Language of document : ECLI:EU:T:2013:369

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

11 July 2013 (*)

(Dumping – Imports of integrated electronic compact fluorescent lamps (CFL-i) originating in China, Vietnam, Pakistan and the Philippines – Expiry of anti-dumping measures – Review – Like product – Data used to determine the injury – Analogue country – Community interest – Article 4(1) and Article 5(4) of Regulation (EC) No 384/96 (now Article 4(1) and Article 5(4) of Regulation (EC) No 1225/2009) – Obligation to state reasons – Rights of the defence)

In Case T‑459/07,

Hangzhou Duralamp Electronics Co., Ltd, established in Hangzhou (China), represented by M. Gambardella and V. Villante, lawyers,

applicant,

v

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

defendant,

supported by

European Commission, represented by H. van Vliet and K. Talabér‑Ritz, acting as Agents,

and by

Osram GmbH, established in Munich (Germany), represented by R. Bierwagen, lawyer,

interveners,

APPLICATION for annulment of Council Regulation (EC) No 1205/2007 of 15 October 2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the Peoples Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2007 L 272, p. 1),

THE GENERAL COURT (Fifth Chamber),

composed of S. Papasavvas, President, K. O’Higgins (Rapporteur) and D. Gratsias, Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 5 September 2012,

gives the following

Judgment

 Background to the dispute

1        The basic anti-dumping regulation applicable to the facts in this case is Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17) (‘the basic regulation’). The basic regulation was subsequently 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 in OJ 2010 L 7, p. 22).

2        Article 11(2) of the basic regulation (now Article 11(2) of Regulation No 1225/2009) provides, inter alia, as follows:

‘A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon request made by or on behalf of Community producers, and the measure shall remain in force pending the outcome of such review.’

3        Article 11(5) of the basic regulation (now Article 11(5) of Regulation No 1225/2009) provides, inter alia, as follows:

‘The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time‑limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4 [of this Article].’

4        The applicant, Hangzhou Duralamp Electronics Co., Ltd, is a Chinese company whose business is, in particular, the production of electronic compact fluorescent discharge lamps with one or more glass tubes, with all lighting elements and electronic components fixed to the lamp foot or integrated in the lamp foot (‘CFL‑i’) for export to the European Union.

5        On 16 July 2001, the Council of the European Union adopted Regulation (EC) No 1470/2001 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of [CFL-i] originating in the People’s Republic of China (OJ 2000 L 195, p. 8). That regulation instituted definitive anti‑dumping duties of 0 to 66.1% on those imports. A duty of 66.1% was imposed on imports originating from the applicant.

6        On 6 June 2005, the Council adopted Regulation (EC) No 866/2005 extending the definitive anti-dumping measures imposed by Regulation (EC) No 1470/2001 on imports of [CFL-i] originating in the People’s Republic of China to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2005 L 145, p. 1).

7        Regulations Nos 1470/2001 and 866/2005 were amended by Council Regulation (EC) No 1322/2006 of 1 September 2006 (OJ 2006 L 244, p. 1).

8        On 14 October 2005, the Commission of the European Communities published a notice of impending expiry of the anti-dumping duties (OJ 2005 C 254, p. 2).

9        On 18 April 2006, the Commission received a request for the initiation of an expiry review of those measures, lodged by the Community Federation of Lighting Industry of Compact Fluorescent Lamps Integrated (‘2CFL-i’), acting on behalf of Osram GmbH, pursuant to Article 11(2) of the basic regulation.

10      On 12 June 2006, the Commission sent questionnaires to the four Community producers of CFL-i, namely GE Hungary Ipari és Kereskedelmi Zrt (GE Hungary Zrt), Osram, Philips Lighting Poland S.A. (‘Philips Poland’) and SLI Sylvania Lighting International (‘Sylvania’) to enable it to establish whether the producers supporting the application for a review were sufficiently representative.

11      In their joint reply to that questionnaire, Philips Poland and its sister company Philips Lighting B.V stated that they were opposed to the opening of a review procedure. However, in their reply, GE Hungary and Osram stated that they were in favour of such a procedure being initiated. Sylvania did not reply to the questionnaire.

12      Having determined, following consultation with the Advisory Committee set up under Article 15 of the basic regulation (now Article 15 of Regulation No 1225/2009), that sufficient evidence existed for the initiation of a review under Article 11(2) of that regulation, the Commission published a notice of initiation of such a procedure in the Official Journal of the European Union of 19 July 2006 (OJ 2006 C 167, p. 13; ‘the notice of initiation of the review procedure’) and commenced an investigation into the period from 1 July 2005 to 30 June 2006 inclusive.

13      The product concerned was defined in the same manner as in Regulation No 1322/2006: CFL-i functioning on alternating current, including CFL-i functioning on both alternating and direct current, originating in China.

14      In the course of the investigation, the Commission sent a questionnaire to all the parties concerned, including the four Community producers of CFL-i and the Community importers of CFL-i.

15      In November 2006 the Commission carried out on-the-spot investigations at the premises of various companies, including the four Community CFL-i producers and certain exporting producers in China.

16      By letter of 26 November 2006, GE Hungary informed the Commission that it was no longer in favour of the anti-dumping measures being continued.

17      By letter of 13 December 2006 the applicant requested the Commission to authorise it to participate in the review procedure and to grant it access to the non‑confidential investigation file. The applicant reiterated its request by letter of 19 January 2007.

18      By two letters dated 19 December 2006, Sylvania informed the Commission that it was of the view that it was not in the Community interest for the anti-dumping measures at issue to be maintained in force.

19      By fax of 30 January 2007 the Commission replied to the applicant’s letters referred to in paragraph 17 above, inviting it to submit written and oral observations in spite of the fact that its request had been made outside the period prescribed in the notice of initiation of the review procedure.

20      On 13 February 2007, the applicant inspected the non-confidential investigation file.

21      By fax of 7 March 2007 the applicant requested access to the non‑confidential file relating to the investigation that had led to the adoption of Regulation No 1470/2001 (‘the original investigation’).

22      On 12 March 2007 the applicant submitted written observations, in which it claimed, in particular, that, in view of the opposition displayed by Philips Poland, GE Hungary and Sylvania to the request for a review, it should be considered that that request was not supported by the Community industry within the meaning of Article 5(4) of the basic regulation (now Article 5(4) of Regulation No 1225/2009) and that the review procedure should therefore be closed. The applicant also took the view that the maintenance of the anti‑dumping measures at issue was contrary to the Community interest.

23      On 8 May 2007 the applicant again consulted the non-confidential investigation file, to which certain new documents relating to the issue of injury had been added.

24      By letter of 23 May 2007, the applicant submitted to the Commission a request under European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2002 L 145, p. 43), for access to the confidential file relating to the initial investigation.

25      On 8 June 2007 the applicant took part in a hearing at the offices of the Commission.

26      By letter of 13 June 2007 the Commission rejected the applicant’s request for access to the confidential file relating to the original investigation.

27      By letter of 25 June 2007 the applicant lodged a confirmatory application, within the meaning of Article 7(2) of Regulation No 1049/2001, with the Secretary General of the Commission concerning that refusal of access.

28      By letter of the same date the applicant requested the Commission, pursuant to Regulation No 1049/2001, to grant access to certain internal Guidelines of the Commission’s Directorate-General (DG) ‘Trade’ (‘the internal guidelines’).

29      By letter of 10 July 2007 the Commission rejected that request.

30      On the same date the Commission issued a disclosure document setting out the essential facts and considerations on the basis of which it intended to recommend termination of the review of the anti-dumping measures at issue (‘the July 2007 disclosure document’). In that document, it stated, in particular, that all four Community producers should be included in the total Community production within the meaning of Article 4(1) of the basic regulation (now Article 4(1) of Regulation No 1225/2009). It also stated that the requirements concerning the level of support for a request for a review laid down by Article 5(4) of that regulation had to be fulfilled both at the stage of lodging that request and also during the course of the investigation. The Commission further stated that in this case, at the time when the review was opened, the request was supported by a major proportion of the Community production but that the position had changed during the course of the investigation. It noted that the collective output of the producers opposing the request now accounted for slightly more than 50% of the total Community production and it concluded that the anti‑dumping measures at issue ought to be repealed and the review procedure terminated.

31      On 23 July 2007, the applicant submitted observations on the July 2007 disclosure document in which it supported the Commission’s conclusion. On 25 July 2007, 2CFL-i submitted observations on the July 2007 disclosure document.

32      By letter of 25 July 2007 the applicant lodged a confirmatory letter with the Secretary-General of the Commission concerning the refusal to grant access to the internal guidelines.

33      On 31 August 2007, the Commission issued a general disclosure document (‘the general disclosure document’), in which it stated that the period of application of the anti-dumping measures at issue should be extended by one year. It stated in particular that ‘[b]y analogy to Art. 9(1) of the basic Regulation, which stipulates that the Community may take measures even if a complaint is withdrawn if that is in the Community interest, the Community institutions consider that it is not necessary in this case to take a decision regarding [Article] 4(1) and [Article] 5(4) of the basic Regulation, since … it is in the Community interest to prolong measures for [a period of one year]’. The Commission further stated that for the purposes of assessing the injury, it had taken account of the position of the company supporting the request for a review.

34      On 12 September 2007 the applicant submitted observations on the general disclosure document, in which it disputed the Commission’s conclusions and took issue, in particular, with the definition of the like product applied by the Commission and also with the choice of the Republic of Korea as the analogue country.

35      On 14 September 2007, following consultation with the Advisory Committee, the Commission submitted a proposal for a Council regulation imposing anti-dumping duties on imports of [CFL-i] originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of [the basic] regulation, and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (COM(2007) 550).

36      On 15 October 2007, the Council adopted Regulation (EC) No 1205/2007 imposing anti-dumping duties on imports of [CFL-i] originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of [the basic regulation] and extending [those measures] to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2007 L 272, p. l, ‘the contested regulation’). The anti-dumping duties imposed were maintained at rates ranging from 0 to 66.1%, for a period of one year.

37      In recital 16 in the preamble to the contested regulation the Council found that CFL-i manufactured and sold domestically in China, CFL-i manufactured in China and exported to the EU, CFL-i manufactured and sold in the EU and CFL-i manufactured and sold domestically in the analogue country (in this case the Republic of Korea) were alike within the meaning of Article 1(4) of the basic regulation (now Article 1(4) of Regulation No 1225/2009) on the ground that they had basically the same physical and technical characteristics and uses.

38      In recitals 20 to 46 in the preamble to the contested regulation, the Council examined whether the expiry of the anti-dumping measures at issue was likely to result in the continuation or the recurrence of dumping. In recital 46, it concluded that dumping was likely to continue.

39      In recitals 47 to 93 in the preamble to the contested regulation, the Council analysed the likelihood of injury continuing or recurring.

