Language of document : ECLI:EU:C:2016:712

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 22 September 2016 (1)

Joined Cases C247/15 P, C253/15 P and C259/15 P

Maxcom Ltd (C247/15 P)

European Commission (C253/15 P)

Council of the European Union (C259/15 P)

v

Chin Haur Indonesia, PT

(Appeals — Commercial policy — Dumping — Implementing Regulation (EU) No 501/2013 — Imports of bicycles consigned from Indonesia — Extension to such imports of the definitive anti-dumping duty imposed on imports of bicycles originating in China — Regulation (EC) No 1225/2009 — Articles 13 and 18 — Circumvention — Non-cooperation of some of the producers/exporters investigated — Evidence of circumvention — Body of consistent evidence — Inadequate statement of reasons — Breach of procedural rights)






1.        This Opinion relates to three appeals brought by Maxcom Ltd (‘Maxcom’), the Council of the European Union and the European Commission. The appellants ask the Court of Justice to set aside the judgment of the General Court of 19 March 2015 in Chin Haur Indonesia v Council (2) (‘the judgment under appeal’), in which the General Court annulled Article 1(1) and (3) of Council Implementing Regulation (EU) No 501/2013, (3) (‘the contested regulation’) to the extent that it concerns the company Chin Haur Indonesia, PT (‘Chin Haur’), the applicant in the action before the General Court.

2.        These three joined cases afford the Court a first opportunity (4) to rule, in an appeal, on the EU rules on the circumvention of anti-dumping duties. Those rules, contained in Article 13 of Regulation (EC) No 1225/2009 (‘the basic regulation’) (5) enable the institutions, in certain circumstances, to extend anti-dumping duties that they have imposed on imports of a product from a third country to imports of similar products from another country, in order to prevent the circumvention of the original anti-dumping measures.

3.        More specifically, the Court will have an opportunity to provide further clarification of the evidential requirements which the Council and the Commission (together, ‘the institutions’) must satisfy in order to establish the existence of circumvention. The case-law already offers some guidance in relation to the burden of proof and the standard of proof. However, that guidance was provided by the Court in cases with a particular factual context wherein the institutions were met with the refusal of all the relevant parties to cooperate in the investigation into the existence of circumvention, that investigation being reliant upon the voluntary cooperation of the producers/exporters under investigation.

4.        In the present cases, the Court is called upon to clarify, in the light of that case-law, the evidential requirements which the institutions must satisfy in order to establish the existence of circumvention in a factual context that is quite different, that is to say, where only some of the producers/exporters under investigation, rather than all of the parties concerned, refuse to cooperate.

I –  Legal framework

5.        Although the issue of circumvention has been discussed in the context of WTO-GATT negotiations, it has not proved possible to reach agreement. Consequently, the 1994 Anti-dumping Code (6) contains no provisions on the subject. (7) In those circumstances, the European Union has unilaterally adopted its own anti-circumvention rules. (8)

6.        The third sentence of Article 13(1) of the basic regulation defines circumvention as ‘a change in the pattern of trade between third countries and the [Union] or between individual companies in the country subject to measures and the [Union], which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2’.

7.        The second subparagraph of Article 13(1) of the basic regulation contains a non-exhaustive list of the practices, processes and work referred to in the first subparagraph. These include ‘the consignment of the product subject to measures via third countries’ and, ‘in the circumstances indicated in paragraph 2, the assembly of parts by an assembly operation in the [Union] or a third country’. Article 13(2) of the basic regulation sets out the three cumulative conditions under which an assembly operation in the Union or a third country is to be regarded as circumventing existing anti-dumping measures. (9)

8.        In accordance with Article 13(3) of the basic regulation, it is for the Commission to initiate, by regulation, an investigation, either of its own initiative or at the request of a Member State or any interested party, on the basis of sufficient evidence regarding the factors set out in Article 13(1). If the facts as finally ascertained justify the extension of anti-dumping measures, this is done by the Council, acting on a proposal from the Commission, after consultation of the Advisory Committee.

