Language of document : ECLI:EU:T:2012:135

JUDGMENT OF THE GENERAL COURT (Second Chamber)

21 March 2012 (*)

(Dumping – Imports of salmon originating in Norway – Definition of the Community industry – Like product – Composition of the sample of Community producers)

In Case T‑113/06,

Marine Harvest Norway AS, successor in law to Fjord Seafood Norway AS, established in Bergen (Norway),

Alsaker Fjordbruk AS, established in Onarheim (Norway),

represented by J.M. Juuhl-Langseth and P. Dyrberg, lawyers,

applicants,

v

Council of the European Union, represented by J.-P. Hix and B. Driessen, acting as Agents, and by G. Berrisch, lawyer,

defendant,

supported by

European Commission, represented initially by P. Stancanelli and K. Talabér-Ritz, and subsequently by K. Talabér-Ritz, T. Scharf and H. van Vliet, acting as Agents, and by E. McGovern, Barrister,

intervener,

APPLICATION for annulment of Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway (OJ 2006 L 15, p. 1),

THE GENERAL COURT (Second Chamber),

composed of N.J. Forwood, President, F. Dehousse and A. Popescu (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 12 July 2011,

gives the following

Judgment

 Background to the dispute

1        On 6 March 2004, the Commission of the European Communities, acting pursuant to Council Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports and repealing Regulation (EC) No 518/94 (OJ 1994 L 349, p. 53) and to Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries and repealing Regulations (EEC) No 1765/82, (EEC) No 1766/82 and (EEC) No 3420/83 (OJ 1994 L 67, p. 89), opened a safeguard investigation concerning imports of farmed salmon.

2        In parallel to the safeguard investigation, on 8 September 2004, a complaint concerning imports of farmed salmon originating in Norway was lodged by the European Salmon Producers Group on behalf of producers representing a major proportion of the Community production of farmed salmon.

3        Following that complaint, the Commission opened an anti-dumping proceeding concerning imports of farmed salmon originating in Norway, in accordance with Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended (‘the basic regulation’) (replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 22, p. 7)), and in particular in accordance with Article 5 of the basic regulation (now Article 5 of Regulation No 1225/2009). Notice of initiation of that proceeding was published in the Official Journal of the European Union of 23 October 2004 (OJ 2004 C 261, p. 8).

4        The investigation into the dumping and the injury arising from it covered the period from 1 October 2003 to 30 September 2004 (‘the investigation period’). The examination of the trends relevant for assessing injury covered the period from 1 January 2001 to the end of the investigation period. The period used for the findings on undercutting, underselling and injury elimination is the same as the investigation period.

5        The product concerned by the investigation was farmed (other than wild) salmon, whether or not filleted, fresh, chilled or frozen (‘the product concerned’). That definition excluded any other similar farmed fish products such as large (salmon) trout, biomass (live salmon) as well as wild salmon and any other type of processed salmon such as smoked salmon.

6        In view of the large number of exporting producers of the product concerned in Norway and the large number of producers of the same product in the European Union, the Commission indicated that it was planning to use the sampling technique in that investigation. In its determination of the dumping issue, the Commission, acting pursuant to Article 17 of the basic regulation (now Article 17 of Regulation No 1225/2009), chose a sample of 10 Norwegian exporting producers for the purposes of the investigation. For the purposes of determining the injury, the sample of Community producers was established on the basis of the largest representative production volume which the investigation could reasonably cover, and ultimately included five companies.

7        On 22 April 2005, the Commission adopted Regulation (EC) No 628/2005 imposing a provisional anti-dumping duty on imports of farmed salmon originating in Norway (OJ 2005 L 104, p. 5) (‘the provisional regulation’). Those provisional anti-dumping duties, which took the form of ad valorem duties ranging between 6.8% and 24.5% of the value of the imported products, applied as of 27 April 2005.

8        On 30 June 2005, the Commission, through Regulation (EC) No 1010/2005 amending Regulation No 628/2005 (OJ 2005 L 170, p. 32), amended the form of the provisional measures, replacing ad valorem duties with minimum import prices (‘MIP’) for the different presentations of farmed salmon, and extended the application of the provisional measures by three months.

