% and was followed by a decrease in employment. Although a part of these negative developments may be explained by the strong decrease in consumption, which declined by 40% over the period considered, the Union industry’s further decrease in market share (down by 4 percentage points between 2007 and the RIP) and the constant increase in market share of imports from the PRC is a clear sign of the increasing pressure resulting from the dumped Chinese imports. Given the quasi monopoly already reached by the Chinese imports in the Union market, any further increase of Chinese imports, also because of their significantly low prices, may reduce the level of production utilisation of the Union industry under the minimum necessary to ensure its sustainability. In this respect, it is recalled that two Union producers have been forced to leave the hand pallet truck business in the course of the period considered, as already mentioned at recital 47 above.’

113    It is apparent from that recital that, contrary to the applicants’ arguments, the Council did not implicitly refer to the contraction in demand. The Council expressly referred to the ‘strong decrease in consumption, which declined by 40% over the period considered’.

114    In addition, it cannot be found that the Council did not examine or take into account the development in Union consumption. Indeed, the Council took the view that part of the negative developments of profitability, production, sales volumes, capacity utilisation and employment could be accounted for by the strong decrease in consumption, but that that negative development could not be explained solely by the strong decrease in consumption, since the Union industry’s market share decreased and the market share of imports from China increased.

115    The applicants also complain, however, that the Council based its assessment on the premiss that the important injury indicators developed negatively whereas, in their view, they developed positively in relation to demand. They complain that the Council failed to explain why it concluded that the alleged dumping caused injury despite the fact that the analysed injury indicators developed better than demand. In the applicants’ view, the development of the injury indicators contradicts a finding of dumping.

116    With regard to those arguments, it must be pointed out that the tables in recitals 39 to 56 of the contested regulation refer as follows to the development of the various parameters relied on in recital 59 of the contested regulation and challenged by the applicants:

Index (2007 = 100)			2007	2008	2009	RIP
Total EU consumption			100	84	49	60
Net profit of EU sales to unrelated customers (% of net sales)			100	68	− 2	34
Production (pieces)			100	84	55	65
Production capacity utilisation			100	84	55	65
EU sales volumes to unrelated customers (pieces)			100	79	55	50
Employment product concerned (persons)			100	84	76	83

117    On the basis of that data, it must be pointed out that each of those injury indicators developed in a negative direction when the situation for the year 2007 is compared to that at the end of the RIP. Consequently, the applicants are incorrect to refer to a positive development and to complain that the Council made its assessment on the basis of an incorrect premiss.

118    In addition, in so far as the applicants complain that the Council failed to analyse or explain why it concluded that the alleged dumping caused injury despite the fact that the injury indicators developed ‘better’ — that is to say ‘less negatively’ — than demand, it must be pointed out that that complaint is aimed more at the merits of the grounds set out in the contested regulation rather than their formal adequacy, so that the complaint falls outside the scope of Article 296(2) TFEU (see, to that effect, judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraphs 66 to 68). In addition, it must be found, first of all, that all the factors in question did not, in all cases, develop ‘less negatively’ than demand. As is apparent from the table in paragraph 116 above, in 2008 and during the RIP, the volume of sales fell more sharply than demand. In addition, the net profitability of sales of EU sales to unrelated customers developed ‘more negatively’ than demand during the entire period. It cannot therefore be found that the injury indicators and demand always followed the same trend.

119    Next, it must be pointed out that the Council took into account the fact that demand fell considerably and even more sharply than certain injury factors. Indeed, it stated, in recital 59 of the contested regulation, that demand declined by nearly 40%, that is more than the 35% fall in production and the 35% fall in capacity utilisation also referred to in that recital. However, although the Council accepted that part of those negative developments of the injury factors at issue could be explained by the decline in demand, it took the view that that development of the injury factors could be explained by other elements, namely the Union industry’s further decrease in market share and the consistent increase in imports from China.

120    It cannot therefore be complained that the Council failed to analyse and explain why it concluded that there was injury caused by the dumped Chinese imports despite the fact that, in the applicants’ view, the injury indicators developed ‘less negatively’ than demand.