9.        Article 13(4) of the basic regulation provides for the possibility of granting exemption from anti-circumvention measures to certain companies. It provides that ‘imports shall not be subject to … measures where they are traded by companies which benefit from exemptions. Requests for exemptions duly supported by evidence shall be submitted within the time-limits established in the Commission regulation initiating the investigation. Where the circumventing practice, process or work takes place outside the [Union], exemptions may be granted to producers of the product concerned that can show that they are not related to any producer subject to the measures and that are found not to be engaged in circumvention practices as defined in paragraphs 1 and 2 of this article. … These exemptions shall be granted by decision of the Commission … or decision of the Council imposing measures and shall remain valid for the period and under the conditions set down therein. … Exemptions may also be granted after the conclusion of the investigation leading to the extension of the measures.’

10.      Article 18 of the basic regulation, entitled ‘Non-cooperation’, provides:

‘1.      In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limits provided in this regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. …

3.      Where the information submitted by an interested party is not ideal in all respects it should nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability.

6.      If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than if it had cooperated.’

II –  The background to the disputes and the contested regulation

11.      The background to the disputes is set out in detail in paragraphs 1 to 28 of the judgment under appeal, to which I would refer. For the purposes of the present proceedings, I shall confine myself to pointing out that, in 1993, the European Community had imposed an anti-dumping duty on imports into the Community of bicycles originating in the People’s Republic of China. That duty was later re-examined on a number of occasions and was ultimately maintained, at a rate of 48.5%, by Implementing Regulation (EU) No 990/2011. (10)

12.      In 2012, following a complaint, the Commission initiated an investigation into the possible circumvention of the anti-dumping measures imposed by Regulation No 990/2011 by imports of bicycles consigned, inter alia, from Indonesia. (11) In the course of that investigation, Chin Haur submitted a request for exemption in accordance with Article 13(4) of the basic regulation. The Commission undertook a verification visit at Chin Haur’s premises in Indonesia and ultimately rejected the company’s request for exemption because of the unreliability of the data which it had submitted. (12)

13.      On 29 May 2013, the Council adopted the contested regulation.

14.      In that regulation, the Council first of all stated that, of the four Indonesian companies that had submitted a request for exemption, which together accounted for 91% of exports to the Union from Indonesia, three were considered to have cooperated, while the data submitted by the fourth, Chin Haur, was unverifiable and unreliable and was therefore disregarded. (13) Accordingly, the Council stated, in recital 33 of the regulation, that the findings with regard to Chin Haur were based on the facts available, in accordance with Article 18 of the basic regulation.

15.      Next, the Council found that all the conditions for reaching a finding of circumvention, in accordance with Article 13(1) of the basic regulation, were satisfied. (14)

16.      As regards, more specifically, circumvention practices in Indonesia, the Council first of all examined the existence of transhipment operations. In this connection, recitals 61 to 64 of the contested regulation state the following:

‘(61)      For three out of the four initially cooperating companies, the investigation did not reveal any transhipment practices.

(62)      As concerns the fourth company, [China Haur], as stated in recitals 29 to 33 above, application of Article 18 of the basic regulation was warranted. The investigation revealed that the company did not own sufficient equipment to justify the volumes of exports into the Union in the [reporting period] and, in the absence of any other justification, it can be concluded that the company was involved in circumvention practices via transhipment.

(63)      For the remaining exports to the Union there was no cooperation …

(64)      Therefore, in light of the change of the pattern of trade concluded in recital 58 above between Indonesia and the Union within the meaning of Article 13(1) of the basic regulation, the findings [concerning] one Indonesian company as stated in recital [62] above, and the fact that not all Indonesian producers/exporters came forward and cooperated, the existence of transhipment of Chinese-origin products via Indonesia is confirmed.’

17.      The Council went on to state that the existence of assembly operations within the meaning of Article 13(2) of the basic regulation, in Indonesia, had not been established. (15)

18.      In those circumstances, the Council concluded that there was circumvention by means of transhipment via Indonesia and extended the definitive anti-dumping duty provided for in Implementing Regulation No 990/2011 to imports of bicycles consigned from Indonesia. (16) In addition, because of its finding that Chin Haur had failed to cooperate genuinely, the Council refused to grant that company an exemption under Article 13(4) of the basic regulation. (17)

III –  The procedure before the General Court and the judgment under appeal

19.      On 9 August 2013, Chin Haur brought an action before the General Court for annulment of Article 1(1) and (3) of the contested regulation.

20.      On 8 October 2013, the General Court granted Chin Haur’s application for the case to be adjudicated under the expedited procedure. (18)

21.      By order of 11 November 2013, the President of the Seventh Chamber of the General Court granted the Commission’s application for leave to intervene in support of the form of order sought by the Council. However, the Commission was not allowed to submit a statement in intervention. (19) On 25 June 2014, with the case being dealt with under the expedited procedure, the Commission applied for leave to submit a statement in intervention, as a measure of organisation of the procedure, (20) but the General Court rejected its application.