9        On 28 October 2005, the Commission sent Fjord Seafood Norway AS (‘FSN’) the final disclosure document detailing the facts and grounds on the basis of which it was proposing to adopt definitive anti-dumping measures. By letter of 8 November 2005, FSN submitted its observations on the final disclosure document. By letter of the same date, Alsaker Fjordbruk AS also submitted its observations.

10      On 22 December 2005, the Commission sent the Council of the European Union its proposal for a regulation imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway.

11      On 17 January 2006, the Council adopted Regulation (EC) No 85/2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway (OJ 2006 L 15, p. 1) (‘the contested regulation’). The contested regulation imposed definitive anti-dumping duties on the imports concerned, consisting in a combination of fixed and variable duties.

12      Under Article 1(4), the contested regulation thus imposed a definitive anti-dumping duty, the amount of which was to be the difference between the MIP fixed in paragraph 5 of that article and the net free-at-Community-frontier price, before duty, if the latter was lower than the former. No duty was to be collected where the net free-at-Community-frontier price was equal to or higher than the corresponding MIP fixed in Article 1(5) of the contested regulation. Under Article 1(5) of the contested regulation, where it was found, following post-import verification, that the net free-at-Community-frontier price actually paid by the first independent customer in the European Union (post-importation price) was lower than the net free-at-Community-frontier price, before duty, as resulting from the customs declaration, and that the post-importation price was lower than the MIP, a fixed anti-dumping duty was to apply.

 Procedure and forms of order sought

13      By application lodged at the Registry of the General Court on 10 April 2006, FSN, Fjord Seafood Scotland Farming Ltd and Alsaker Fjordbruk brought the present action.

14      On 14 July 2006, the Commission applied for leave to intervene in support of the form of order sought by the Council. By order of 7 September 2006, the President of the Fourth Chamber of the Court granted leave to intervene. By document lodged at the Registry of the Court on 5 October 2006, the Commission informed the Court that it was waiving its right to lodge a statement in intervention.

15      On 22 February 2007, the present case was reassigned to a new Judge-Rapporteur sitting in the First Chamber. After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fifth Chamber.

16      By document lodged at the Court Registry on 2 July 2009, Fjord Seafood Scotland Farming discontinued its action in the present case. By order of the President of the Fifth Chamber of the Court of 22 September 2009 Fjord Seafood Scotland Farming was removed from the Court register in the present case.

17      After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which this case was accordingly assigned. Owing to the partial renewal of the Court, the present case was then assigned to a new Judge-Rapporteur sitting in the same Chamber.

18      Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing on 12 July 2011.

19      At the hearing, counsel for the applicants informed the Court that FSN had been taken over by Marine Harvest Norway AS. Following the closure of the oral procedure, that same counsel indicated by letter lodged at the Court Registry on 18 July 2011 that FSN had ceased to exist on 18 September 2007, after it was taken over by Marine Harvest Norway, and lodged a document from the Norwegian companies register to that effect. By order of 16 August 2011, the President of the Second Chamber of the Court reopened the oral procedure in order to allow the other parties to submit observations on that aspect.

20      By letters lodged at the Court Registry on 7 and 8 September 2011 respectively, the Commission and the Council submitted their observations. By letter lodged at the Court Registry on 30 September 2011, counsel for the applicants responded to those observations and also lodged a certificate originating from Marine Harvest Norway and stating that, following the merger between FSN and Marine Harvest Norway, under Norwegian law the latter had become the successor in law to FSN and therefore an applicant in the present case. By that same certificate, Marine Harvest Norway confirmed the powers initially granted to counsel for FSN and authorised them to represent it before the Court in the present case.

21      The applicants Marine Harvest Norway, legal successor to FSN, and Alsaker Fjordbruk claim that the Court should:

–        annul the contested regulation;

–        order the Council to pay the costs.

22      In the alternative, Marine Harvest Norway, legal successor to FSN, claims that the Court should:

–        annul the contested regulation in so far as it concerns Marine Harvest Norway;

–        order the Council to pay the costs.