121    In so far as the applicants submit that the injury indicators contradict a finding of injurious dumping, it must be noted that their argument is tantamount to stating that because demand fell more sharply than production, capacity utilisation, sales volumes and employment, there could be no dumping. Such an analysis is, however, erroneous, because it fails to take into account all the relevant factors. More particularly, the fact that the injury indicators in question fell less sharply than demand does not allow the EU institutions to disregard the development of the Union industry’s market shares and the imports from China and their prices. Indeed, it has been held that it cannot be denied that the development of the Community industry’s market share constitutes a significant factor for an assessment of the existence of material injury to that industry (judgment of 14 March 2007 in Aluminium Silicon Mill Products v Council, T‑107/04, ECR, EU:T:2007:85, paragraph 65).

122    The applicants also incorrectly rely in support of their arguments on paragraph 88 of the judgment in Aluminium Silicon Mill Products v Council, cited in paragraph 121 above (EU:T:2007:85). In that judgment, the Court found that the fact that the decrease in the Community industry’s sales volumes exactly reflected that of the contraction in demand cast doubt on the Council’s assertion that the decrease in the Community industry’s sales volumes was due to price undercutting by the exporting producers. The Court found that a reasonable explanation for that decrease could be the contraction in Community demand and that that decisive element was not taken into consideration by the Council. However, the present case may be distinguished from the judgment in Aluminium Silicon Mill Products v Council, cited in paragraph 121 above (EU:T:2007:85). First, in this case, the decrease in the industry’s sales volumes does not exactly reflect that of the contraction in demand: in 2008 and during the RIP, the sales volumes fell more sharply than demand and, in 2009, by contrast, demand fell more sharply than sales volumes. Secondly, it cannot be considered, in the present case, that the fall in sales in relation to the fall in demand was not taken into consideration by the Council, since the latter acknowledges that the fall in sales volumes is attributable in part to the fall in consumption (see paragraphs 118 and 119 above).

123    The applicants also complain that the Council failed to set out why the fact that two Union producers exited the Union market could not be explained solely by the decrease in demand. The applicants thus challenge the validity of the inference drawn by the Council from the exit of the two producers.

124    In that regard, it must be borne in mind that, in recitals 47 to 59 of the contested regulation, the Council considered that the fact that two Union producers of hand pallet trucks had stopped manufacturing those trucks on the Union market during the period between 2007 and the RIP stemmed from the increased pressure that the dumped Chinese imports had been exercising on the Union market, that pressure being felt even more by the Union industry in a situation of strongly decreasing consumption.

125    In a context in which Chinese imports increased in volume and maintained significantly low prices (see recital 64 of the contested regulation), that assessment is not manifestly incorrect. Indeed, dumped imports make European producers less competitive and those producers which are the least competitive are all the more affected by a drop in demand. Thus, it is not manifestly incorrect to consider that the increase of very low price Chinese imports contributed, in a context of falling demand, to those producers leaving the hand pallet truck business. Even if that cessation cannot be attributed to those factors, such an error is not sufficient to invalidate the institutions’ assessment. Indeed, that cessation is relied on only as one of the additional factors in recital 59 of the contested regulation.

126    Lastly, as regards the applicants’ reliance on the alleged failure to consider the ‘economic downturn’, it must be pointed out that, contrary to what the Council contends, that complaint is aimed at the alleged failure to take sufficient account of the fall in demand and the other injury indicators. Thus, contrary to the Council’s contention, it is not a new plea in law or new complaint. The answer to that complaint is set out in paragraph 119 above.

127    For the above reasons, the applicants are incorrect to claim that the Council committed a manifest error of assessment or infringed Article 11(2) of the basic regulation and Article 3(2), (6) and (7) of that regulation when analysing the development of demand and the other injury factors in recital 59 of the contested regulation.

–       Failures to state reasons

128    The applicants submit that there have been failures to state reasons on the ground that, first, the Council was silent as to the impact of the contraction in demand in the passage of the contested regulation dealing with the impact of dumped imports and other factors and, secondly, the Council failed to set out why the fact that two Union producers exited the Union market could not be explained solely by the decrease in demand.

129    In that regard, it must be recalled that the statement of reasons required by Article 296(2) TFEU must disclose in a clear and unequivocal fashion the reasoning of the European Union authority which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the Courts of the European Union to exercise their powers of review (judgments of 30 September 2003 in Eurocoton and Others v Council, C‑76/01 P, ECR, EU:C:2003:511, paragraph 88, and judgment of 12 October 1999 in Acme v Council, T‑48/96, ECR, EU:T:1999:251, paragraph 141).