22.      Maxcom was granted leave to intervene by order of 16 July 2014.

23.      Chin Haur put forward three pleas in law. The first plea alleged infringement of Articles 13(1) and 18(1) of the basic regulation. By the first part of that plea, Chin Haur took issue with the Council’s finding that a change in the pattern of trade had taken place. By the second part of the first plea, Chin Haur took issue with the Council’s conclusion, in recital 62 of the contested regulation, that it had engaged in transhipment operations. The second plea in law alleged infringement of Article 18 of the basic regulation, of the principle of proportionality and of the obligation to state reasons. It was directed against the Council’s finding that Chin Haur had failed to cooperate. The third plea in law alleged infringement of Article 13(1) of the basic regulation and of the principle of equal treatment. It related to the Council’s finding of dumping.

24.      In the judgment under appeal, the General Court dismissed the first part of the first plea and the second and third pleas as unfounded. However, it upheld the second part of the first plea and, in particular, the first complaint therein, by which Chin Haur disputed the conclusion, set out in recital 62 of the contested regulation, that its production capacity was insufficient to justify its volumes of exports to the European Union.

25.      As regards that issue, the General Court first of all analysed, in paragraphs 81 to 94 of the judgment under appeal, the information that Chin Haur had provided during the investigation and held that that information could not prove that the company was indeed an Indonesian exporter or that it met the criteria laid down in Article 13(2) of the basic regulation.

26.      Secondly, in paragraphs 95 to 103 of the judgment under appeal, the General Court examined the information that had been available to the Council and from which it had concluded that Chin Haur had engaged in transhipment operations. On completing that analysis, the General Court held in paragraph 104 of the judgment under appeal that, on the basis of that information, the Council had not had sufficient evidence to substantiate the conclusion which it expressed in recital 62 of the contested regulation. Furthermore, in paragraph 105 of the judgment under appeal, the General Court held that the fact that Chin Haur had been unable to show that it was an Indonesian producer or that it satisfied Article 13(2) of the basic regulation did not enable the Council to conclude by default that the company was engaged in transhipment, such a power being apparent neither from the basic regulation nor the case-law. The General Court therefore upheld the second part of the first plea, without examining the other two complaints put forward by Chin Haur. Consequently, it annulled Article 1(1) and (3) of the contested regulation ‘to the extent that it concerns’ Chin Haur.

IV –  The forms of order sought by the parties

27.      By their appeals, Maxcom, the Council and the Commission ask the Court to set aside the judgment under appeal, to dismiss the action at first instance and to order Chin Haur to pay the costs. In the alternative, the Council and the Commission request that the case be referred back to the General Court for reconsideration and that the costs of the proceedings at first instance and on appeal be reserved.

28.      Chin Haur asks the Court to dismiss the appeals in their entirety and order Maxcom, the Council and the Commission to pay the costs. In the alternative, if the Court were to set aside the judgment under appeal, Chin Haur asks the Court to rule on its action at first instance, to uphold the other two complaints in the second part of the first plea that it put forward before the General Court, and to annul in part Article 1(1) and (3) of the contested regulation in so far as those provisions extend to it the anti-dumping duty imposed on imports of bicycles originating in China and reject its request for exemption.

V –  Assessment

29.      Maxcom raises two grounds of appeal against the judgment of the General Court, the first as a principal ground of appeal and the second as an alternative ground. The Council puts forward two grounds of appeal and the Commission three. The various grounds of appeal put forward in the three appeals overlap to a large extent and may be rearranged in three groups.

30.      First of all, Maxcom, the Council and the Commission argue that the General Court made various errors of law in its application of Article 13(1) of the basic regulation. (21) Secondly, the Council and the Commission allege that the judgment under appeal is vitiated by an inadequate statement of reasons and by contradictory reasoning. In this same context, the Council also argues that the General Court distorted the facts. (22) Thirdly, the Commission maintains that the General Court infringed its procedural rights. (23)

A –    The grounds of appeal alleging incorrect application of Article 13(1) of the basic regulation

1.      Arguments of the parties

31.      By the first group of grounds of appeal, Maxcom, the Council and the Commission submit, in substance, that the reasoning set out in paragraphs 95 to 105 of the judgment under appeal, on the basis of which the General Court annulled the contested regulation, is vitiated by various errors of law in the application of Article 13(1) of the basic regulation.