23      The Council contends that the Court should:

–        dismiss the action as inadmissible to the extent that it seeks annulment of the contested regulation in so far as it imposes an anti-dumping duty on imports into the Community of farmed salmon originating in Norway and produced by companies other than the applicants;

–        in any event, dismiss the action as unfounded;

–        order the applicants to pay the costs.

 Law

 The impact of the merger of FSN and Marine Harvest Norway

24      The Council, supported by the Commission, submits in essence that, since its dissolution on 18 September 2007, FSN has lost its legal standing in the present case, and no evidence has been adduced before the Court to show that Marine Harvest Norway is legally entitled to continue the action on behalf of FSN. According to the case-law, an applicant who has ceased to exist during judicial proceedings has no capacity to be a party to legal proceedings or to pursue an action. According to the same case-law, capacity to be a party to legal proceedings is governed by national law. Consequently, the action must be held to be inadmissible or to have become devoid of purpose in respect of FSN. The Council argues, in the alternative, that FSN must be held no longer to have an interest in continuing the action since its dissolution and that, in authorising Marine Harvest Norway to continue the action in its own name, the Court would be allowing it to circumvent the time-limits laid down for bringing an action for annulment of the contested regulation, thereby expanding the subject-matter of the present action beyond what is set out in the application.

25      The Commission adds that, according to the case-law, the effects of annulment of a regulation imposing an anti-dumping duty are confined to those applicants who brought the proceedings leading to that annulment, and that the time-limits for actions are aimed at ensuring legal certainty by preventing European Union measures from being ‘called in question indefinitely’. Even if the Court were to hold that the case is well-founded and that Marine Harvest Norway is entitled to take on the claims made by FSN, any decision by the Court in that regard should be limited to the anti-dumping duties imposed on exports made by FSN prior to 18 September 2007.

26      Marine Harvest Norway contests the arguments put forward by the Council and the Commission (‘the institutions’).

27      First, as regards capacity to be a party to legal proceedings, as stated by the Council, that capacity is in principle governed by national law. Clearly the merger of FSN and Marine Harvest Norway took place in accordance with prevailing Norwegian law, which lays down the principle that, in the event of a merger/takeover, all the rights and obligations of the entity taken over are transferred to the entity taking over, including the legal capacity to be a party to the legal proceedings of the entity taken over or to withdraw therefrom.

28      Consequently, although FSN ceased to exist whilst the present proceedings have been under way and no longer has the capacity to be a party to legal proceedings in its own right, the new entity which came into being from the merger with Marine Harvest Norway automatically took over that capacity under the applicable Norwegian law. It should be borne in mind that, according to settled case-law, an action for annulment brought by a legal person may be continued by the universal successor in title of that addressee, in particular in the case where a legal person ceases to exist and all its rights and obligations are transferred to another person. It must also be borne in mind that, in such circumstances, the universal successor in title is necessarily substituted automatically for its predecessor (see, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 71 and the case-law cited).

29      There is, moreover, nothing in the file to indicate that FSN withdrew from the present proceedings, either in its own capacity prior to the merger on 18 September 2007 or, after that date, through Marine Harvest Norway, its universal successor in title. The intention to exercise a right, namely that of continuing legal proceedings, must also be demonstrated explicitly, which FSN’s universal successor in title did through its counsel at the hearing and subsequently by the documents lodged at the Court Registry on 18 July and 30 September 2011. The fact that the change in FSN’s situation which took place on 18 September 2007 was not communicated before then has no bearing on the transfer of its rights and obligations, which took place automatically at the time of the merger, including the capacity of its universal successor in title, Marine Harvest Norway, to be a party to legal proceedings in its stead.

30      Second, regarding the alleged lack of legal interest in bringing proceedings, put forward by the Council, it is clear that that argument is unfounded, in the light of the principles established in the case-law referred to in paragraph 28 above, as Marine Harvest Norway retained that interest by being automatically subrogated to the rights and obligations of its predecessor. Unless FSN had expressly withdrawn from the proceedings, there are no grounds to consider that the new entity resulting from the merger with Marine Harvest Norway has somehow lost its legal interest in continuing the proceedings brought by its predecessor.