130    The statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it fulfils the applicable requirements must be assessed with reference not only to the wording of the measure but also to its context, and to the whole body of legal rules governing the matter in question. In addition, it must be borne in mind that the institutions are not required to adopt a position on all the arguments relied on before them by the parties concerned. It is sufficient for the institution which adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation (see, to that effect, judgments of 11 January 2007 in Technische Glaswerke Ilmenau v Commission, C‑404/04 P, ECR, EU:C:2007:6, paragraph 30, and of 13 September 2010 in Whirlpool Europe v Council, T‑314/06, ECR, EU:T:2010:390, paragraphs 113 and 114).

131    As regards the first failure to state reasons alleged by the applicants in paragraph 128 above, the Court points out that the first sentence of recital 62 of the contested regulation, under heading 5.1. ‘Impact of the dumped imports’, reads as follows:

‘Despite a decrease in consumption in the European Union over the period considered, the volume of imports from the country concerned did not decrease at the same rate, thereby resulting in the Chinese imports further increasing their market share.’

132    Consequently, the Council was not silent as to the impact of the contraction in demand in the section of the contested regulation dealing with the impact of dumped imports. In addition, the Council’s reasoning is sufficiently clear to enable the persons concerned to ascertain the reasons for the measure adopted in order to defend their rights and the Courts of the European Union to exercise their powers of review. Accordingly, the applicants’ first complaint alleging a failure to state reasons set out in paragraph 128 above must be rejected.

133    As regards the second failure to state reasons alleged in paragraph 128 above, it must be pointed out that, although the applicants formally allege a failure to state reasons, they are repeating a complaint regarding the merits of one of the Council’s assessments (see paragraph 123 et seq. above). Further, in any event, having regard to recitals 47 and 59 of the contested regulation, it must be found that the Council set out its reasoning sufficiently clearly to enable the persons concerned to ascertain the reasons for the measure adopted in order to defend their rights and to enable the Courts of the European Union to exercise their powers of review. Consequently, the second complaint alleging a failure to state reasons set out in paragraph 128 above must also be rejected.

134    Lastly, even if the complaints set out in paragraphs 118 and 123 above must be interpreted as relating to a failure to state reasons, they must be rejected in accordance with the case-law set out in paragraph 129 above. As regards the existence of injury despite the development of the injury factors and the inferences drawn from the cessation of production of two producers, it must be found that the applicants were able, on the basis of the recitals of the contested regulation, to defend their rights and the Court was able to exercise its power of review over those recitals.

–       Conclusion

135    For all the foregoing reasons, the first part of the third plea in law must be rejected.

 The second part of the third plea in law

–       Introduction

136    In the second part of the third plea in law, the applicants submit, in essence, that the assessments made in recitals 58, 59, 61, 62 and 64 of the contested regulation are vitiated by errors of fact, manifest errors of assessment or by a lack of reasoning in that it is concluded therein that the injury sustained by the Union industry is attributable to the imports allegedly dumped. The obvious impact of the contraction in demand was disregarded or the Council’s considerations in relation thereto were not reasoned.

–       The assessments in recitals 58 and 59 of the contested regulation

137    As regards recitals 58 and 59 of the contested regulation, the applicants repeat that the Council committed errors of fact or assessment, taking the view that the Council’s entire causation argument is vitiated by errors in fact and manifest errors of assessment.

138    For the reasons set out in the assessment of the second plea in law and the first part of the third plea in law, those complaints must be rejected. The applicants cannot therefore challenge the existence of a causal link on the basis of the abovementioned errors.

–       The assessments in recital 61 of the contested regulation

139    In the contested regulation, the Council found that the market shares, demand, profitability, production, sales volumes, capacity utilisation rate and employment had developed as follows:

Index (2007 = 100)			2007	2008	2009	RIP
Market share of the EU industry			100	95	111	84
Total EU consumption (pieces)			100	84	49	60
Net profit of EU sales to unrelated customers (% of net sales)			100	68	− 2	34
Production (pieces)			100	84	55	65
Production capacity utilisation			100	84	55	65
EU sales volumes to unrelated customers (pieces)			100	79	55	50
Employment product concerned (persons)			100	84	76	83

140    The Council took the view, in recital 61 of the contested regulation, that:

‘However, while it is true that Union consumption decreased by 40% over the period considered, Chinese exporters managed to significantly gain market share at the same time at the expense of the Union industry. In addition, as explained in recital 58 above, it is recalled that the impact of dumped imports was actually more injurious during the period of weak demand.’