32.      In the first place, Maxcom complains that the General Court manifestly applied that provision incorrectly, in that it held that the Council could not conclude, on the basis of the information available to it, that Chin Haur had been involved in transhipment operations.

33.      According to Maxcom, first, the General Court’s reasoning failed to take account of the fact that it was common ground that Chin Haur imported bicycle parts from a Chinese manufacturer related to Chin Haur itself and that it exported bicycles to the European Union. In those circumstances, and having noted that Chin Haur had been unable to prove that it was a genuine Indonesian bicycle manufacturer or that it carried out assembly operations not falling foul of the thresholds fixed in Article 13(2) of the basic regulation, the General Court ought to have classified Chin Haur’s import-export activities as transhipment.

34.      Secondly, according to Maxcom, the information upon which the General Court relied, in paragraphs 95 to 102 of the judgment under appeal, in reaching its conclusion that the Council had not had sufficient evidence to find that Chin Haur was involved in transhipment operations, is not relevant. The essential issue in this case is Chin Haur’s failure to cooperate, which prevented the Commission from gaining a full understanding of the company’s activities, with the result that findings in relation to it had to be made in accordance with Article 18(1) of the basic regulation. The judgment under appeal rewarded Chin Haur for not cooperating and runs counter to both the objective of the basic regulation and the case-law. Moreover, the institutions are not required specifically to prove the existence of precise transhipment practices: they must prove only that the change in the pattern of trade is the result of circumvention. It follows that the annulment of the contested regulation on the ground that the institutions had not had sufficient evidence to conclude that transhipment practices had been engaged in constitutes a manifest error in law.

35.      In the second place, the Council and the Commission maintain that in the judgment under appeal the General Court proceeded on the implied premiss that Article 13(1) of the basic regulation requires the institutions to demonstrate that every producer/exporter in the country that is the subject of the investigation engages in transhipment practices. That interpretation is incorrect. First, it runs counter to the obligation to assess the conditions referred to in Article 13(1) of the basic regulation at country level, not at the level of individual exporters. Secondly, it would render Article 13(4) of the basic regulation devoid of purpose. Thirdly, it confuses the concept of a ‘circumvention practice’ with one of its manifestations, namely transhipment. The institutions, however, are not required specifically to prove the existence of any given circumvention practice. Fourthly, the General Court applied contradictory interpretations of the concept of a circumvention practice in its assessments of the various pleas in law.

36.      In the third place, Maxcom, the Council and the Commission maintain that, even if the Council erred in finding that Chin Haur was involved in transhipment operations, that would not in itself be sufficient for the contested regulation to be annulled. Indeed, the finding, in recital 64 of the contested regulation, that transhipment via Indonesia was taking place was not based solely on the finding with regard to Chin Haur. It was also based on the fact that manufacturers accounting for 9% of exports from Indonesia to the Union had not cooperated in the investigation at all and that, ultimately, cooperation had been obtained from Chin Haur, which accounted for 42% of exports from Indonesia to the Union. Consequently, even if it had erred in so far as concerns transhipment by Chin Haur, the Council was entitled to conclude that transhipment had been taking place via Indonesia, and to reach that conclusion, as required by the case-law, on the basis of a body of consistent evidence relating to other Indonesian producers/exporters derived from the facts available.

37.      Chin Haur contests all the appellants’ arguments. It submits, as a preliminary point, that the arguments directed against the General Court’s conclusion that there was insufficient evidence that Chin Haur was engaging in transhipment operations relate to the assessment of the facts, and are therefore inadmissible. Chin Haur then submits, first, that the matter at issue essentially relates to the burden of proving the existence of circumvention and, in particular, transhipment. The General Court confined itself to stating that that burden of proof rested on the institutions and that, in this case, they had not discharged it. The distinction drawn between assessing circumvention at country level and assessing circumvention at the level of individual exporters is not supported by the wording of the basic regulation and is irrelevant in the present case, for the Council itself merged those two criteria in the contested regulation. Moreover, at no point did the General Court intimate that the institutions must positively establish that each individual producer/exporter is engaging in transhipment operations. The appellants are confusing the burden of proof, which rests on the institutions, with the standard of proof, which, in accordance with Article 18 of the basic regulation, may be lower in the event of non-cooperation. However, by contrast with the situation which gave rise to the case of Simon, Evers & Co., (24) the institutions did not in this instance have a body of consistent evidence relating to the existence of transhipment, and some undertakings did cooperate in the investigation.