31      Third, as rightly pointed out by the Commission, any decision by the Court concerning any annulment of the contested regulation should be limited to the anti-dumping duties imposed on imports originating from FSN until 18 September 2007.

32      In ceasing to exist, FSN also ceased to export the product concerned in its own name. Accordingly, as from the time of its dissolution, any new exports were carried out by its universal successor in title, Marine Harvest Norway. In those circumstances, the effects of an annulment of the contested regulation cannot be extended beyond 18 September 2007, as that would be tantamount to changing the subject-matter of the original application, which concerned only anti-dumping duties applied to imports originating from FSN. Article 135(4) of the Court’s Rules of Procedure, however, prohibits any change to the subject-matter of the proceedings.

33      It follows from the foregoing that the Council’s objection, supported by the Commission, to Marine Harvest Norway’s continuing the present proceedings is unfounded. Accordingly Marine Harvest Norway automatically became the applicant in the present case, replacing FSN, and is entitled to continue the action for annulment of the contested regulation for the anti-dumping duties applied to imports originating from FSN until its dissolution on 18 September 2007.

 Admissibility of the action in so far as it seeks annulment of the contested regulation as a whole

34      Regarding the objection raised by the Council in its statement in defence, to the effect that the present action is inadmissible on the ground that the applicants are seeking not only annulment of the provisions of the contested regulation which concern them individually, but also annulment of the regulation in its entirety, it should be borne in mind that the fourth paragraph of Article 230 EC makes the admissibility of an action for annulment brought by a natural or legal person subject to the condition that the contested measure, although in the form of a regulation, is of direct and individual concern to that person.

35      Regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally. Nevertheless, some provisions of those regulations may be of direct and individual concern to 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, or to importers whose resale prices for the goods in question are used as the basis for the construction of the export price, in the case of an association between exporter and importer (see, to that effect, Case C‑156/87 Gestetner Holdings v Council and Commission [1990] ECR I‑781, paragraphs 17 and 18).

36      Moreover, a regulation imposing different anti-dumping duties on a series of undertakings may be of direct concern to any one of them only in respect of those provisions which impose on that trader a specific anti-dumping duty and determine the amount thereof, and not in respect of those provisions which impose anti-dumping duties on other undertakings (Gestetner Holdings v Council and Commission, paragraph 35 above, paragraph 12), although the institutions must comply with their obligations under Article 233 EC in the event of annulment on grounds affecting the calculation of the anti-dumping duties imposed on those other undertakings.

37      It follows that the present action is admissible only in so far as it seeks annulment of the provisions of the contested regulation which impose a definitive anti-dumping duty or collect definitively a provisional anti-dumping duty on imports of farmed salmon originating from the applicants’ production and determine the rate of those duties. On the other hand, the applicants do not have locus standi to apply for annulment of the provisions of the contested regulation that concern only other companies. The present action must, to that extent, be dismissed as inadmissible.

 Substance

38      In support of their action, the applicants put forward eight pleas in law, concerning, respectively:

–        first, the definition of the Community industry;

–        second, the assessment of dumping and injury taking into account the European Union of 25 Member States;

–        third, the composition of the sample of Community producers;

–        fourth, the composition of the sample of Norwegian exporting producers;

–        fifth, the causal link between the dumped imports and the injury suffered by the Community industry;

–        sixth, the exchange rate used to calculate the MIP;

–        seventh, the MIPs of salmon fillets; and

–        eighth, the calculation of FSN’s production costs.

39      By the first plea, the applicants submit that the institutions defined and applied the concept of Community industry incorrectly. By their third plea, the applicants allege, in essence, that the sample of Community producers used by the institutions to analyse the injury was not representative.

40      In the present action, it is appropriate, first of all, to consider together the fourth part of the first plea, alleging incorrect exclusion of processors from the definition of the Community industry, and the complaint in the third plea, alleging that the sample of Community producers is not representative, as they are closely linked under the provisions of the basic regulation on which they are based.

41      By the fourth part of the first plea, alleging incorrect exclusion of processors from the definition of the Community industry, the applicants allege, in essence, that the institutions infringed Article 4(1) and Article 3(1) and (2) of the basic regulation (now Article 4(1) and Article 3(1) and (2) of Regulation No 1225/2009).