40      For the purposes of that analysis the Council had regard to the situation of the ‘supporting company’, namely Osram (recital 51). In that regard, in recital 49 in the preamble to the contested regulation, the Council recalled that during the investigation the four Community producers which cooperated with the investigation had been examined in the light of Articles 4(1) and 5(4) of the basic regulation, and stated that ‘[t]he detailed results … showed a complex picture of a sector whose structure appear[ed] to be in flux and where views [were] mixed, with the largest producer in terms of production volumes being in favour and the rest being opposed to the continuation of measures’. In recital 50 in the preamble to the contested regulation, the Council stated that the largest Community producer, which is Osram, produced around 48% of Community production and ‘therefore certainly constitute[d] a major proportion’ of Community production. The Council stated further that the rule in Article 9(1) of the basic regulation, according to which ‘the Community [could] take measures even if a complaint [were] withdrawn if that [were] in the Community interest … mutatis mutandis also applie[d] in an expiry review in which there [was] no complete withdrawal of a complaint, but a major Community producer continue[d] to be in favour of the measures’. It also stated that ‘[p]rovided that producer [has] account[ed] for a major proportion of Community industry, which [was] the case here, its injury data constitute[d] the best available data’.

41      At the end of its analysis, the Council concluded that ‘there [would be] a likelihood of continuation and recurrence of injurious dumping should [the] anti‑dumping measures [at issue] be allowed to lapse’ (recital 93).

42      In recitals 94 to 116 in the preamble to the contested regulation the Council, referring to Article 9(1) and Article 21 of the basic regulation (now Article 21 of Regulation No 1225/2009), considered whether the maintenance of the anti‑dumping measures at issue would be in the Community interest and, if so, for how long. Having weighed the various interests concerned, it found that it was appropriate that the measures be maintained for one year.

43      Pursuant to Article 2 thereof, the contested regulation expired on 18 October 2008.

44      By letter of 29 October 2007 the Secretary-General of the Commission determined the applicant’s confirmatory request concerning the refusal to grant access to the internal guidelines. It granted the applicant partial access to some of those guidelines.

 Procedure and forms of order sought by the parties

45      By application lodged at the Court Registry on 17 December 2007, the applicant brought this action.

46      By documents lodged at the Registry on 27 March and 3 April 2008 respectively, Osram and the Commission applied to intervene in the present proceedings in support of the form of order sought by the Council.

47      Those applications for leave to intervene were notified to the parties, which submitted their observations within the prescribed period.

48      By two orders of 12 June 2008 the President of the Fourth Chamber of the Court granted the applications to intervene.

49      Osram lodged a statement in intervention, on which the applicant submitted observations within the prescribed period. The Commission has not lodged a statement in intervention.

50      By order of 15 October 2009 in Case T‑459/07 Hangzhou Duralamp Electronics v Council [2009] ECR II‑4015, the Court (Fourth Chamber) ordered that a document annexed to the applicant’s observations on Osram’s statement in intervention be removed from the file.

51      Since the composition of the Chambers of the Court had changed, the Judge Rapporteur was assigned to the Fifth Chamber, to which the present case was, accordingly, allocated.

52      On hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, invited the Council to produce certain documents and to reply to certain written questions. The Council complied with those requests within the period prescribed.

53      As a member of the Chamber was unable to sit in the present case, the President of the General Court designated another Judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.

54      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 5 September 2012.

55      The applicant claims that the Court should:

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

–        order the Council to pay the costs.

56      The Council contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

57      The Commission contends that the Court should dismiss the action.

58      Osram contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs incurred by Osram in connection with its intervention.

 Law

59      As a preliminary point, it must be noted that Osram maintained, in its statement in intervention as well as at the hearing, that the present action is inadmissible, on the ground that the applicant is not directly and individually concerned by the contested regulation. It also claimed that there is no longer any need to adjudicate on the present action, because the contested regulation expired on 18 October 2008.

60      In that connection, the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its admissibility (see, to that effect, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraphs 51 and 52, and Case C‑233/02 France v Commission [2004] ECR I‑2759, paragraph 26).

61      In the present case, the Court considers it necessary, in the interests of procedural economy, to begin by examining the pleas put forward by the applicant, without first ruling on the admissibility of the present action for annulment, because that action is in any event unfounded on the grounds set out below.

62      The applicant puts forward five pleas in law in support of its application. In the first plea, it claims that the Council and the Commission (‘the institutions’), when determining the like product, infringed Article 253 EC, Article 1(2) and (4) of the basic regulation (Article 1(2) having become Article 1(2) of Regulation No 1225/2009) and Article 2(1) and (6) of the Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; ‘the anti‑dumping agreement’), set out in Annex IA to the Agreement establishing the World Trade Organisation (WTO), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). In the second plea, the applicant claims that, in using certain data from the European Union Statistics Office (Eurostat) to evaluate the likelihood that injury would continue or recur, the institutions infringed Article 253 EC, Articles 2 and 3 of the basic regulation (now Articles 2 and 3 of Regulation No 1225/2009) and the anti-dumping agreement and made a manifest error of assessment. The applicant also claims that there has been a breach of its rights of defence. In the third plea, the applicant claims that, by choosing the Republic of Korea as the analogue country, the institutions infringed Articles 2, 6, 11, 19 and 20 of the basic regulation (Articles 6, 11, 19 and 20 having become Articles 6, 11, 19 and 20 of Regulation No 1225/2009), Article 2 of the anti‑dumping agreement, the applicant’s rights of defence and Article 253 EC and made a manifest error of assessment. In the fourth plea, the applicant maintains that the institutions infringed Articles 7, 9 and 21 of the basic regulation (Articles 7 and 9 having become Articles 7 and 9 of Regulation No 1225/2009) and made a manifest error of assessment in taking the view that it was in the Community interests that the anti‑dumping measures be maintained. It also relies on an infringement of Article 253 EC. In the fifth plea, the applicant claims that, in deciding to maintain the anti-dumping measures at issue when producers representing more than 50% of Community production were opposed to them, the institutions infringed Article 5 of the anti-dumping agreement and Articles 4 and 5 of the basic regulation and made a manifest error of assessment. The applicant also claims that there has been an infringement of Article 253 EC.

 The first plea in law, concerning the determination of the like product

63      The applicant puts forward various arguments in relation to the determination of the like product, which may be grouped into two parts, the first alleging breach of Article 1(2) and (4) of the basic regulation and of Article 2(1) and (6) of the anti‑dumping agreement, and the second alleging breach of the obligation to state reasons.

64      The Council, supported by the Commission and by Osram, contends that the first plea in law should be rejected.

 The first part, alleging breach of Article 1(2) and (4) of the basic regulation and of Article 2(1) and (6) of the anti-dumping agreement

65      The applicant claims that the institutions made a manifest error of assessment in considering that all CFL-i were ‘like’ products, regardless of their origin. In particular, it claims that Community producers mainly manufacture CFL-i with a long lifetime, that is to say, more than 6 000 hours, while Chinese producers mainly manufacture CFL-i with a shorter lifetime. The applicant infers from this that Chinese producers mainly manufacture products intended for a different market from that on which Community producers are active, and contends that the products belonging to the two markets are not ‘like’ products. In addition, the applicant, referring to recital 19 in the preamble to the contested regulation, claims that imported CFL-i and those manufactured in the Community have different end uses. It explains that CFL-i are used by both commercial users and non‑commercial users (private households), but that the former, which are more sensitive to energy savings, use more CFL-i than the latter, and that CFL-i with a shorter lifetime are less expensive than those with a longer lifetime and are more attractive to non-commercial users. The applicant emphasises that there is a different consumer perception of the lamps and asserts that ‘a product range of necessity implies the existence of more than one market (at least from the demand side)’. The applicant concludes from the foregoing that ‘the requirements of [European Union] law and of the … anti-dumping agreement in relation to the need to have regard to “like products” have not been met’, and that the requirements of Article 253 EC have not been met either.

66      The applicant’s claims raise the issue of whether the institutions rightly concluded that CFL-i manufactured and sold on the domestic market in China and exported to the European Union, CFL-i manufactured and sold in the European Union, and CFL-i manufactured and sold on the domestic market in the analogue country are ‘like products’.

67      Article 1(2) of the basic regulation provides that a product is to be considered as being dumped if its export price to the Community is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country. Article 1(4) of the basic regulation 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’.

68      The basic regulation refers to the concept of ‘like product’ in the context of the determination of the normal value and of the determination of injury.

69      In order to define the product concerned in an anti-dumping investigation, the institutions may take account of a number of factors, such as the physical, technical and chemical characteristics of the products, their use, and consumer perception (see, to that effect, as regards the definition of the product concerned, Case T‑314/06 Whirlpool Europe v Council [2010] ECR II‑5005, paragraph 138, and Case T‑369/08 EWRIA and Others v Commission [2010] ECR II‑6283, paragraph 82).

70      In the present case, the institutions concluded that the various categories of CFL-i referred to in paragraph 66 above were ‘like products’ since they possessed the same basic physical and technical characteristics and had the same uses.

71      Moreover, account must be taken of the fact that, in the domain of measures to protect trade, the institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine, and that, therefore, review by the European Union judicature of the assessments of the institutions must be confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested assessment is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers (see, to that effect, Case T‑462/04 HEG and Graphite India v Council [2008] ECR II‑3685, paragraph 68 and case‑law cited). Furthermore, it has already been held that the determination of ‘the like product’ falls within the exercise of the wide discretion given to the institutions and is therefore subject to limited review (Case T‑170/94 Shanghai Bicycle v Council [1997] ECR II‑1383, paragraph 63, and Case T‑2/95 Industrie des poudres sphériques v Conseil [1998] ECR II‑3939, paragraph 204).

72      The arguments put forward by the applicant do not support the conclusion that the institutions made a manifest error of assessment in considering that the various categories of CFL-i referred to in paragraph 66 above are ‘like’ products.

73      In the first place, as regards the arguments concerning the lifetime of CFL-i, first, as the Council rightly points out, it has not been established that there is such a clear demarcation as the applicant alleges between CFL-i with a long lifetime and those with a shorter lifetime, particularly since technological innovation is constantly increasing the lifetime of that type of product. Secondly, in any event, the applicant does not contest that, at the time of the review investigation and of the adoption of the contested regulation, both the Chinese producers and the Community producers manufactured CFL-i with a lifetime of less than 6 000 hours as well as CFL-i with a longer lifetime. Thirdly, even if, as the applicant claims, Chinese producers mainly manufacture the first type of CFL-i and Community producers mainly manufacture the second type of CFL-i, those different CFL-i nevertheless have the same basic physical and technical characteristics, are used for the same purpose – namely to provide energy-efficient lighting – and are to a great extent interchangeable. The applicant has not put forward any evidence that calls into question those last findings. Fourthly, as is clear from recital 9 in particular of the preamble to Regulation No 1470/2001 and recital 60 in the preamble to the contested regulation, the institutions calculated the level of injury and the undercutting margins by comparing CFL-i with comparable lifetimes. As the Council explained both in its written submissions and at the hearing, the institutions compared prices by grouping the various types of CFL-i under different ‘product control numbers’, established on the basis of the specific features of the product, such as its lifetime, its power, its recovery, the potential presence of other integrated systems, its length and its diameter.