38.      Secondly, in so far as concerns the complaint that the General Court’s findings were not sufficient for the contested regulation to be annulled, Chin Haur maintains that nowhere in the contested regulation did the Council state that Indonesian manufacturers other than itself were engaging in transhipment operations. The only observation made in the contested regulation was that some manufacturers, accounting for a small proportion of the total production, had not cooperated. However, nothing in the case-law of the Court of Justice suggests that the institutions might be allowed simply to infer the existence of transhipment from the mere fact that individual producers/exporters have not cooperated.

2.      Assessment

(a)    Admissibility

39.      In so far as concerns the objection of inadmissibility raised by Chin Haur as a preliminary point (see paragraph 37 above), it must be recalled that, according to the case-law, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence which it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them. (25)

40.      Consequently, in so far as the appellants take issue with the General Court’s assessments of the factual evidence, including those set out in paragraphs 96 to 102 of the judgment under appeal, their complaints must be held to be inadmissible.

41.      However, as Chin Haur itself has pointed out, in the context of the complaints concerning errors in the application of Article 13(1) of the basic regulation, the present appeals essentially raise questions concerning the burden of proof and the standard of proof that must be met in order to establish the existence of circumvention. Accordingly, inasmuch as those complaints are directed not against the General Court’s findings of fact or its examination of the evidence, but rather against its failure to have regard to the rules of evidence, which, according to the case-law, is a question of law, (26) they must be held to be admissible.

(b)    The European Union rules on circumvention, in light of the case-law

42.      Before examining the complaints concerning infringement of Article 13(1) of the basic regulation, I think it appropriate briefly to analyse the European Union rules on circumvention, in the light of the relevant case-law. The objective of those rules is to ensure the effectiveness of original anti-dumping measures and to prevent their being circumvented. (27)

43.      It is clear from the definition in the third sentence of Article 13(1) of the basic regulation, to which I referred in point 6 of this Opinion, that, in order for circumvention to be established, four conditions must be fulfilled: (i) there must be a change in the pattern of trade between the third country in question and the Union, (ii) that change must stem from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, (iii) there must be evidence of injury, and (iv) there must be evidence of dumping. In the present appeals, it is only the second of these constituent elements of circumvention that is in dispute, the other three having been definitively proven.

44.      In its judgment in Simon, Evers & Co., (28) the Court of Justice pointed out that the definition of ‘circumvention’ is formulated in very general terms that leave considerable freedom of action to the institutions. (29) Acknowledging that freedom of action is, moreover, consistent with the broad discretion which, according to consistent case-law, the institutions generally enjoy in the sphere of the common commercial policy, and most particularly in the realm of measures to protect trade, because of the complexity of the economic, political and legal situations which they have to examine. (30) Furthermore, it implies that judicial review is limited to verifying whether the procedural rules have been complied with, whether the facts on which the decision at issue is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. (31)

45.      The Court also stated in its judgment in Simon, Evers & Co., (32) that it was clear from the basic regulation, and Article 13(3) thereof in particular, that the burden of proving the existence of circumvention rests on the institutions. (33) When deciding to extend to a particular country anti-dumping duties which they have imposed on imports from another country, the institutions have the burden of proving that all the constituent elements of a circumvention of those duties, as mentioned in the third sentence of Article 13(1) of the basic regulation, are present. (34)

46.      Once the institutions have proved that the four conditions are satisfied and the involvement of the country under investigation in circumvention has thus been proven, the anti-dumping duties initially imposed may be extended to all imports from that country.