141    The applicants submit, in essence, that the Council’s assessment in the second sentence of the passage in recital 61 of the contested regulation cited in paragraph 140 above is contradictory and contrary to the facts, because the market share of the Union industry increased by 16 points in 2009, whereas the other important indicators mentioned by the Council, in recital 58 of the contested regulation, fell to their lowest levels. No conclusions on causation can be drawn from the market share changes.

142    In that regard, it must be borne in mind that, for the reasons set out in paragraph 66 et seq. above, the Council correctly took the view, in recital 58 of the contested regulation, that, for the period between the beginning of the year 2009 and the end of the RIP, the market share of the Union industry substantially decreased (− 27 points).

143    In addition, it is correct that, during the year 2009, consumption fell considerably (− 51 points in relation to the index of 100 which represents consumption for the year 2007) whereas the Union industry’s market share increased (+ 11 points in relation to the index of 100 which represents the industry’s market share for the year 2007).

144    However, as stated by both the applicants and the Council, market shares can develop independently from consumption: they can equally be lost or won in growing or in contracting markets. In the present case, the increase in the Union industry’s market share in 2009 was at the expense of that industry’s profitability in 2009 which was negative (− 2 points compared with the year 2007). During the RIP, that profitability became positive again, but the market share of the Union industry fell.

145    In addition, it must be borne in mind that, in recital 7 of the contested regulation, the Council stated that the examination of the trends relevant for the assessment of the likelihood of a continuation or recurrence of injury covered the period from 1 January 2007 to the end of the RIP. Although during that period the industry’s market share increased, that increase was brief. Compared with the year 2007, the Union industry’s market share fell in 2008 and again during the RIP. Admittedly, that market share increased in 2009. However, an analysis of the entire period considered, such as that in the case-law cited in paragraph 108 above, reveals that the Union’s market share tended to fall during that period as a whole, with the exception of the period between the beginning of the year 2009 and the beginning of the RIP. The fact that, between the beginning of 2009 and the RIP, the market shares increased in relation to 2007 does not affect the assessment that over the whole of the period considered the Union’s market share tended to fall.

146    Accordingly, the applicants are wrong to claim that the Commission committed a manifest error of assessment in recital 61 of the contested regulation on the ground that it disregarded the contradictions between the development of the market shares and that of the other injury indicators. They cannot allege an infringement of Article 3(2), (6) and (7) and Article 11(2) of the basic regulation in that regard.

–       The assessments in recital 62 of the contested regulation

147    In recital 62 of the contested regulation, the Council stated as follows:

‘Despite a decrease in consumption in the European Union over the period considered, the volume of imports from the country concerned did not decrease at the same rate, thereby resulting in the Chinese imports further increasing their market share. In the absence of cooperation from Chinese exporting producers, price undercutting and underselling were calculated on the basis of best facts available, which included various sources of information i.e. Eurostat data, offers from Chinese exporting producers as submitted by the applicants, and export invoices collected from Member States’ customs authorities. The imports from the country concerned were found to clearly undercut the prices of the Union industry by between 43% and 78%, depending on the source of information used.’

148    The applicants allege that in its assessment of the factors other than dumped imports, the Council did not take into consideration the impact of the decrease in consumption. However, given the first sentence of recital 62 set out in paragraph 147 above, that allegation is unfounded.

149    The applicants also allege that the Council did not provide any reasoning as to its assessment of the impact of the decrease in consumption and that the assessment in recital 62 of the contested regulation is circular without any ‘reasoning in substance’ or ‘actual [reasoning]’.

150    In the light of that complaint, it must be found that the applicants misconstrue the scope of the obligation to state reasons.

151    Indeed, a claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the decision are inaccurate, the latter plea being a matter to be reviewed by the Court when it examines the substance of that decision (see, to that effect, Commission v Sytraval and Brink’s France, cited in paragraph 118 above, EU:C:1998:154, paragraph 67; judgment of 14 May 1998 in Gruber + Weber v Commission, T‑310/94, ECR, EU:T:1998:92, paragraph 41; and judgment of 14 May 1998 in BPB de Eendracht v Commission, T‑311/94, ECR, EU:T:1998:93, paragraph 66). The statement of reasons required by Article 296(2) TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, to that effect, Commission v Sytraval and Brink’s France, cited in paragraph 118 above, EU:C:1998:154, paragraph 63 and the case-law cited).