42      The applicants submit, first, that the institutions did not include processors, including Community salmon fillet producers, in the definition of the Community industry, even though the product concerned referred to by the like product provided for in Article 4(1) of the basic regulation includes salmon fillets.

43      Second, in excluding processors, including Community salmon fillet producers, the institutions infringed Article 3 of the basic regulation (now Article 3 of Regulation No 1225/2009). In the applicants’ submission, the assessment of injury under Article 3(1) and (2) of the basic regulation involves an examination of the impact of targeted imports on the Community industry. Having defined the product, the institutions should thus have assessed the impact of the imports on the Community producers of like products; consequently, European processors should have been included in the definition of the Community industry under Article 4 of the basic regulation (now Article 4 of Regulation No 1225/2009). They should not have been taken into consideration only in the application of Article 21 of the basic regulation (now Article 21 of Regulation No 1225/2009).

44      The Council submits that the institutions did not infringe Articles 3 and 4 of the basic regulation by not including Community producers of salmon fillets in the definition of the Community industry. It is clear from the wording of recital 10 in the preamble to the provisional regulation that the product concerned is ‘farmed salmon’ and that the description that follows – ‘whether or not filleted, fresh, chilled or frozen’ – refers only to the different presentations of the product. This is supported by recitals 11 and 12 in the preamble to the provisional regulation.

45      Moreover, the Council maintains that the definition of the Community industry refers to producers of farmed salmon, some of which also produce salmon fillets, and is thus appropriate to the product concerned, farmed salmon. Consequently, the institutions were also right to limit their injury analysis to the salmon farming industry, without including the salmon processing industry.

46      It should be borne in mind, first, that, according to Article 4(1) of the basic regulation, the Community industry is defined as ‘the Community producers as a whole of the like products or … those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Community production of those products’.

47      As rightly pointed out by the applicants, it is clear from that provision that the definition of the Community industry refers to the like product. That like product, produced by the Community industry, is accordingly the corollary to the product concerned. Article 1(4) of the basic regulation (now Article 1(4) of Regulation No 1225/2009) defines ‘like product’ as a product which is identical, that is to say, alike in all respects, to the product under consideration or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

48      It also follows from the wording of Article 4(1) of the basic regulation that the Community producers of the like product are the starting point for the definition of the Community industry. It should be noted in that regard that Article 4(1) of the basic regulation defines the Community industry either as ‘the Community producers as a whole of the like products’, or as ‘those of them whose collective output of the products constitutes a major proportion … of the total Community production of those [like] products’.

49      In the present case, the institutions stated, in recitals 10 and 11 in the preamble to the provisional regulation, confirmed by recital 8 in the preamble to the contested regulation, that the product concerned was farmed (other than wild) salmon, whether or not filleted, fresh, chilled or frozen. That definition excludes any other similar farmed fish products such as large (salmon) trout, biomass (live salmon) as well as wild salmon and any other type of processed salmon such as smoked salmon. The product is classifiable within CN codes ex 0302 12 00, ex 0303 11 00, ex 0303 19 00, ex 0303 22 00, ex 0304 10 13 and ex 0304 20 13, corresponding to different presentations of the product (fresh or chilled fish, fresh or chilled fillets, frozen fish and frozen fillets). Recital 11 in the preamble to the provisional regulation then states, in respect of the product concerned, that, based on the physical characteristics, the production process and the substitutability of the product from the perspective of the consumer, all farmed salmon constitutes a single product and that, despite their different presentations, all farmed salmon products must be considered to constitute a single product.

50      As regards the definition of the like product, the Commission indicated, in recital 12 in the preamble to the provisional regulation, and as confirmed by recital 8 in the preamble to the contested regulation, that the basic physical characteristics of farmed salmon produced and sold by the Community industry in the European Union, farmed salmon produced and sold on the Norwegian market, and farmed salmon imported into the European Union from Norway were the same and that they had the same use.