47.      A producer/exporter of the product concerned established in the country in question may, in accordance with Article 13(4) of the basic regulation, be granted individual exemption from anti-circumvention duties if it submits, within the time limit established, a request for exemption duly supported by evidence and — when the circumvention practices take place outside the Union — if two conditions are fulfilled: first, the producer/exporter must be able to show that it is not related to any producer subject to the measures and, secondly, it must be found that the producer/exporter has not engaged in circumvention practices. (35)

48.      It is thus clear from the logic and structure of the EU rules on circumvention that the purpose of verifying whether the four conditions laid down in Article 13(1) of the basic regulation are satisfied is to prove the circumvention of the anti-dumping duties originally imposed at the level of the country concerned by the anti-circumvention investigation. By contrast, in the analysis carried out under Article 13(4) of the basic regulation, the specific situation of individual producers/exporters is taken into consideration. That arrangement of the anti-circumvention rules does not however mean that findings with regard to one or more individual producers/exporters cannot be used to substantiate a conclusion relating to the presence of the constituent elements of circumvention, in particular the existence of circumvention practices within the meaning of Article 13(1) of the basic regulation, as indeed they were in this present case. (36)

49.      In its case-law, and in particular in its judgments in Simon, Evers & Co. (37) and APEX, (38) the Court has also given guidance on the standard of proof that must be met in order to establish the presence of the constituent elements of circumvention, in accordance with Article 13(1) of the basic regulation. In this connection, the Court has emphasised that, in the context of a circumvention investigation, the institutions have not the power to require the producers/exporters under investigation to participate in the investigation or to provide information. The institutions are therefore reliant on the voluntary cooperation of the parties concerned to provide them with the necessary information. That is why the basic regulation provides, in Article 18(1) and (6), that, where there is a lack of cooperation, the Commission may make findings ‘on the basis of the facts available’ and may see to it that the result for a party that has not cooperated or has cooperated only partially is ‘less favourable … than if it had cooperated’. (39)

50.      The Court expressly inferred from that that, where there is a failure to cooperate, the provisions of Article 18(1) and (6) of the basic regulation are clearly intended to lessen the burden of proving circumvention that rests on the institutions. (40)

51.      The Court has clarified that it was not the intention of the EU legislature to establish a legal presumption making it possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, and thereby alleviating the EU institutions from any requirement to adduce proof. 

52.      However, given that it is possible to make findings, even definitive findings, on the basis of the available facts and to treat a party that does not cooperate or does not cooperate fully less favourably than if it had cooperated, the Court has stated that, where there is a failure to cooperate, the institutions are authorised to act on the basis of a body of consistent evidence showing the existence of circumvention for the purposes of Article 13(1) of the basic regulation. (41)

53.      The purpose of that lessening of the burden of proof is to ensure that the effectiveness of EU trade-defence measures is not undermined whenever the institutions are faced with non-cooperation in the context of an investigation into possible circumvention. (42)

54.      I must nevertheless point out in this connection that the judgments in Simon, Evers & Co. and APEX concerned anti-circumvention investigations in which there was a lack of cooperation on the part of all the parties concerned. (43) The investigation at issue in the present appeals differs, in that some of the undertakings concerned did cooperate, as I stated in point 14 above, and were found not to have engaged in circumvention practices. Given those circumstances, a question arises as to the extent to which the case-law principles enunciated in those two judgments relating to the standard of proof that must be met in order to establish circumvention apply in a case the factual context of which is quite different.

(c)    The complaints alleging infringement of Article 13(1) of the basic regulation

i)      Preliminary observations

55.      As I have already pointed out, the complaints alleging infringement of Article 13(1) of the basic regulation call into question only the analysis of the second constituent element of circumvention, described in points 6 and 43 of this Opinion, which is the requirement that the change in the pattern of trade must stem from circumvention practices for which there is insufficient due cause or economic justification other than the imposition of the anti-dumping duty. However, before those complaints are analysed, three preliminary observations are called for.

56.      First, I would point out that, as is clear from point 16 above, the Council’s conclusion regarding the practice of the transhipment of Chinese bicycles via Indonesia (recital 64 of the contested regulation) was based on three elements, one of which was its finding that Chin Haur was involved in transhipment operations (the finding expressed in recital 62 of the contested regulation).

57.      That being so, it must be observed that, in the contested regulation, a finding with regard to one individual producer (Chin Haur) became one of the elements on which the Council based its conclusion that circumvention practices were being engaged in at country level (that country being Indonesia). In other words, as Chin Haur has rightly emphasised, in the contested regulation, in order to prove the presence of the second constituent element of circumvention, the Council in a manner of speaking merged the analysis at country level and the analysis at individual level to which I referred in point 48 above.