152    In the present case, it is apparent from recital 62 of the contested regulation that the Council set out its reasoning clearly and unambiguously. It stated that although consumption had indeed fallen, the imports from China did not fall at the same rate so that they gained market share. The applicants’ contention that the argument is circular and without any ‘reasoning in substance’ shows that they seek to confuse form and substance and constitutes the implicit acknowledgement that there is a formal statement of reasons. Consequently, the complaint alleging a failure to state reasons must be rejected. In addition, for the reasons set out in paragraph 112 et seq. and in paragraph 148 above, the applicants’ complaint that the impact of the contraction in consumption was not taken into consideration must also be rejected on its merits.

153    The applicants again challenge the assessment that market shares cannot be won or lost ‘despite’ changes in market size.

154    In that regard, the Court notes that market shares can indeed be won or lost both in a growing market and a contracting one. However, as there is no direct correlation between the development of demand and the development of market share, a fall in demand will not give rise, in the absence of other factors, to a change in the market shares of the various competitors on that market. It is normally the commercial policies implemented by the competitors on the market in question following a reduction in demand which are likely to change the division of the market between competitors. Since generally, in the absence of other factors, a reduction in demand does not affect the division of market shares between competitors, it is not manifestly incorrect to take the view that when the division of the market between competitors has changed following a reduction in demand, that division has been achieved ‘despite’ that reduction in demand. In addition, there is nothing to indicate that the Commission overestimated the importance of the pressure exerted by the Chinese imports. As the Council argues, the term ‘despite’ does not indicate that it attributed more importance to the decrease in demand than to the increased market share of the dumped imports or the considerable undercutting, also mentioned in recital 62 of the contested regulation. The use of that term indicates that the institutions have taken into consideration the decrease in demand.

155    Accordingly, for the above reasons, all the applicants’ complaints relating to recital 62 of the contested regulation must be rejected.

–       The assessments in recital 64 of the contested regulation

156    In recital 64 of the contested regulation, the Council stated:

‘As shown under recital 41 [of the contested regulation,] the imports from the country concerned have increased in terms of market share over the period considered, and this despite a significant drop in Union consumption. This has increased the market share held by Chinese imports to 83% of Union consumption during the RIP. This increased pressure in terms of volumes, despite an overall shrinking demand, has been coupled with significantly low Chinese import prices to the Union, which considerably undercut the prices of the Union industry. It is therefore concluded that there is a causal link between the dumped imports from the PRC and the material injury suffered by the Union industry during the RIP.’

157    The applicants challenge the assessment that the market shares of Chinese imports increased at the expense of those of the Union industry. They state that the market share of the Chinese imports did not increase consistently. In their view, there is no conclusive tendency which would allow a finding on the development of the market shares. The fact that the market share of Chinese imports during the RIP was temporarily higher than in 2007 is nothing but a momentary coincidence.

158    In that regard, it must be borne in mind that, in accordance with the data of tables 2 and 7 set out in recitals 41 and 47 of the contested regulation, the market shares of the Chinese industry and the Union industry developed as follows:

			2007	2008	2009	RIP
Market share of imports from RPC and Thailand			78%	80%	78%	83%
Market share of the Union industry Index (2007 = 100)			100	95	111	84

159    It is apparent from that data that there was not a consistent increase in the market share of the imports in question. In recital 64 of the contested regulation, the Council did not moreover refer to a ‘constant’ increase. On the other hand, it did incorrectly refer to such an increase in recital 59 of the contested regulation. That error does not, however, affect that assessment in recital 64 of the contested regulation, since if the period from 1 January 2007 to the end of the RIP is taken into account, there was a consistent increase in the market shares of the imports, with the exception of the year 2009 when they fell back to the 2007 level, before rising to 83% during the RIP. Consequently, the Council did not commit a manifest error of assessment in taking the view that the market shares of the imports in question increased.

160    In addition, during the period between 2007 and the end of the RIP, the market share of the Union industry fell (− 16 points). That fall was not, however, a consistent one as incorrectly stated in recital 72 of the contested regulation. In 2009, the market share of that industry increased (+ 11 points compared with 2007) before falling, during the RIP, to a level below those of 2007 and 2008. The mischaracterisation of the reduction in the Union’s market share as ‘consistent’ does not, however, affect the Council’s assessment in recital 64 of the contested regulation set out in paragraph 156 above. It does not therefore affect the assessment of a causal link between the dumped imports from China and the material injury suffered by the Union during the RIP.