74      In the second place, the applicant’s claim that the imported CFL-i and CFL-i manufactured in the Community have different end uses is unfounded. First, contrary to what the applicant implies, the existence of such different uses is not at all acknowledged in recital 19 in the preamble to the contested regulation. In that recital, the Council makes reference only to an ‘alleged’ difference, indicating that, even if such a difference existed, it would not change its conclusions in any way. Secondly, even if it were true that the imported CFL-i are primarily intended for private households, and those manufactured in the Community for commercial users, it would not change the fact, pointed out in paragraph 73 above and undisputed by the applicant, that those two categories of CFL-i have the same basic physical and technical characteristics, are used for the same purpose, and are to a great extent interchangeable. Thirdly, contrary to the applicant’s claim, the fact that there is a range of products does not necessarily mean that there is more than one market on the demand side. That fact by itself has no bearing on the issue of whether or not the products in that range belong to different markets. Moreover, the applicant’s argument is contradicted by the case-law. Thus, the Court has held, in respect of anti-dumping duties imposed on bicycles originating in China, that the institutions did not make an error of assessment by treating – for the purpose of determining injury – production of all bicycles, which are usually classified in five sub-categories, as ‘Community production of the like product’, despite the significant differences between those sub‑categories (Shanghai Bicycle v Council paragraphs 65 to 71). Fourthly, and lastly, the applicant’s claim that commercial users use more CFL-i than private households and that the latter are more inclined to buy cheap CFL-i is entirely unsupported by evidence. In any event, private households may also buy more expensive and long-lasting CFL-i and indeed do so in practice. Likewise, it cannot be excluded that commercial users might have lighting needs which could be better met by using cheap CFL-i with a shorter lifetime.

75      It follows that no breach of Article 1(2) and (4) of the basic regulation can be found in the present case.

76      As regards the alleged breach of Article 2(1) and (6) of the anti-dumping agreement, it is apparent from settled case-law that, because of their nature and structure, the WTO agreements are not in principle among the rules in the light of which the European Union judicature should review the legality of measures adopted by the institutions under the first paragraph of Article 263 TFEU (Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraph 47; Case C‑76/00 P Petrotub and Republica v Council [2003] ECR I‑79, paragraph 53; and Case T‑45/06 Reliance Industries v Council and Commission [2008] ECR II‑2399, paragraph 87).

77      However, where the Community intends to implement a particular obligation assumed under the WTO or where the Community measure refers expressly to specific provisions of the WTO agreements, the European Union judicature must review the legality of the EU measure in question in the light of the WTO rules (Portugal v Council, paragraph 49, and Petrotub and Republica v Council, paragraph 54).

78      In that respect, according to the preamble to the basic regulation, and more specifically the fifth recital therein, the purpose of that regulation is, in particular, to transpose as far as possible into European Union law the new and detailed rules contained in the anti-dumping agreement, which include, in particular, those relating to the calculation of the dumping margin, so as to ensure a proper and transparent application of those rules (Petrotub and Republica v Council, paragraph 55). Thus, Article 2(1) and (6) of the anti-dumping agreement are transposed, respectively, in Article 1(2) and (4) of the basic regulation, and in very similar terms.

79      It is therefore established that the Community adopted the basic regulation to satisfy its obligations arising from the anti-dumping agreement. In that regard, as is clear from the case-law cited in paragraph 77 above, as a rule, it is for the Court to review the lawfulness of the contested regulation in the light of Article 2(1) and (6) of that agreement.

80      In that respect, European Union legislation must be interpreted, so far as possible, in the light of international law, in particular where such legislation is specifically intended to implement an international agreement concluded by the Community (Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20; Petrotub and Republica v Council, paragraph 57; and Case T‑35/01 Shanghai Teraoka Electronic v Council [2004] ECR II‑3663, paragraphs 138).

81      In the present case, however, the applicant merely asserts, in a very general manner, that the institutions infringed Article 2(1) and (6) of the anti-dumping agreement, without putting forward any argument in support of that assertion.

82      Under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. It is settled case-law that the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if necessary without other supporting information. In order to guarantee legal certainty and the sound administration of justice, for an action to be admissible, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94 and the case-law cited).

83      Since the complaint alleging breach of Article 2(1) and (6) of the anti-dumping agreement lacks the minimum level of clarity and precision required, it must be declared inadmissible, under the provisions cited in paragraph 82 above, in order to guarantee legal certainty and the sound administration of justice.

84      In any event, Article 2(1) and (6) of the anti-dumping agreement correspond, in essence, to Article 1(2) and (4) of the basic regulation. The applicant has failed to differentiate the concept of ‘like product’ under the former provisions and the same concept under the latter provisions. Since the complaint alleging breach of Article 1(2) and (4) of the basic regulation has been rejected (see paragraphs 66 to 75 above), the complaint alleging breach of Article 2(1) and (6) of the anti-dumping agreement must, accordingly, also be rejected.

85      Consequently, the first part of the first plea in law cannot be upheld.

 The second part, alleging breach of the obligation to state reasons

86      It is apparent from the case-law that the statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the European Union authority which adopted the contested measure, to inform the persons concerned of the justification for the measure adopted and thus to enable them to defend their rights and the Courts of the European Union to exercise their powers of review (Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraph 88, and Case T‑48/96 Acme v Council [1999] ECR II‑3089, paragraph 141)

87      The statement of reasons need not set out 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 (Case T‑164/94 Ferchimex v Commission [1995] ECR II‑2681, paragraph 118). It is sufficient if the Council sets out the facts and legal considerations which have decisive importance in the context of the regulation (see, to that effect, Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraphs 103 and 104).

88      In recitals 16 to 19 in the preamble to the contested regulation, the Council stated sufficient reasons for its findings concerning the determination of the like product. Such indications are also set out in recitals 12 and 13 in the preamble to Commission Regulation (EC) No 255/2001 of 7 February 2001 imposing a provisional anti-dumping duty on imports of [CFL-i] originating in the People’s Republic of China (OJ 2001 L 38, p. 8) and in recitals 8 and 9 in the preamble to Regulation No 1470/2001, which regulations illuminate the background to the adoption of the contested regulation.

89      Furthermore, it is clear from the applicant’s arguments in support of the first part of the first plea in law that it understood perfectly the institutions’ reasoning in the determination of the ‘like product’.

90      It follows that the second part of the first plea must be rejected, as, accordingly, must the first plea in its entirety.

 The second plea in law, concerning the data used to evaluate the likelihood that injury would continue or recur

91      The applicant puts forward various arguments concerning the data used by the institutions to evaluate the likelihood that injury would continue or recur. Those arguments can be grouped into five parts, alleging, first, breach of Articles 2 and 3 of the basic regulation and a manifest error of assessment, secondly, breach of the anti-dumping agreement, thirdly, breach of the obligation to state reasons, fourthly, infringement of the applicant’s rights of defence, and fifthly, breach of internal guideline No 4/2003.

92      The Council, supported by the Commission and by Osram, claims that the applicant’s claims are unfounded.

93      Before examining those different parts, the relevant provisions of the contested regulation must be recalled.

94      In section D of the contested regulation (recitals 47 to 93), the Council examined the issue of the ‘likelihood of continuation or recurrence of injury’. In the second part of that section (recitals 52 to 64), it analysed the situation on the Community market, including the issue of Community consumption (recitals 52 to 55).

95      Recital 52 in the preamble to the contested regulation indicates that the Community consumption was established both on the basis of the sales volumes of the Community manufacturers and of Eurostat figures concerning the volume of imports from the country concerned and other third countries, duly adjusted where appropriate.

96      Recital 53 in the preamble to the contested regulation reads as follows:

‘CN code 8539 31 90 may include imports from products other than the product concerned. As a consequence, an estimate of the percentage of imports of the product concerned within this code was made on the basis of questionnaire replies by interested parties, information provided by the complainant and cross-checked with confidential statistical information available to the Commission. Whereas in some instances it could be argued that full CN code data could well reflect import volumes and values of the product concerned, the assessment was made conservatively, thus minimising these amounts. In any event, the conclusions are the same whether this conservative approach or full CN code data are used. …’.

97      Recital 54 in the preamble to the contested regulation contains a table (Table 1) describing the development of Community consumption of the product concerned during the period 2003-2005 and during the period of the review investigation. In recital 55 in the preamble to that regulation, it is noted in particular that, during the period considered consumption of the product concerned increased by 90% and that this increase of consumption was supplied partly by an increase in imports of the product concerned destined to consumers.

98      The data relating to imports carried out under CN code 85393190 were also used in assessing the development of imports (recitals 56 to 64 in the preamble to the contested regulation). Table 2, in recital 56 in the preamble to the contested regulation, shows the development of the volumes and market shares of imports of the product concerned originating in China.

 The first part, alleging breach of Articles 2 and 3 of the basic regulation and a manifest error of assessment

99      The applicant asserts that a considerable proportion of the data relating to imports from China was calculated on the basis of Eurostat data on imports of products coming within CN Code 85393190. However, that code includes products other than CFL-i. The applicant submits that ‘[t]he unjustifiable use of data in general and, Eurostat data in particular, seriously undermines, and inflates, the calculations relating to the likelihood of continuation or recurrence of injury and dumping, it distorts the nature of the Community interest and wrongly attributes the causation of injury to dumping’. It considered that, the arbitrary use of data undermines the whole review procedure and gives rise to a manifest error of assessment and also to failure to comply with the anti-dumping agreement and the basic regulation.

100    First, it must be noted that the data complained of by the applicant were not used in examining the likelihood of continuation or recurrence of dumping, as is clear from the part of the contested regulation devoted to that examination (recitals 20 to 46). The applicant cannot, therefore, allege breach of Article 2 of the basic regulation, which concerns exclusively the determination of dumping.

101    Secondly, the institutions did not make a manifest error of assessment, nor infringe Article 3 of the basic regulation, which lays down the rules relating to the determination of injury, by taking into account the data complained of by the applicant.

102    In that respect, the Court has held that the institutions do not commit a manifest error of assessment where they base their findings on the information reasonably available to them (Case C‑315/90 Gimelec and Others v Commission [1991] ECR I‑5589, paragraphs 13 and 14, and Shanghai Teraoka Electronic v Council, paragraphs 229 and 230). It is clear that this was so in the present case. In particular, it cannot be disputed that the institutions made entirely reasonable and proper use of the Eurostat data relating to the imports of products under CN code 85393190. Fully conscious of the fact that this code also covers products other than the product concerned, they estimated the percentage of imports of the product concerned within this code on the basis of the answers given by the interested parties to the questionnaire sent to them by the Commission, and on the basis of information submitted to the Commission by 2CFL-i. Moreover, the reliability of those responses and that information was verified by cross-checking them against confidential statistical data held by the Commission, namely, as the Council stated in its defence, information collected in the context of the Integrated Tariff of the European Communities (TARIC) and information provided by the Member States pursuant to Article 14(6) of the basic regulation (now Article 14(6) of Regulation No 1225/2009). Moreover, when the figures received from the various abovementioned sources differed, the institutions always used those which indicated the smallest import volume of the product concerned. Furthermore, the applicant has not even attempted to prove that the adjustments carried out by the institutions were inaccurate or based on incorrect data. It merely claims that CN code 85393190 also covered products other than the product concerned, a fact which the institutions have never disputed and which was the very reason that they carried out the abovementioned adjustments.