51      The institutions ultimately concluded, in recital 14 in the preamble to the provisional regulation, and as confirmed by recital 8 in the preamble to the contested regulation, that the product concerned and the farmed salmon produced and sold on the Norwegian market, as well as the farmed salmon produced and sold in the European Union by the Community industry had the same basic physical characteristics, were intended for the same uses and, accordingly, were considered like products for the purposes of Article 1(4) of the basic regulation.

52      Consequently, in the present case, the like product, in relation to which the Community industry is defined, is farmed (other than wild) salmon, whether or not filleted, fresh, chilled or frozen. It follows that, under Article 1(4) and Article 4(1) of the basic regulation, the Community industry had to be made up of the producers of that product and that, as the applicants maintain, the Community producers of salmon fillets, which are among the like product, had to be included in the definition of the Community industry.

53      It should be observed, first, that Article 4(1) of the basic regulation does not justify the failure to include the Community producers of salmon fillets in the definition of the Community industry on grounds of diversity in the presentations of the like product. That distinction is not provided for in that article, which refers only to the like product as defined by Article 1(4) of the basic regulation and thus to the industry which produces it.

54      Second, it is apparent from Article 1(5) of the contested regulation that a different MIP applies to each of the different presentations of the product concerned, so as to reflect the additional costs associated with their preparation. Those different presentations, including those covering salmon fillets, are all the subject of an anti-dumping measure. It follows that they form an integral part of the product concerned and, consequently, of the like product.

55      Third, it is clear that the Council’s explanation is even contradictory, as it is concluded in recital 11 in the preamble to the provisional regulation that, ‘[despite] [t]he different presentations [of farmed salmon] … they are considered to constitute a single product for the purpose of the proceeding’. That passage makes it clear that the definition of the product concerned was drawn up in reference to a single product, without any distinction being drawn as to different forms or presentations. Even if processors use one of the presentations of the product concerned, the fact remains that those processors produce one of the presentations of the like product, that is salmon fillets.

56      Fourth, it should be observed that, in recital 10 in the preamble to the provisional regulation, part of the product concerned is defined as being salmon, ‘whether or not filleted’. It follows that the definition of the product concerned cannot be limited solely to ‘farmed salmon’, as the Council maintains it can, because the addition of the words ‘whether or not filleted’ clearly indicates that the product concerned is either farmed salmon or filleted farmed salmon. Consequently, whatever its form may be, it is considered to be a single product. Similarly, part of the like product, in relation to which the Community industry is defined, is farmed salmon ‘whether or not filleted’, and therefore the Community producers of salmon fillets ought to have been included in the definition of the Community industry.

57      It is clear, however, as correctly pointed out by the applicants and confirmed by the Council in its statement in defence, that the institutions drew a distinction between the farmed salmon industry and the salmon processing industry and did not include the Community producers of salmon fillets in the definition of the Community industry, even though it is common ground that the processing industry is behind the production of, inter alia, salmon fillets.

58      It should, moreover, be borne in mind that, by letters from the Commission of 16 November and 13 December 2005, the parties concerned were informed, after the final disclosure document, of certain developments in relation to the MIPs initially imposed on filleted salmon. The Commission thus indicated the need to revise those MIPs. At the time of that revision, the institutions based the increase of those MIPs, inter alia, on processing costs. In failing to include in the definition of the Community industry the producers of part of the like product, whilst including processing costs in the determination of the anti-dumping duties for the product concerned, the institutions infringed Article 4(1) of the basic regulation.

59      It follows from the foregoing that the institutions infringed Article 4(1) of the basic regulation in failing to include the Community producers of salmon fillets in the definition of the Community industry.

60      Second, under Article 3(1) of the basic regulation, ‘the term “injury” shall … be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions’ of Article 3. Under Article 3(2) of the same regulation, ‘[a] determination of injury shall be based on positive evidence and shall involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and (b) the consequent impact of those imports on the Community industry’.

61      It follows from the wording of those provisions that, as correctly observed by the applicants, the appraisal of the injury is based on an examination of the impact of the imports concerned on the Community industry.