161    As regards the applicants’ argument challenging the assessment in recital 64 of the contested regulation because of the use of the word ‘despite’ when the fall in consumption in the European Union was referred to, that argument must be rejected for the reasons set out in paragraph 154 et seq. above, which may be applied to the present situation.

162    The applicants further submit that, in the third sentence of recital 64 of the contested regulation (‘This increased pressure in terms of volumes, despite an overall shrinking demand, has been coupled with significantly low Chinese import prices to the Union, which considerably undercut the prices of the Union industry’), the Council attempted to establish that Chinese imports increased in absolute terms, which is not supported by the facts as set out in table 2 in recital 41 of the contested regulation.

163    In the light of that complaint, it must be borne in mind that table 2 contains, inter alia, the following data:

	2007	2008	2009	RIP
Volume of imports from the country concerned (pieces)	612 222	522 573	300 222	387 907
Index (2007 = 100)	100	85	49	63

164    As the applicants state, the volume of imports fell in relation to 2007, and there is a certain parallelism with the fall in demand. In absolute terms, the volume of Chinese imports did not increase in relation to 2007.

165    However, during the RIP, the volume of imports and the market share of the Chinese imports increased whereas the EU sales volumes to unrelated customers continued to fall and the market share of the Union industry also fell (see tables 6 and 7 of the contested regulation and the tables set out in paragraphs 139 and 158 above).

166    In addition, the words ‘[t]his increased pressure in terms of volumes’ in recital 64 of the contested regulation must not be construed as referring to the development of the volume of Chinese imports in absolute terms, but to the preceding sentence, in which the Council correctly states that, during the RIP, the market share held by Chinese imports increased to 83% of Union consumption compared with 78% in 2007, 80% in 2008 and 78% in 2009. In other words, during the RIP, the growth in market share coincided with an increase in the volume of Chinese imports compared with 2009, even if that increase remains below the volume of imports for 2007 and 2008.

167    Consequently, the applicants are incorrect to state that in the third sentence of recital 64 of the contested regulation the Council attempted to establish that the Chinese imports had grown in absolute terms.

168    The applicants further submit that the conclusion that the prices of Chinese imports undercut the prices of the Union industry is not, in itself, an assessment of the impact that such undercutting might have on prices. In addition, the fact that the Union industry’s sales prices consistently increased throughout the period considered belies the assertion that the Chinese imports had an impact on those prices. This casts doubt on the Council’s implicit and unreasoned claim that there is a causal link between the Chinese imports and the injury suffered by the Union industry. Against this background of the increase in the Union industry’s sales prices, the mere assertion as to what the impact of the imports on the Union industry’s prices was and why that impact caused injury constitutes a manifest error of assessment or a failure to state reasons.

169    In that regard, it must be recalled that, under Article 3(2)(a) of the basic regulation, a determination of injury must be based on positive evidence and involve an objective examination of the volume of the dumped imports and the effect of the dumped imports on prices in the European Union market for like products.

170    In addition, the data of tables 2 and 10 set out in recitals 41 and 51 of the contested regulation must be taken into account.

		2007	2008	2009	RIP
Unit price EU market (EUR/piece) Index (2007 = 100)		100	101	103	104
Volume of imports from the country concerned		100	85	49	63
Price of imports from the country concerned Index (2007 = 100)		100	96	104	101

171    It follows from that data that the dumped imports did not lead to a reduction of the prices of like products on the EU market.

172    The Council did not, however, find that there was injury on that basis. Contrary to the applicants’ claims, in recital 64 of the contested regulation, the Council did not state that the Chinese imports had had an effect on the Union industry’s sales prices (see paragraph 156 above). In recitals 62 and 64 of the contested regulation, the Council took the view that there was injury because of the considerable undercutting of the prices of the Union industry by Chinese imports (by between 43% and 78%) and the increase in market share of the Chinese imports. The applicants have not challenged the existence of such considerable undercutting.

173    Consequently, the applicants’ complaint that the Council failed to examine the effect of the imports on the prices of like products on the EU market in establishing injury in accordance with Article 3(2)(a) of the basic regulation is ineffective.

174    In addition, the applicants cannot complain that the Council failed to assess the effect of the undercutting on Union prices. As the Council correctly states, Article 3(2)(a) of the basic regulation does not require the impact of an undercutting on Union prices to be assessed.