103    In any event, the applicant has failed to put forward any specific argument capable of calling into question the main conclusions that the institutions drew from their analysis of the adjusted Eurostat data, namely those which showed that, during the period considered, the volume of dumped imports in the Community of CFL-i originating in China as well as the share of those imports in the Community consumption grew, while the average price of those imports slightly decreased. Nor has it called into question the finding, in recital 53 in the preamble to the contested regulation, that the institutions came to the same conclusions on the basis of the non-adjusted Eurostat data relating to CN code 85393190. The arguments put forward by the applicant must therefore be rejected.

 The second part, alleging breach of the anti-dumping agreement

104    The applicant merely claims, in very general terms, that the institutions infringed the anti-dumping agreement, without putting forward any argument in support of that claim, or even specifying the provisions of that agreement alleged to have been infringed.

105    In light of the case-law set out in paragraph 82 above, the present part of the second plea in law must be declared inadmissible.

 The third part, alleging breach of the obligation to state reasons

106    The applicant claims that in the contested regulation, the institutions failed to explain, the methodology used in order to extrapolate the data relating to imports from China from the Eurostat data.

107    The Court finds that the explanations in recitals 52 and 53 in the preamble to the contested regulation comply adequately with the requirements to state reasons as laid down by the case-law, as noted in paragraphs 86 and 87 above. It must be emphasised that, contrary to what the applicant implies in its line of argument, the institutions were not required to specify all of the various matters of fact or law on which their findings are based. As regards the Eurostat data at issue, the institutions needed only to explain why and how those data were adjusted. The abovementioned recitals in the preamble to the contested regulation provide sufficient detail in that respect.

108    It follows that the third part of the second plea in law must be rejected as unfounded.

 The fourth part, alleging breach of the applicant’s rights of defence

109    The applicant claims that the institutions infringed its rights of defence by failing to explain the methodology used in adjusting the Eurostat data, by failing to give the applicant access to the confidential statistical information referred to in recital 53 in the preamble to the contested regulation, and by granting the applicant only partial access to the internal guidelines.

110    It is settled law that the rights of the defence must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them (Case C‑49/88 Al-Jubail Fertilizer v Council [1991] ECR I‑3187, paragraph 15). In particular, the undertakings concerned should be 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 (Al-Jubail Fertilizer v Council, paragraph 17).

111    Nevertheless, an irregularity in relation to the rights of the defence can result in annulment of the anti-dumping regulation concerned only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome (Case C‑141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I‑9147, paragraphs 81 and 107). However, the applicant cannot be required to show that the Commission’s decision would have been different in content but simply that such a possibility cannot be totally ruled out (see Foshan Shunde Yongjian Housewares & Hardware v Council, paragraph 94, and the case-law cited).

112    In the first place, the complaint alleging that the institutions failed to explain the methodology used in adjusting the Eurostat data has already been rejected as unfounded in paragraph 107 above.

113    In the second place, the complaint alleging that the institutions failed to grant the applicant access to the confidential statistical information referred to in recital 53 in the preamble to the contested regulation must also be rejected.

114    First, as the Council rightly points out and as acknowledged by the applicant in response to a question put by the Court at the hearing, at no time during the administrative procedure did the applicant request access to the statistical information at issue, even though it is referred to in paragraph 53 of the general disclosure document. The applicant cannot, therefore, claim that the institutions failed to grant it access to that information.

115    Secondly, the institutions were, in any event, not authorised to disclose to the applicant the statistical information at issue, in light of its confidential nature. As the institutions stated at the hearing, without being contradicted by the applicant, that information contained indications relating to the volume of imports of certain individual producers. In that regard, the institutions must reconcile the need to respect the right to a fair hearing with the requirements of confidentiality (see, to that effect, Joined Cases T‑159/94 and T‑160/94 Ajinomoto and Nutrasweet v Council [1997] ECR II‑2461, paragraphs 83 and 84).

116    Thirdly, it has not been established to a sufficient degree of probability that the administrative procedure could have resulted in a different outcome if the applicant had had access to the confidential statistical information at issue. It does not appear that this information could have had even the slightest effect on the institutions’ assessments and findings concerning the likelihood of continuation or recurrence of injury. As mentioned in paragraph 102 above, that information was used only to cross-check the information received in response to the anti-dumping questionnaire and that submitted by the complainant, which information had itself been used in order to adjust the Eurostat data concerning CN code 85393190. Furthermore, as already stated in paragraph 102 above, the applicant does not dispute that the main findings of the institutions’ analysis would have been identical if the data at issue had not been adjusted, nor even that those findings are correct. Therefore, the applicant did not need the confidential statistical data at issue in order to exercise its rights of defence.

117    In the third place, the applicant cannot claim that its rights of defence were infringed on the ground that it had only partial access to the internal guidelines. Those guidelines are internal instructions only, intended for the Commission officials responsible for anti-dumping cases, indicative in nature, and comprised mainly of technical guidelines. They are not binding on the Commission officials, are devoid of any legal effect and, in particular, do not create any rights or obligations in respect of third parties. Consequently, the applicant could not have based any argument on those internal guidelines which could have led to the content of the contested regulation being different.

118    In those circumstances, the applicant’s rights of defence were not infringed and, accordingly, the fourth part of the second plea in law must be rejected.

 The fifth part, alleging breach of internal guideline No 4/2003

119    The applicant claims that the Commission failed to comply with internal guideline No 4/2003, because, contrary to that guideline, it did not communicate any information relating to the dumping calculations and methodology, to the ‘choice of the analogue country’, and to the ‘use and methodology of data coming from Eurostat’.

120    In that respect, first, for the reasons set out in paragraph 117 above, the applicant cannot effectively rely on any breach of internal guideline No 4/2003. Even if the Commission had not acted in accordance with one of the instructions set out in that document, it would have had no effect on the legality of the contested regulation.

121    Secondly, the applicant’s second plea in law concerns, in essence, the issue of the use of certain Eurostat data in order to assess the likelihood of continuation or recurrence of injury. The complaint alleging that the Commission did not communicate any information relating to the ‘dumping calculations and methodology’, or to the ‘choice of the analogue country’ is therefore of no relevance in the context of the present plea in law.

122    Thirdly, in any event, the present part of the second plea is factually incorrect. In the general disclosure document (recitals 20 to 93), the Commission disclosed, to the requisite legal standard, the information referred to in internal guideline No 4/2003 that is necessary in the context of a review of expiring anti-dumping measures, and to which the applicant claims to have had no access.

123    Accordingly, the fifth part of the second plea in law and, in consequence, the second plea in law in its entirety, must be dismissed.

 The third plea in law, concerning the choice of the Republic of Korea as the analogue country

124    The applicant advances various arguments concerning the choice of the Republic of Korea as the analogue country, which can be grouped into four parts. In the first part, the applicant invokes the infringement of the ‘principles contained in the basic regulation’ and of Article 2 of the anti-dumping agreement, as well as a manifest error of assessment. In the second part, it alleges breach of Article 2(7)(a) of the basic regulation (now Article 2(7)(a) of Regulation No 1225/2009) and a manifest error of assessment. In the third part, it invokes the infringement of its rights of defence. In the fourth part, it alleges a breach of the obligation to state reasons.

125    The Council, supported by the Commission and by Osram, submits that the applicant’s allegations are unfounded.

126    Before examining the various parts of this plea, the applicable provisions of the basic regulation, the background to the choice of the analogue country in the present case, and the relevant findings in the contested regulation should all be borne in mind.

127    Article 2 of the basic regulation contains the rules relating to the determination of dumping. That procedure includes four steps: the determination of the ‘normal value’, the determination of the ‘export price’, the comparison between the export price and the normal value, and the calculation of the ‘dumping margin’.

128    Article 2(1) of the basic regulation (now Article 2(1) of Regulation No 1225/2009) sets out the general principle pursuant to which the normal value is usually to be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country. Article 2(1) to (6) (now Article 2(1) to (6) of Regulation No 1225/2009) lays down the method of calculation of that normal value.

129    Article 2(7) of the basic regulation lays down special rules for determining the normal value in the case of imports from non-market economy countries.

130    Accordingly, Article 2(7)(a) of the basic regulation provides:

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

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

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

131    Article 2(7)(b) of the basic regulation (now Article 2(7)(b) of Regulation No 1225/2009) lays down a method of determining the normal value which differs from that set out in Article 2(7)(a). It states:

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

132    Article 2(7)(c) of the basic regulation (now Article 2(7)(c) of Regulation No 1225/2009) indicates, inter alia, that ‘[a] claim under [Article 2(7)(b)] must be made in writing and contain sufficient evidence that the producer operates under market economy conditions’ and sets out a number of criteria in that respect. It states that a determination of whether the producer meets the abovementioned criteria is to be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment. Finally, it provides that ‘this determination shall remain in force throughout the investigation’.

133    During the initial investigation, the institutions granted market economy treatment (‘MET’) to two Chinese exporting producers companies under Article 2(7)(b) of the basic regulation. Accordingly, in respect of those two companies, the institutions determined the normal value in accordance with Article 2(1) to (6) of the basic regulation (see recitals 14 to 25 in the preamble to Regulation No 255/2001 and recital 14 of Regulation No 1470/2001). As regards the exporting producers which were not granted MET, the institutions applied the method of determining the normal value laid down in Article 2(7)(a) of the basic regulation (see recitals 26 to 34 in the preamble to Regulation No 255/2001 and recital 14 in the preamble to Regulation No 1470/2001). Recital 26 in the preamble to Regulation No 255/2001 thus indicates that, in accordance with Article 2(7)(a) of the basic regulation, ‘normal value for the exporting producers that were not granted [MET] was established on the basis of the prices of the analogue country for products comparable to those sold by the Chinese exporting producers to the Community, per product type’.

134    In the initial investigation, the institutions chose Mexico as an appropriate market economy third country for the purpose of establishing normal value for China, that is to say, as the analogue country (see recitals 27 to 32 in the preamble to Regulation No 255/2001 and recitals 10 to 12 in the preamble to Regulation No 1470/2001). That normal value had been determined on the basis of information communicated by the only Mexican producer that agreed to cooperate with the Commission, namely Philips Mexicana SA de CV (see recitals 33 and 34 in the preamble to Regulation No 255/2001 and recitals 13 and 14 in the preamble to Regulation No 1470/2001).

135    In the notice of initiation of the review procedure, the Commission indicated that it envisaged using Mexico as the analogue country again. The Commission requested the parties concerned to submit their comments on the appropriateness of that choice within 40 days of the publication of the notice in the Official Journal of the European Union.

136    Recitals 26 to 31 in the preamble to the contested regulation are worded as follows:

‘(26) Since normal value had to be established on the basis of analogue country data for all producers that did not meet MET criteria, the same methodology as in the original investigation was used. Therefore, the normal value for all Chinese exporters had to be determined on the basis of data obtained from producers in a market economy third country, in accordance with Article 2(7) of the basic Regulation.