62      In the present case, it is clear that the institutions found that there was injury, taking into account the impact of the imports on a Community industry from which the Community producers of salmon fillets were excluded, even though they were part of that industry under Article 4(1) of the basic regulation in their capacity as producers of part of the like product. In so doing, the institutions also omitted the data relating to those producers and, therefore, information which was relevant to the determination of whether there was injury under Article 3(1) and (2) of the basic regulation.

63      Consequently, it must be held that the institutions also infringed Article 3(1) and (2) of the basic regulation in basing the determination of whether there was injury on an incorrectly defined Community industry.

64      It follows that the fourth part of the first plea, alleging incorrect exclusion of the Community producers of salmon fillets from the definition of the Community industry, must be upheld.

65      By the complaint in the third plea, alleging that the sample of Community producers was not representative, the applicants argue that, since the definition of the Community industry was incorrect, the sample of Community producers cannot be representative of the Community industry as it ought to have been correctly defined.

66      In the Council’s submission, the applicants do not put forward any new argument in support of that complaint and, in any event, their arguments relating to the allegedly incorrect definition of the Community industry must be rejected.

67      It should be observed that, in relying on the interpretation of the relevant provisions of the basic regulation concerning the determination of whether there is injury caused to the Community industry, the Council explains, in its statement in defence, the approach adopted by the institutions to ensure that the sample of Community producers used in the analysis of the injury is representative.

68      It is thus stated that, ‘[p]ursuant to Article 3 of the basic regulation, injury is established by reference to the “Community industry” as defined pursuant to Article 4(1) and Article 5(4) of the basic regulation’ and that ‘[t]hus, if the Commission resorts to sampling for the purposes of the injury analysis, the sample must be representative for the Community industry’.

69      Moreover, the Council reiterates that interpretation in acknowledging that the sample must be representative of the Community producers who may be regarded as constituting the Community industry pursuant to Article 4(1) of the basic regulation and who support the complaint, and not represent all producers established in the European Union or all producers who may be regarded as constituting the Community industry.

70      The Court agrees with the Council’s interpretation to the effect that the representativeness of the sample of Community producers constituted for the purpose of analysing the injury must be assessed in relation to the Community industry defined pursuant to Article 4(1), read in conjunction with Article 5(4) of the basic regulation (now Article 5(4) of Regulation No 1225/2009).

71      As is clear from paragraphs 46 to 59 above, concerning the fourth part of the first plea, the institutions wrongly failed to take into consideration the Community producers of salmon fillets in the definition of the Community industry, contrary to Article 4(1) of the basic regulation. It follows that, in excluding the salmon fillet producers, the institutions did not use a representative sample of the Community producers.

72      The Court accordingly finds that the institutions made an error in the determination of the sampling of Community producers for the purposes of assessing the injury, in that the sample is not representative of the Community industry, thereby infringing Article 3(1) and (2) and Article 4(1) of the basic regulation.

73      It follows that the complaint in the third plea, alleging that the sample of Community producers is not representative, must be upheld.

74      In the light of all the foregoing considerations, the Court finds that the institutions infringed Article 4(1) and Article 3(1) and (2) of the basic regulation in failing to take into consideration the Community producers of salmon fillets in the definition of the Community industry and in basing the determination of whether there was injury on an incorrectly defined Community industry and an unrepresentative sample of that Community industry.

75      Therefore, the contested regulation must be annulled in so far as it concerns the applicants, and there is no need to consider the other parts of the first plea or the other complaints put forward under the third plea, or the other pleas put forward by the applicants.

 Costs

76      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been essentially unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicants.

77      In accordance with Article 87(4) of the Rules of Procedure, the Commission must bear its own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Annuls Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway in so far as it concerns Marine Harvest Norway AS, legal successor to Fjord Seafood Norway AS, for the anti-dumping duties applied to imports originating from the latter until 18 September 2007, and Alsaker Fjordbruk AS;

2.      Dismisses the action as to the remainder;

3.      Orders the Council of the European Union to bear its own costs and to pay those of Marine Harvest Norway, legal successor to Fjord Seafood Norway, and Alsaker Fjordbruk;

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

Forwood

Dehousse

Popescu

Delivered in open court in Luxembourg on 21 March 2012.

[Signatures]


* Language of the case: English.