175    The applicants submit that the fact that in 2009 when the full extent of the negative pressure exerted by the Chinese imports was allegedly felt, sales prices of the Union industry actually increased rather than fell, belies the Council’s assertion that the Chinese imports had an impact on the sales prices of the Union industry.

176    In that regard, it must be pointed out, first of all, that the fact the prices of the Union industry rose marginally, yet steadily during the period considered, cannot call into question the existence of the considerable undercutting of those prices by the Chinese imports. Next, it must be noted that in 2009 the prices of the Chinese imports had also increased (see the table set out in paragraph 170 above) and that the net profitability of EU sales to unrelated customers was negative (see the table set out in paragraph 139 above). Those two factors make the reduction of prices on the part of the Union industry more difficult. Lastly, in answer to a written question from the Court, the Council showed that the Union industry’s prices increased below inflation over the period considered. Consequently, the applicants wrongly claim that the increase in the Union industry’s prices belies the Council’s assertion that the Chinese imports had an impact on the sales prices of the Union industry.

177    In the light of all the above factors, the applicants’ complaint that the Council committed manifest errors of assessment in recital 64 of the contested regulation must be rejected.

178    Lastly, the applicants wrongly complain that the Council failed to give reasons for the existence of a causal link between the Chinese imports and the injury sustained by the Union industry. The grounds on which the Council took the view that there was such a link are disclosed in a clear and unequivocal fashion in recital 64 of the contested regulation, all the more so since the applicants have been able, on the basis of that reasoning, to challenge the merits of the assessment by pleading manifest errors of assessment on the part of the Council.

179    For all the foregoing reasons, it is necessary to reject the second part of the third plea in law and, consequently, the third plea in law in its entirety.

180    Lastly, in their second plea in law, the applicants allege, in addition to errors of fact, also that, in recitals 61, 64 and 68 of the contested regulation, the Council committed a manifest error of assessment in failing to evaluate the injury information available over the entire period considered and in confining itself to finding injury during the RIP. In that regard, it must be pointed out that, although in those recitals the Council emphasised the presence of injury during the RIP, it cannot be claimed that it failed to evaluate the injury information available over the entire period considered. It is apparent from all the recitals of the contested regulation before recital 68 and, in particular, recitals 59 to 64, that the Council evaluated the injury information available over the entire period considered. The second plea in law must therefore also be rejected in its entirety.

–       Conclusion

181     In the light of the foregoing, all the complaints alleging errors of assessment must be rejected and, therefore, the action must be dismissed in its entirety.

 Costs

182    At the hearing, the applicants requested that, should the form of order sought by them not be granted, certain errors in the reasoning of the contested regulation should be taken into account when deciding on the award of costs.

183    Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 87(3) provides that where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bear its own costs.

184    In the present case, the Council requested that the applicants be ordered to pay the costs and the applicants have been unsuccessful. It must, however, be taken into account that there are several errors in recitals 58 and 60 of the contested regulation (see paragraph 92 above). In the light of those factors, the applicants must, in addition to bearing their own costs, be ordered to pay four fifths of the costs incurred by the Council.

185    In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Crown Equipment (Suzhou) Co. Ltd and Crown Gabelstapler GmbH & Co. KG to bear their own costs and to pay four fifths of those incurred by the Council of the European Union;

3.      Orders the Council to bear one fifth of its own costs;

4.      Orders the European Commission to bear its own costs.

Prek Labucka Kreuschitz

Delivered in open court in Luxembourg on 12 December 2014.

[Signatures]

Table of contents

Background to the dispute

Procedure and forms of order sought

Law

1. Admissibility

2. Substance

The first plea in law, alleging that the applicants’ procedural rights have been infringed

The second plea in law, alleging errors of fact

Introduction

The first part of the second plea in law

The second part of the second plea in law

The third part of the second plea in law

Conclusion

The third plea in law, alleging manifest errors of assessment

Introduction

The first part of the third plea in law

– The manifest errors of assessment and the infringements of Article 11(2) and Article 3(2),(6) and (7) of the basic regulation

– Failures to state reasons

– Conclusion

The second part of the third plea in law

– Introduction

– The assessments in recitals 58 and 59 of the contested regulation

– The assessments in recital 61 of the contested regulation

– The assessments in recital 62 of the contested regulation

– The assessments in recital 64 of the contested regulation

– Conclusion

Costs

* Language of the case: English.

1 This judgment is published in extract form.