(27) In the notice of initiation, Mexico was envisaged as an appropriate market economy third country in respect to the Community exports of [China]. Mexico was already used [as] the analogue country in the original investigation.

(28) However, no cooperation could be obtained from Mexico. It was found that production of the product concerned had been shut down in Mexico before the beginning of the [review investigation period].

(29) Therefore, producers in other market economy third countries, including Indonesia, Malaysia, India and the Republic of Korea (Korea), were contacted with a view to cooperating with the review investigation.

(30) The highest level of cooperation was obtained from Korea where two producers filed questionnaire responses and were willing to subsequently undergo on-spot verifications. One producer from Malaysia also replied to the Commission services’ request but the data supplied were largely deficient. Another producer from India replied but its domestic sales were not representative. Moreover, it was found that the existence of several duties, such as countervailing duty, special countervailing duty, and Custom educational duty, had a negative impact on the openness of the Indian market. Therefore and given that no major competition or trade obstacles were found to exist on the Korean market it was considered that Korea was the most appropriate analogue country choice.

(31) Subsequently, various producers and producers’ associations in Korea were contacted and invited to cooperate through the completion of a questionnaire. Two producers in … Korea provided a questionnaire reply and fully cooperated in the investigation. Consequently, calculations were based on the verified information from these two cooperating producers.’

 The first part, alleging infringement of the ‘principles set out in the basic regulation’ and of Article 2 of the anti-dumping agreement, as well as a manifest error of assessment

137    The applicant claims that, by failing to determine the normal value by reference to the two exporting producers that had been granted MET, the institutions committed a manifest error of assessment and infringed the principles set out in the basic regulation as well as Article 2 of the anti-dumping agreement.

138    The applicant’s allegations are based on a misunderstanding of the applicable provisions and must, accordingly, be rejected as unfounded.

139    The method of determining normal value set out in Article 2(7)(b) of the basic regulation is an exception to the specific rule laid down in Article 2(7)(a) applicable to imports from non-market-economy countries. It is settled case-law that any derogation from or exception to a general rule must be interpreted strictly (see Case T‑255/01 Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council [2003] ECR II‑4741, paragraph 39 and the case-law cited).

140    Moreover, the wording of Article 2(7)(b) of the basic regulation shows that the determination of the normal value of products originating in China by reference to the rules laid down in Article 2(1) to (6) thereof is confined to specific individual cases in which the producers concerned have each, with regard to itself, made a properly substantiated claim in accordance with the criteria and procedures laid down in Article 2(7)(c) of the basic regulation to show that market-economy conditions prevail for them (see, to that effect, Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, paragraph 40).

141    Therefore, contrary to the applicant’s allegations, when MET is granted to one or more specific Chinese producers, the institutions are not automatically required to grant that treatment to all the other producers of that country – that is to say, even to those which did not make a claim for that treatment or which did not fulfil the required criteria for that purpose – and, accordingly, to apply Article 2(1) to (6) of the basic regulation to those other producers.

142    Furthermore, the use in the review procedure of the data concerning the two Chinese exporting producers that were granted MET in the initial investigation, for the purposes of determining the normal value, would have infringed Article 11(9) of the basic regulation (now article 11(9) of Regulation No 1225/2009), under which ‘[i]n all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2’.

143    As regards the alleged breach of Article 2 of the anti-dumping agreement, it suffices to note that the applicant puts forward the same arguments as those relied on in support of the alleged manifest error of assessment and the alleged infringement of the principles set out in the basic regulation, which have been examined and rejected in paragraphs 138 to 142 above.

144    Consequently, the first part of the third plea in law cannot be upheld.

 The second part, alleging infringement of Article 2(7)(a) of the basic regulation and a manifest error of assessment

145    In the alternative, the applicant claims that the institutions made a manifest error of assessment and infringed Article 2(7)(a) of the basic regulation in choosing the Republic of Korea, and not Mexico, as the analogue country. It observes that Mexico had already been chosen as the analogue country during the original investigation and, referring to extracts from a June 2007 market study, claims that, contrary to what is stated in recital 28 in the preamble to the contested decision, production of CFL-i had not ceased in that country. As regards the last point, it refers to a Mexican company, Electro Lighting Mexicana SA de CV.

146    The applicant also takes issue with the fact that the institutions used only two Korean producers when there were allegedly more than 20 independent Korean producers. According to the applicant, that choice is all the more open to criticism because one of those two producers was related to Osram.

147    In the first place, it is settled case-law that the Courts of the European Union exercise only a limited review over the institutions’ choice between the different methods of calculating the dumping margin, and their assessment of the normal value of a product (see Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723, paragraph 41 and the case-law cited). As regards the choice of analogue country, they should, in particular, verify that those institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the documents in the case was considered with all the care required for the view to be taken that the normal value was determined in an appropriate and not unreasonable manner (Case C‑16/90 Nölle [1991] ECR I‑5163, paragraphs 12 and 13, and Case C‑338/10 GLS [2012] ECR I‑0000, paragraph 22).

148    In the second place, the arguments advanced by the applicant do not prove that the institutions failed to comply with the requirements referred to in paragraph 147 above by choosing the Republic of Korea rather than Mexico as the analogue country.

149    Accordingly, first, it is clear from the documents before the Court that, initially, at the time of the publication of the notice of initiation of the review procedure, the Commission had envisaged using Mexico as the analogue country. However, shortly after the publication of that notice, it contacted the Mexican company which had agreed to cooperate during the initial investigation, and which was also the only producer of CFL-i in that country, namely Philips Mexicana. Subsequently, by letter of 26 July 2006, Philips International, a company belonging to the same group of undertakings as Philips Mexicana, informed the Commission that Philips Mexicana had ceased to produce CFL-i. Since no interested party – including the applicant, which did not make itself known to the Commission until 13 December 2006 – had produced any evidence whatever of the possible existence of any CFL-i production in Mexico, the Commission was right to seek an alternative analogue country. At no time during the review procedure was any such evidence brought to the attention of the institutions.

150    The extracts from the June 2007 market study relied on by the applicant are not sufficient to prove that, at the time of the choice of the analogue country, CFL-i was still being produced in Mexico. Those extracts provide only general data on the sale of lamps, including florescent lamps, in Latin America, without it being possible to verify whether those florescent lamps include CFL-i and, if so, to what extent, or whether the sole Mexican producer cited by the applicant, namely Electro Lighting Mexicana, manufactures CFL-i. In any event, at no time during the review procedure did the applicant communicate those extracts to the institutions, which could not therefore take them into account before the adoption of the contested regulation.

151    Secondly, it is clear from the factors set out in recitals 29 to 31 in the preamble to the contested regulation, and corroborated by the documents and information submitted by the Council in response to the measure of organisation of procedure decided upon by the Court, that the choice of the Republic of Korea as the analogue country was made in a reasonable manner, taking into account all of the reliable information available at the time of that choice, and with all the necessary care. Accordingly, by letters of 25 October 2006, the Commission sent an anti-dumping questionnaire to two Indonesian CFL-i producers, asking them to complete and return the questionnaire before 15 November 2006. Only one of the two producers replied to the Commission’s request, and then only on 17 February 2007, long after the prescribed time-limit. By letters of 27 October 2006, the Commission sent the same request to a CFL-i producer in Malaysia and six Indian CFL-i producers, asking each of them to follow up on that request before 17 November 2006. The data supplied by the Malaysian producer proved to be largely inadequate. On 14 December 2006, one Indian producer replied to the Commission’s request, but it was found that its domestic sales were not representative and that the existence of several import duties had a negative impact on the openness of the Indian market.

152    As for the Korean producers, it is clear from the documents before the Court that the Commission sent an anti-dumping questionnaire to Osram Korea Co. Ltd on 11 October 2006, which replied on 29 November 2006. Furthermore, on 13 December 2006, the Commission sent an e-mail to its delegation in the Republic of Korea, asking it to obtain the cooperation of CFL-i producers in that country. By e-mail of 15 December 2006, the delegation informed the Commission that it had contacted two Korean producers, namely Hyosun Electric Co., Ltd and Kumho Electric Inc. On 21 December 2006, the delegation informed the Commission that Hyosun Electric had replied to the anti-dumping questionnaire, but that Kumho Electric had refused to do so, for reasons of confidentiality.

153    It cannot therefore be validly disputed that the Commission showed care, having sought the cooperation of several producers in four different countries after ruling out Mexico for the reasons set out in paragraph 149 above. Moreover, the Korean producers clearly provided the highest level of cooperation and produced the most reliable information.

154    Furthermore, it cannot be inferred from the mere fact that one of the two Korean producers selected by the institutions was linked to Osram that the institutions committed a manifest error of assessment in using the data provided by that producer, particularly in the light of the fact that they duly verified those data and that the applicant has failed to produce any evidence capable of proving that those data are incorrect, or even to explain how the link in question could have affected their reliability.

155    As to the applicant’s allegation that there are more than 20 ‘independent producers’ in Korea, it suffices to point out that while the report extracts on which it relies to support that allegation indeed list a large number of Korean producers and suppliers of lamps, lamp parts, lamp accessories, and lighting systems, the vast majority of them do not produce CFL-i.

156    It follows from the foregoing that the second part of the third plea in law must be rejected as unfounded.

 The third part, alleging infringement of the applicant’s rights of defence

157    The applicant claims that the institutions infringed its rights of defence by failing to give it the opportunity to comment on the fact that production of CFL-I had ceased in Mexico, on the decision to use the Republic of Korea as the analogue country, and on the choice of the two producers in that country. The applicant contends that the non-confidential file to which it had access contained no document relating to the choice of the Republic of Korea, and it rejects the Council’s assertion that it did not make itself known to the Commission until after the Commission had already chosen the new analogue country.

158    It is not in dispute that the non-confidential file of the investigation contained no information on the substitution, as the analogue country, of the Republic of Korea for Mexico.

159    However, while that omission may be regrettable, it did not infringe the applicant’s rights of defence.

160    In the first place, as the Council and Osram point out, the applicant made itself known to the Commission only very belatedly, on 13 December 2006. In that respect, Article 5(10) of the basic regulation (now Article 5(10) of Regulation No 1225/2009) provides, inter alia, that the notice of initiation of the procedure is to ‘state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation’. Pursuant to that provision, the Commission stated, in section 6(a)(ii) of the notice of initiation of the review procedure, published on 9 July 2006, that ‘[a]ll interested parties, if their representations are to be taken into account during the investigation, must make themselves known by contacting the Commission, present their views and submit questionnaire replies or any other information within 40 days of the date of publication of this notice in the Official Journal of the European Union’ and that ‘the exercise of most procedural rights set out in the basic Regulation depends on the party’s making itself known within the aforementioned period’. In the present case, the applicant should have therefore made itself known to the Commission before 28 August 2006.