58.      Secondly, as explained in points 24 to 26 of this Opinion, by the judgment under appeal, the General Court partly annulled the contested regulation, ‘to the extent that it concerns’ Chin Haur, upholding its first plea in law and finding the conclusion regarding that company, set out in recital 62 of the contested regulation, insufficiently proven. (44)

59.      In the relevant paragraphs of the judgment under appeal the General Court did not expressly indicate which provisions of the basic regulation it considered the Council to have infringed. However, since the first plea in law in the action before it alleged infringement of Articles 13(1) and 18(1) of the basic regulation, it is obvious that the General Court annulled the contested regulation on the ground that it infringed those two provisions.

60.      An annulment founded on infringement of Article 13(1) of the basic regulation implies that the finding concerning the presence of one of the constituent elements of circumvention, as stipulated in that provision, was mistaken. It follows that, in the judgment under appeal, even if it did not expressly assert this to be the case, the General Court held that the conclusion reached in the contested regulation concerning the second constituent element of circumvention was mistaken.

61.      The conclusion concerning the presence of this second constituent element, or more precisely the conclusion concerning the existence of circumvention practices at national level in Indonesia, is set out in recital 64 of the contested regulation. However, the General Court found an error in the finding concerning Chin Haur’s involvement in transhipment operations (set out in recital 62 of the contested regulation).

62.      That being so, basing its annulment of the contested regulation on the infringement of Article 13(1) of the basic regulation, the General Court necessarily concluded, albeit implicitly, that the error which it found in the finding with regard to Chin Haur irremediably invalidated the conclusion relating to the second constituent element of circumvention, that is to say, the conclusion concerning the existence of circumvention practices via Indonesia. In other words, the General Court concluded that the error which it found in recital 62 of the contested regulation rendered null and void the general conclusion set out in recital 64 of the regulation.

63.      Thirdly, it is common ground that Chin Haur provided information that was unverifiable and unreliable and that, consequently, it was rightly regarded as not having genuinely cooperated in the investigation. Accordingly, the conclusions regarding it were rightly based, in the contested regulation, on the facts available, in accordance with Article 18(1) of the contested regulation. (45)

ii)    The complaints relating to the General Court’s findings with regard to Chin Haur’s involvement in transhipment operations

64.      I may now address the appellants’ argument that, in paragraphs 95 to 105 of the judgment under appeal, the General Court applied Article 13(1) of the basic regulation incorrectly.

65.      In those paragraphs of the judgment under appeal, the General Court held that, on the basis of the information in the file, the Council had insufficient evidence from which to conclude, in recital 62 of the contested regulation, that Chin Haur had insufficient production capacity for the volumes exported to the European Union or, therefore, that it was involved in transhipment operations. To support that conclusion, the General Court first of all analysed, in paragraphs 96 to 101 of the judgment under appeal, the findings of the Commission’s agents during the verification visit to Chin Haur’s premises, concluding that none of those findings, either individually or taken together, pointed convincingly to the existence of transhipment. Secondly, in paragraph 102, the General Court noted that most of the findings stated in the mission report of the Commission’s agents, on which the Council had relied, were disputed by Chin Haur and that other photographs to which the Council had referred gave no indication of the existence of transhipment operations. Thirdly, in paragraph 103, after noting that the Council had also based its reasoning on the fact that Chin Haur had failed to show that it was indeed an Indonesian producer of bicycles or that it met the criteria laid down in Article 13(2) of the basic regulation, the General Court held that it could not follow from that finding in itself that Chin Haur had engaged in transhipment operations.

–       The matters to be proved and the standard of proof when some of the producers/exporters concerned do not cooperate in an anti-circumvention investigation

66.      The arguments put forward by the appellants raise, first of all, the question of what matters the institutions must prove and what standard of proof they must meet in order to be able to find that the second constituent element of circumvention, as identified in points 43 and 55 above, is present in an investigation in which it is not all of the producers/exporters concerned that fail to cooperate, but only some of them.

67.      More specifically, are the institutions required to adduce evidence of particular circumvention practices, such as those mentioned by way of example in the second subparagraph of Article 13(1) of the basic regulation, or is it sufficient for them to prove, on the basis of a body of consistent evidence, that the change in the pattern of trade stems from circumvention practices, without having to demonstrate the existence of any particular practice?

68.      First of all, as I have already pointed out, (46) when deciding to impose anti-circumvention duties, the institutions are required to prove that allthe constituent elements of circumvention are present. They cannot therefore confine themselves to proving that there has simply been a change in the pattern of trade; they must also prove to the requisite legal standard that, in accordance with the wording used in the third sentence of Article 13(1) of the basic regulation, that change stems from practices (or processes or work) for which there is no justification other than the imposition of an anti-dumping duty.