161    When, on 30 January 2007, the Commission granted the applicant’s request to participate in the review procedure – despite the fact that it had been submitted well past the prescribed time-limit – it had long since ruled out the possibility of using Mexico as the analogue country (see paragraph 149 above) and, as is clear from the details set out in paragraphs 151 to 153 above and the explanations given by the institutions at the hearing, had already chosen the Republic of Korea. At that very late stage of the review procedure, the Commission was not at all obliged to reopen the debate on the issue of the choice of the analogue country or to take into account any of the applicant’s observations on that issue. As the Council rightly pointed out in its written submissions, when an interested party makes itself known to the Commission after the prescribed time-limit, it must accept the procedure at the stage it is, and as it stands, at the time it joins it, and the Commission has a broad discretion as to the appropriateness of allowing that party to submit written and/or oral observations and of taking those observations into consideration. In particular, the Commission may refuse to take such observations into account if to do so would prolong unduly the procedure. In that respect, under Article 11(5) of the basic regulation, reviews carried out pursuant to paragraph 2 of that article must be done so expeditiously and are normally to be concluded within 12 months – and in all cases within 15 months – of the date of initiation of the review. Moreover, the choice of the analogue country is an issue which has far-reaching implications for the conduct of the investigation and must consequently be made as soon as possible and cannot be postponed or constantly revised.

162    In the second place, in any event, the applicant had the opportunity, before the adoption of the contested regulation, to make its views known effectively as regards the merits of the choice of the Republic of Korea as the analogue country and of the two Korean producers. Accordingly, in paragraphs 12 to 14 of the July 2007 disclosure document, the Commission not only expressly indicated that it envisaged using the Republic of Korea as the analogue country, but also identified the two Korean producers concerned. Moreover, in the general disclosure document, the Commission confirmed the choice of the Republic of Korea as the analogue country and of the two Korean producers (see paragraphs 11 to 13 of the general information document) and set out in detail the line of reasoning which had led it to make those choices, in the same terms as used in the contested regulation (see paragraphs 26 to 31 of the general information document).

163    The applicant had the opportunity to comment on those two documents and, moreover, took that opportunity by submitting written observations, as regards the first document on 23 July 2007, and as regards the second document on 12 September 2007. However, neither in those observations nor at any other time in the course of the review procedure did the applicant put forward any reason for its view that the use of Mexico as the analogue country should continue, that the choice of the Republic of Korea as the analogue country was not appropriate or that Korean producers other than the two producers in question should have been chosen, despite the fact that the information relating to those issues in the July 2007 disclosure document and in the general disclosure document was amply sufficient to allow it to do so. In particular, it is only in the present action that, for the first time, the applicant has claimed that CFL-i was still being produced in Mexico at the material time, and, moreover, it supported that claim only with evidence of insufficient probative value (see paragraph 150 above). It is clear from its observations of 23 July 2007 that it was aware since that date that the Commission considered that Mexico could not be chosen as the analogue country on the ground that such production no longer existed.

164    It follows that the third part of the third plea in law must be rejected as unfounded.

 The fourth part, alleging infringement of the obligation to state reasons

165    The applicant claims that the Council infringed Article 253 EC because it did not state the reasons for its choice of the Republic of Korea as the analogue country or its selection of only two Korean producers.

166    The Court finds that the present part of the third plea in law is clearly unfounded. The factors that the institutions took into account in making those choices are clearly indicated in recitals 26 to 31 in the preamble to the contested regulation.

167    Accordingly, the fourth part of the third plea in law must be rejected, as must the third plea in law in its entirety.

 The fourth plea in law, concerning the Community interest

168    The applicant puts forward various arguments in relation to the Community interest, which may be grouped into two parts. In the first part, the applicant alleges infringement of Articles 7, 9 and 21 of the basic regulation and a manifest error of assessment. In the second part, it alleges breach of the obligation to state reasons.

169    The Council, supported by the Commission and by Osram, contend that this plea in law should be rejected.

170    Before examining the various arguments, the applicable provisions of the basic regulation and the relevant findings in the contested regulation should be recalled.

171    Under Article 9(4) of the basic regulation (now Article 9(4) of Regulation No 1225/2009), ‘[w]here the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting by simple majority on a proposal submitted by the Commission after consultation of the Advisory Committee’.

172    Article 21(1) of the basic regulation (now Article 21(1) of Regulation No 1225/2009) provides:

‘A determination as to whether the Community interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers; and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Community interest to apply such measures.’

173    Article 11(2) of the basic regulation does not refer expressly to the Community interest as one of the conditions for retaining a measure due to expire. However, the Court has inferred from Article 11(5) and (9) of the basic regulation (Article 11(9) having become Article 11(9) of Regulation No 1225/2009) that the conditions for retaining a measure that is due to expire are mutatis mutandis the same as those for the imposition of new measures and that the Community interest requirement, provided for in Article 9(4) and Article 21 of the basic regulation, must also be taken into consideration during a review when deciding whether to retain measures that are due to expire (Case T‑132/01 Euroalliages and Others v Commission [2003] ECR II‑2359, paragraphs 38 to 42).

174    In recitals 94 to 116 in the preamble to the contested regulation, the Council considered whether the maintenance of the anti-dumping measures at issue would be in the Community interest and, if so, for what period. Accordingly, it successively assessed the interest of Osram, by referring, in essence, to the findings it had made in its analysis of the likelihood of continuation or recurrence of injury, the interest of other Community producers, the interest of suppliers, the interest of importers/traders and retailers, the interest of consumers and, lastly, the development of the product concerned on the Community market. The Council considered that ‘the overall balance of the relevant interests’ lay in discontinuing the measures having noted, in particular, that ‘the Community industry [was] itself heavily reliant on imports from [China] to meet demand, which [was] expanding rapidly, some Community producers themselves d[id] not favour a continuation of the measures, and the measures [had] been shown to have [had] a significant impact on consumer prices and hence on the choices made by consumers as to whether to buy CFL(i) or less efficient incandescent lamps’ (recitals 115 and 116). None the less, balancing the interests of Osram with ‘the interests at stake and in particular those of the other producers in the Community’, the Council found that it was in the short-term interest of the Community to continue the anti-dumping measures at issue for a further adjustment period (recital 116). More specifically, it found that it was appropriate that the measures be maintained for one year only, on the basis that, after that period, ‘the likely negative effects on consumers and other operators would be disproportionate to the benefits which Community manufacturers would derive from the measures’ (recital 116).

 The first part, alleging infringement of Articles 7, 9 and 21 of the basic regulation and a manifest error of assessment

175    The applicant claims that the anti-dumping measures at issue were maintained ‘without the necessary preconditions … being met’, because they were ‘desired rather than required’. It submits that, in the general disclosure document, the Commission reached a conclusion that was diametrically opposite to that which it had set out in the July 2007 disclosure document.

176    Moreover, the applicant, referring to recital 116 in the preamble to the contested regulation, asserts that the Council failed to distinguish the Community interest and the interest of the only producer to support continuation of the measures. The applicant maintains that the Council committed a flagrant breach of Article 21 of the basic regulation and made a manifest error of assessment by affording a disproportionate importance to Osram’s interest to the detriment of the interests of consumers and other Community producers. It contests the Council’s assessment, in recital 116, that, after one year, the likely negative effects on consumers and other operators of maintaining the measures would be disproportionate to their positive effects for Osram.

177    In the light of the case-law cited in paragraph 82 above, the complaint alleging infringement of Article 7 of the basic regulation should be regarded as inadmissible at the outset. That article concerns the imposition of provisional measures and the applicant provides no explanation as to how it might have been infringed in the present case.

178    The complaints alleging infringement of Articles 9 and 21 of the basic regulation and a manifest error of assessment must be rejected as unfounded.

179    In the first place, the applicant’s claim that the anti-dumping measures at issue were maintained ‘without the necessary preconditions … being met’ is totally incorrect. It is clear from paragraph 97 of the application that the ‘preconditions’ referred to by the applicant relate to the definition of the like product, the determination of the likelihood of continuation or recurrence of injury, the determination of the normal value, and the definition of the Community industry for the purpose of establishing standing. Yet contrary to what is implied by the applicant, the Council did not seek in any way to dispense with its obligation to demonstrate that those conditions had been satisfied by relying on the fact that the Community interest required that those anti-dumping measures be maintained. On the contrary, those various conditions were analysed in detail in the contested regulation, as is clear from the examination of the first pleas in law above and from the considerations set out in paragraphs 206 to 221 below. The applicant may disagree with the Council’s conclusions as regards those conditions, but that certainly does not mean that the Council failed to analyse them.

180    Contrary to the applicant’s claim, the fact that, in the general disclosure document, the Commission came to a conclusion that was diametrically opposite to that which it had set out in the July 2007 disclosure document does not prove that the anti-dumping measures at issue were ‘desired rather than required’. According to settled case-law, an anti-dumping investigation is an ongoing process during which many findings are constantly revised. It cannot therefore be ruled out that the definitive findings made by the Commission will differ from the findings made at another stage of the investigation (see, to that effect, Case C‑121/86 Epicheiriseon Metalleftikon, Viomichanikon kai Naftiliakon and Others v Council [1989] ECR 3919, paragraphs 34 and 35, and Shanghai Teraoka Electronic v Council, paragraph 182). The Commission must take account of evidence gleaned from the entire administrative procedure and must adopt its final decision on the basis of observations submitted to it in response by the parties and also other findings of fact made throughout the investigation procedure (Case T‑296/06 Dongguan Nanzha Leco Stationery v Council [2009], not published in the ECR, paragraph 72). In the present case, on 25 July 2007, 2CFL-i submitted detailed observations on the July 2007 disclosure document, setting out the reasons why it considered that Philips Poland and GE Hungary should be excluded from the Community production in accordance with Article 4(1)(a) of the basic regulation (now Article 4(1)(a) of Regulation No 1225/2009). Those observations gave the Commission valid reason to reconsider its assessment, particularly since, as the applicant knew and as was clear from the observations it submitted in the course of the review procedure, the issue of the precise composition of Community production was, in the present case, a complex and extensively discussed issue.

181    In the second place, according to settled case-law, the institutions enjoy a wide discretion in the sphere of measures to protect trade, and the powers of review enjoyed by the Courts of the European Union are restricted accordingly (see paragraph 71 above). That case law also applies to the determination of the issue of whether it is in the Community interest to impose anti-dumping measures, to which Article 21 of the basic regulation relates, and the balancing of the various interests concerned, since they necessarily involve complex economic assessments (see, to that effect, Case T‑1/07 Apache Footwear and Apache II Footwear v Council [2009], not published in the ECR, paragraphs 111 and 112).

182    According to the second sentence of Article 21 of the basic regulation, in examining the Community interest, the need to eliminate trade distorting effects of injurious dumping and to restore effective competition must be given special consideration. Furthermore, it is apparent from the third sentence of Article 21 that, where the other conditions for the imposition of an anti-dumping duty – namely dumping, injury and a causal link – have been fulfilled, the institutions may refrain from applying duties only where they can clearly conclude that such action is not in the Community interest. In other words, if it is found that injurious dumping exists, anti-dumping measures must be imposed unless the interests against such an action clearly outweigh the interest in eliminating trade distorting effects and restoring effective competition.

183    None of the applicant’s claims establish that the Council made a manifest error of assessment in the present case and, consequently, infringed Articles 9 and 21 of the basic regulation.

184    In that respect, first, as the Council correctly points out, those claims are not corroborated by any evidence. The applicant merely makes general assertions, without calling into question the Council’s factual analysis and findings in the contested regulation.

185    Secondly, although Osram was the sole Community producer who continued to support the review request, its CFL-i production represented 48% – almost half –of the total Community CFL-i production. Moreover, Osram was the only undertaking included in the definition of the Community industry for the purposes of the determination of injury. It was therefore natural that the institutions duly took into consideration the effect of the continued imposition of the anti-dumping measures at issue on the interests of that Community producer in their assessment of the Community interest. It cannot realistically be claimed that the institutions granted a disproportionate importance to Osram’s interests, particularly in view of the fact that the anti-dumping measures at issue were maintained for only one year, whereas, under the first sentence of the first subparagraph of Article 11(2) of Regulation No 1225/2009, they normally should have been maintained for a period of five years, precisely in order to take account of the interests of consumers and other Community producers.

186    Thirdly, the applicant has not put forward any argument or hard evidence capable of showing that the finding in recital 116 in the preamble to the contested regulation – according to which, after a period of one year, the likely negative effects of the anti-dumping measures at issue on consumers and other operators would be disproportionate to the benefits which Osram would derive from the measures – is manifestly wrong. In essence, the applicant merely complains that the institutions did not provide a more detailed explanation in relation to that finding, a complaint which is plainly incorrect. That finding, and the decision to limit the prolongation of the anti-dumping measures at issue for the short period of one year, can easily be understood in the light of the findings in the contested regulation concerning, in particular, the interests of consumers, the development of the product concerned on the Community market, and the interests of the other Community producers, read in conjunction with the findings concerning the effects of dumped imports on Osram.

187    Accordingly, on the one hand, it is clear from the part of the contested regulation concerned with the interests of consumers, and the evolution of the concerned product on the Community market, that it was very likely that the continuation of the measures at issue would impose a significant burden on consumers, particularly in the medium- and long‑term. That finding is expressly set out in recital 109 in the preamble to that regulation. Likewise, in recital 112 in the preamble to the contested regulation, the Council states that ‘it is clear that in the medium term, the impact on supply emanating from a continuation of measures may be more significant’. Moreover, in recital 114 in the preamble to the contested regulation, the Council concludes that ‘the continuation of measures will have a significant effect on consumers in terms of retail prices, and availability of supply, in particular in the medium to long-term’.

188    Similarly, in recital 100 in the preamble to the contested regulation, the Council indicates that it cannot be ruled out, ‘especially not in the medium term’, that the continuation of the anti-dumping measures at issue might also be contrary to the interests of two Community producers, GE Hungary and Sylvania.

189    On the other hand, the effects of dumped imports on Osram’s situation are examined in detail in section D of the contested regulation, which concerns the likelihood that injury would continue or recur and to which recital 96 in the preamble to that regulation refers. In particular, it is noted in recitals 88 to 90 that, in the event of expiration of the anti-dumping measures at issue, the dumped exports of Chinese CFL-i in the European Union would be likely to increase, which would lead to a considerable deterioration of Osram’s financial situation. Moreover, as regards the interest of that company, recital 97 states, that ‘[t]here is likelihood, should the measures be repealed, that the loss-making situation will continue’, that, ‘[t]he manufacturing plants currently employ several hundred staff’, and that ‘[t]herefore it would be in the interest of [Osram] that anti‑dumping measures against dumped imports from the country concerned be re‑imposed’. Lastly, in the conclusion of its analysis of the Community interest, the Council notes that, pursuant to Article 21(1) of the basic regulation, special consideration is to be given to the need to eliminate the trade distorting effects of injurious dumping. Referring to Osram, it states that ‘one producer, accounting for a substantial proportion of Community production, is suffering the effects of the injurious dumping established by the investigation’ (recital 115 in the preamble to the contested regulation). In recital 116 in the preamble to the contested regulation, the Council therefore concluded that it was appropriate to grant that producer a ‘further adjustment period’.

190    Lastly, it is clear from recitals 115 and 116 in the preamble to the contested regulation that the institutions balanced all of the relevant interests. They found that, overall, it was in the interest of the interested parties that the anti-dumping measures at issue not be continued for five years. The main reasons put forward in that respect were that the Community producers were heavily reliant on imports of CFL-I from China to meet the rapidly expanding demand, and that the continuation of the anti-dumping measures at issue would have a significant impact on consumer prices and, consequently, on the choices made by consumers. However, they concluded that, in the short-term, although the interests of consumers and Community producers other than Osram were liable to be affected by the continuation of the anti-dumping measures at issue, they did not outweigh those of Osram and the measures should therefore be maintained for a short period to allow Osram to make the necessary adjustments. After that period, whether in the medium- or long-term, the situation would be reversed, since the negative effects on consumers and other Community producers would be disproportionate to the benefits which Osram would derive from the measures.

191    It follows from the foregoing considerations that the first part of the fourth plea in law must be rejected.

 The second part, alleging breach of the obligation to state reasons

192    The applicant complains that the Council did not give a ‘very precise’ explanation of its conclusion that the anti-dumping measures at issue should be maintained for a further period of one year.

193    In the light of the principles referred to in paragraphs 86 and 87 above and the reasoning set out in paragraphs 186 to 190 above, it must be held that, in the contested regulation, sufficient reasons are stated for the finding criticised by the applicant.

194    It follows that the second part of the fourth plea, and therefore that plea as a whole, must be rejected.

 The fifth plea in law, concerning the definition of the Community industry

195    The applicant puts forward various arguments relating to the definition of the Community industry for the purpose of establishing standing under Article 5(4) of the basic regulation, which can be grouped into two parts. In the first part, the applicant alleges infringement of Article 4(1) and of Article 5(4) of the basic regulation, infringement of Article 5 of the anti-dumping agreement and a manifest error of assessment. In the second part, it alleges a breach of the obligation to state reasons.

196    The Council, supported by the Commission and by Osram, submits that this plea in law should be rejected.

197    Before examining the various arguments, it is appropriate to recall the applicable provisions of the basic regulation.

198    Article 4(1) of the basic regulation states, inter alia:

‘For the purposes of this Regulation, the term “Community industry” shall be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Community production of those products, except that:

(a)      when producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term “Community industry” may be interpreted as referring to the rest of the producers …’.

199    The first subparagraph of Article 5(1) of the basic regulation (now the first subparagraph of Article 5(1) of Regulation No 1225/2009) reads as follows:

‘Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Community industry.’

200    Article 5(4) of the basic regulation provides as follows:

‘An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Community producers of the like product, that the complaint has been made by or on behalf of the Community industry. The complaint shall be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated when Community producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the Community industry.’

201    Article 9(1) of the basic regulation (now Article 9(1) of Regulation No 1225/2009) provides that, ‘[w]here the complaint is withdrawn, the proceeding may be terminated unless such termination would not be in the Community interest’.

 The first part, alleging infringement of Article 4(1) and of Article 5(4) of the basic regulation, infringement of Article 5 of the anti-dumping agreement and a manifest error of assessment

202    The applicant alleges that the institutions infringed Article 4(1) and Article 5(4) of the basic regulation and Article 5 of the anti-dumping agreement, and made a manifest error of assessment by continuing the review procedure when Community producers representing more than 50% of total Community production were opposed to the anti-dumping measures at issue being maintained.

203    First of all, the applicant expresses surprise that the Commission, in the general disclosure document, and the Council, in the contested regulation, reached a conclusion diametrically opposite to that set out in the 2007 disclosure document, although no new fact had come to light.

204    Next, the applicant claims that, in the light of Article 5(4) of the basic regulation, there can be no doubt that 2CFL-i had no standing to represent the Community industry. It maintains that the Council could not rely on Article 9(1) of that regulation to justify the continuation of the review procedure, since, in particular, the request for a review had not been withdrawn. According to the applicant, the institutions actually sought to transform the investigation, which is an ex parte investigation, into an ex officio investigation. It claims that the institutions’ approach means that ‘[whenever] there is a Community interest [in] the imposition of anti-dumping duties then by definition the standing requirement of the applicant would be fulfilled’.

205    Furthermore, the applicant claims that GATT panels have held on several occasions that the failure to determine standing properly before initiating an investigation is a ‘fatal error which cannot be repaired retroactively in the course of the proceeding’. The applicant refers, in particular, to the special panel report ‘United States – Imposition of Anti-dumping Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden’ (ADP/47), published on 20 August 1990.

206    As is common ground between the parties, when the review procedure in question was initiated, the review had been requested ‘by or on behalf of Community producers’, as required by Article 11(2) of the basic regulation. That is to say, in accordance with Article 5(4) of that regulation, applicable to review procedures pursuant to Article 11(5) thereof, the request was expressly supported by Community producers accounting for over 25% of total production of the like product produced by the Community industry, and the collective output of those producers constituted more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to that request. The review had been requested by 2CFL-i, acting on behalf of Osram, and was expressly supported by Osram and by GE Hungary, which together accounted for over 50% of total Community CFL-i production. As regards the two other Community producers, Philips Poland and Sylvania, at that stage Philips Poland had expressed its opposition to the request for a review, whereas Sylvania had not adopted a position.

207    At that time, the Commission had all the more reason to conclude that the request for a review enjoyed sufficient support in accordance with Article 5(4) of the basic regulation because, as is apparent from the file and not in dispute between the parties, Osram alone accounted for over 25% of Community production and its output was greater than that of the only Community producer which opposed the request for a review, Philips Poland. At that stage, it was not necessary for the Commission to determine, having regard to Article 4(1)(a) of the basic regulation, whether or not Philips Poland, which was related to two exporting producers in China and imported from that country between 70% and 80% of the volumes of CFL-i which it sold on the Community market, ought to have been excluded from the Community production. Had that been the case, this would only have strengthened the abovementioned conclusion.

208    However, the situation changed several months later when, in the course of the review investigation, GE Hungary and then Sylvania informed the Commission that they now opposed the continuation of the anti-dumping measures at issue. This meant that the level of support for the request for a review, although still well above the 25% threshold referred to in Article 5(4) of the basic regulation, was, nevertheless, slightly below the 50% threshold in that provision. The only Community producer which continued to support the request, Osram, accounted for 48% of the total Community production of CFL-i, with the three other producers which opposed that request together accounting for the remaining 52%.

209    At the time, the institutions took the view that, in such a situation, where, in the course of the review investigation, the level of support for the review fell below one of the two thresholds referred to in Article 5(4) of the basic regulation, the review procedure had to be terminated, unless Article 9(1) of that regulation were applied by analogy. They considered that the requirements concerning the level of support for the original complaint or for a request for a review laid down by Article 5(4) of that regulation had to be fulfilled both at the stage of lodging the complaint or request as well as during the course of the investigation.

210    Consequently, given the very slight difference between the percentage of Community production supporting the request for a review and that opposing it, the Commission took the view that it was necessary to examine in more detail the application of Article 4(1)(a) of the basic regulation to the present case. In the Commission’s contention, the issue as to whether Osram, as the only Community producer continuing to support the request for a review, had standing under Article 5(4) of the basic regulation depended on whether any of the four Community producers had to be excluded from the Community production pursuant to Article 4(1)(a) of that regulation. That last issue was particularly acute for Philips Poland on account, in particular, of the very high level of its imports of CFL-i from China.

211    Thus, first of all, in the July 2007 disclosure document, following such an examination, the Commission took the view that the four Community producers had to be included in the Community production. In accordance with its practice set out in paragraph 209 above, it therefore concluded that it was appropriate to terminate the review procedure and repeal the anti-dumping measures at issue.

212    Subsequently, following, in particular, 2CFL-i’s observations on the 2007 July disclosure document, in which 2CFL-i set out in detail the reasons why, in its view, Philips Poland and GE Hungary ought to have been excluded from the Community production pursuant to Article 4(1)(a) of the basic regulation, the Commission continued its examination of that issue and reconsidered its position. As stated in point 49 of the general disclosure document, the Commission found that the results of its examination ‘showed a complex picture of a sector whose structure appear[ed] to be in flux’. That finding, which is not called in question by the parties in the present dispute, is borne out by the information in the annex to the general disclosure document. It is apparent from that annex, in particular, that, whereas Philips Poland imported from China a very significant proportion of the CFL-i (between 70% and 80% in terms of volume) which it sold on the Community market, the same was true of Sylvania (between 50% and 60% in terms of volume) and, to a lesser extent, GE Hungary (between 30% and 40% in terms of volume) and Osram (between 20% and 30% in terms of volume). It is also stated in that annex that Osram and GE Hungary were both related to one exporting producer in China, and that Philips Poland was related to two exporting producers in that country. In addition, the annex also makes clear that Philips Poland, GE Hungary and Sylvania sourced from outside the Community over half the components used in the manufacture of CFL-i in the Community. It is also apparent from that annex that the four Community producers formed part of multinational groups and either had their headquarters in the Community or were subsidiaries of a group having its headquarters in a third country, although they were competent to take all business decisions on production, imports and sales strategy concerning CFL-i for the Community market. Lastly, the annex shows that each of the four Community producers had significant centres of research and development based in the Community.

213    In the light of those factors, it was difficult for the Commission to determine with certainty which Community producer, if any, should be excluded from the Community production pursuant to Article 4(1)(a) of the basic regulation. Thus, in particular, although the very high percentage of imports of CFL-i from China by Philips Poland cast serious doubt on whether that company could be included in the Community production, the same doubts could also have applied to Sylvania, whose percentage of imports was also very high. Accordingly, as is apparent from point 50 of the general disclosure document, the Commission decided to leave open the question of whether the four Community producers all formed part of the Community production within the meaning of Article 4(1) of the basic regulation and, therefore, whether the request for a review still enjoyed the degree of support required by Article 5(4) of that regulation. The Commission took the view that, following GE Hungary’s withdrawal of its support for the request for a review and the opposition to that request expressed by Sylvania, the situation in question was analogous to that of the withdrawal of the complaint referred to in Article 9(1) of the basic regulation and, applying that provision by analogy, that it was in the Community interest to continue with the review procedure.

214    The Commission’s analysis set out in paragraphs 212 and 213 above was endorsed by the Council in the contested regulation, as is apparent from Articles 50 and 94 thereof and in annex.

215    The Court has held that Article 5(4) of the basic regulation does not place any obligation on the Commission to terminate an anti-dumping procedure in progress where the level of support for the complaint falls below a minimum threshold of 25% of Community production. That article concerns only the degree of support for the complaint necessary for the Commission to be able to initiate a procedure (Case T‑249/06 Interpipe Niko Tube and Interpipe NTRP v Council [2009] ECR II‑383, paragraph 139).

216    In support of its assessment in Interpipe Niko Tube and Interpipe NTRP v Council (paragraph 84 above), the Court expressly relied on the wording of Article 9(1) of the basic regulation, even though in the case giving rise to that judgment the complaint in question had not been withdrawn, as contemplated by that provision, but it was alleged that the level of support for that complaint had fallen in the course of the procedure. That approach is entirely logical since, if, under Article 9(1) of the basic regulation, the Commission is not under an obligation to terminate a procedure when a complaint is withdrawn, that must apply a fortiori when the degree of support for a complaint merely falls.

217    Since Articles 5(4) and 9(1) of the basic regulation are applicable to review procedures, pursuant to Article 11(5) of that regulation, the principles set out in paragraphs 215 and 216 above also apply to the present case. It follows that the institutions were perfectly entitled to continue the review procedure notwithstanding the fact that it was possible that the 50% threshold referred to in Article 5(4) of the basic regulation was no longer met.

218    As regards the applicant’s argument concerning the fact that the Commission, in the general disclosure document, and the Council, in the contested regulation, reached a conclusion opposite to that set out in the July 2007 disclosure document, it must be rejected for the same reasons as set out in paragraph 180 above.

219    Moreover, the applicant’s claim that the institutions sought to transform the investigation, which should be an ex parte investigation, into an ex officio investigation, is wholly unfounded. It is undisputable that the investigation in question was opened ex parte, since it was initiated following a sufficiently supported complaint in accordance with Article 5(4) of the basic regulation (see paragraphs 206 and 207 above). The fact that the institutions decided to pursue the review procedure ex officio cannot be criticised in the light of the findings set out in paragraphs 215 to 217 above.

220    Likewise, since the standing requirement was clearly satisfied at the date of the initiation of the review procedure, the applicant can neither invoke an infringement of Article 25 of the anti-dumping agreement, which article concerns, inter alia, the conditions governing the initiation of anti-dumping proceedings, nor rely on the special panel report ‘United States – Imposition of Anti-dumping Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden’.

221    Lastly, contrary to the applicant’s argument, the approach taken by the institutions in the present case does not mean that the standing requirement under Article 5(4) of the basic regulation is automatically satisfied once it is in the Community’s interest that anti-dumping measures be imposed. As already pointed out in paragraphs 215 and 216 above, it is necessary that the review request have the degree of support required by Article 5(4) of the basic regulation at the time the Commission decides to initiate the review procedure. As found in paragraphs 206 and 207 above, that was undoubtedly so in the present case. Strictly speaking, it was not even necessary for the institutions to argue that the continuation of the review procedure was in the Community interest, which they did in the present case, as is apparent from point 50 of the general disclosure document and from recitals 50 and 94 in the preamble to the contested regulation. Article 9(1) of the basic regulation expressly obliges the institutions to take account of the Community interest only if they envisage terminating the procedure further to the withdrawal of the complaint. Therefore, it is apparent from that provision that, where a complaint is withdrawn, the institutions have the option – but not the obligation – to terminate the procedure, although they may not do so if it would be contrary to the Community interest.

222    It follows that the first part of the fifth plea in law must be rejected as unfounded.

 The second part, alleging infringement of the obligation to state reasons

223    First, the applicant takes issue with the Council for having failed to explain in the contested regulation why, and on the basis of what legal reasoning, it considered that Osram still had standing in spite of the fact the Community producers representing more than 50% of total Community production were opposed to the maintenance of the anti-dumping measures at issue. Secondly, it claims that the Council did not explain its reasons for taking the view that Article 9(1) of the basic regulation was applicable in the present case. Thirdly, the applicant takes issue with the Council for failing to explain why, in the contested regulation, it arrived at a conclusion diametrically opposite to that reached by the Commission in the July 2007 disclosure document.

224    None of the applicant’s complaints are well founded.

225    First, it is clear from a reading of the contested regulation (recitals 50 and 94) in conjunction with the general disclosure document (paragraph 50) – which sheds light on the background to the adoption of that regulation – that the institutions considered, following the opposition of GE Hungary and Sylvania to the review request in the course of the procedure, that the situation in the present case was analogous to that referred to in Article 9(1) of the basic regulation and, applying that provision by analogy, that it was in the Community’s interest to continue the review procedure. It follows from, inter alia, recitals 50 and 94 in the preamble to the contested regulation that the institutions were of the view that if Article 9(1) of the basic regulation applies when the complaint is withdrawn, it must a fortiori also apply when the degree of support for a complaint merely falls. Furthermore, it is clear from the applicant’s line of argument in support of the present action that it fully understood the above considerations.

226    In addition, contrary to the applicant’s contentions, the fact that the Council did not explain, in the contested regulation, why it had decided to depart from the Commission’s conclusion in the July 2007 disclosure document cannot, in itself, amount to a failure to provide reasons, because such a document is simply an intermediate measure in which the Commission sets out merely a provisional position (see, to that effect, Case T‑206/07 Foshan Shunde Yongjian Housewares & Hardware v Council [2008] ECR II‑1, paragraph 52).

227    It follows that the second part of the fifth plea in law must be rejected as unfounded, as must the fifth plea in law in its entirety.

228    In the light of the foregoing considerations, the action must be rejected in its entirety, without it being necessary to examine the application for measures of organisation of procedure or inquiry submitted by the applicant.

 Costs

229    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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council and by Osram, in accordance with the forms of order sought by those parties.

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

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Hangzhou Duralamp Electronics Co., Ltd to bear its own costs and to pay those incurred by the Council of the European Union and by Osram GmbH;

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

Papasavvas

O’Higgins

Gratsias

Delivered in open court in Luxembourg on 11 July 2013.

[Signatures]

Table of contents


Background to the dispute

Procedure and forms of order sought by the parties

Law

The first plea in law, concerning the determination of the like product

The first part, alleging breach of Article 1(2) and (4) of the basic regulation and of Article 2(1) and (6) of the anti-dumping agreement

The second part, alleging breach of the obligation to state reasons

The second plea in law, concerning the data used to evaluate the likelihood that injury would continue or recur

The first part, alleging breach of Articles 2 and 3 of the basic regulation and a manifest error of assessment

The second part, alleging breach of the anti-dumping agreement

The third part, alleging breach of the obligation to state reasons

The fourth part, alleging breach of the applicant’s rights of defence

The fifth part, alleging breach of internal guideline No 4/2003

The third plea in law, concerning the choice of the Republic of Korea as the analogue country

The first part, alleging infringement of the ‘principles set out in the basic regulation’ and of Article 2 of the anti-dumping agreement, as well as a manifest error of assessment

The second part, alleging infringement of Article 2(7)(a) of the basic regulation and a manifest error of assessment

The third part, alleging infringement of the applicant’s rights of defence

The fourth part, alleging infringement of the obligation to state reasons

The fourth plea in law, concerning the Community interest

The first part, alleging infringement of Articles 7, 9 and 21 of the basic regulation and a manifest error of assessment

The second part, alleging breach of the obligation to state reasons

The fifth plea in law, concerning the definition of the Community industry

The first part, alleging infringement of Article 4(1) and of Article 5(4) of the basic regulation, infringement of Article 5 of the anti-dumping agreement and a manifest error of assessment

The second part, alleging infringement of the obligation to state reasons

Costs


* Language of the case: English.