69.      Secondly, in so far as concerns the standard of proof, I think that the reason for the interpretation adopted by the Court in its judgments in Simon, Evers & Co. and APEX in cases in which there was a total failure to cooperate, that is to say, the need to ensure that the effectiveness of EU trade-defence measures is not compromised, (47) is equally valid in a case, such as the present, in which the undertakings that failed to cooperate in the investigation account for the majority of the imports of the product in question into the Union. (48) In a case in which the extent of non-cooperation is so great, I think it permissible for the institutions to rely upon a body of consistent evidence in order to be able to establish to the requisite legal standard the existence of the elements constituting circumvention and, more particularly, to establish that the change in the pattern of trade stems from circumvention practices. Admittedly, in such a case, they may not, in reaching their conclusion, ignore a finding that some producers/exporters, whether many or a few, have not engaged in such practices.

70.      Thirdly, in so far as concerns the question whether the institutions must demonstrate the existence of any particular circumvention practice, I think the judgment in Simon, Evers & Co. provides some helpful guidance. As I have mentioned, that judgment concerned a case in which no cooperation at all had been obtained. In its analysis of the second constituent element of circumvention, the Court confirmed the validity of the affirmative determination set out in the regulation at issue, inter alia, on the basis that a body of consistent evidence substantiated that determination and the Council was in possession of information that suggested the existence of certain circumvention practices. (49)

71.      It follows that, in a case where no cooperation at all is obtained and there is a body of consistent evidence that suggests that the change in the pattern of trade stems from circumvention practices, while it is not necessary for the institutions to prove the existence of any particular circumvention practice, they must nevertheless be in possession of some evidence at least that suggests the existence of such practices. For the reasons I have given in point 69 above, I think that that same approach may be taken in a case, such as the present, which is characterised by a failure to cooperate in the investigation on the part of producers/exporters that account for a majority of the imports of the product in question.

72.      However, in the present case it is not apparent from the contested regulation or from the file that, other than the finding that Chin Haur was involved in transhipment operations, the institutions had any evidence that suggested the existence of circumvention practices.

73.      Moreover, and at all events, I think that where the institutions decide to base their conclusion concerning the second constituent element of circumvention on the existence of a particular practice, as they did in the present case, it is incumbent on them to substantiate their conclusions to the requisite legal standard.

74.      That being so, in the present case, the question of the validity of the Council’s finding concerning Chin Haur’s involvement in transhipment operations is decisive in the assessment of the lawfulness of the conclusion which the Council drew regarding the second constituent element of circumvention. (50)

–       The evidence of Chin Haur’s involvement in transhipment operations

75.      When, as in the present case, the institutions mean to base their conclusions regarding the second constituent element of circumvention — which, as mentioned, must be proven at country level — on findings concerning the involvement of an individual exporter/producer in circumvention practices, it follows from the case-law mentioned in point 45 above that the burden of proving those findings rests on them. (51)

76.      However, in accordance with Article 18(1) and (6) of the basic regulation, failing cooperation, the institutions may base their findings on the facts available. In such a case, it follows from the case-law mentioned in points 49 to 52 above that the burden of proof which rests on them is significantly lessened and they are permitted to base their findings on a body of consistent evidence.

77.      I would point out in this connection that, in its judgments in Simon, Evers & Co. and APEX, the Court applied that interpretation of Article 18(1) and (6) of the basic regulation with reference to the existence of circumvention in general. (52) In addition, in its judgment in Simon, Evers & Co., the Court applied that interpretation specifically to the constituent elements of circumvention, and in particular to the second of those elements. (53) By contrast, the Court has never applied that interpretation to findings relating to an individual undertaking.

78.      However, given the particular wording of paragraphs 1 and 6 of Article 18 of the basic regulation, which both refer to an ‘interested party’ in the singular, I think that the interpretation does apply to the findings which the institutions may be led to make in an anti-circumvention investigation with regard to an individual undertaking that has not cooperated in the investigation.

79.      It follows that, in the present case, the burden of proof which rested on the institutions was lessened as a result of Chin Haur’s failure to cooperate and they were entitled to rely upon a body of consistent evidence in order to substantiate, to the requisite legal standard, their findings concerning that undertaking’s involvement in circumvention practices.

80.      Nevertheless, it must be observed that, in the detailed analysis which it carried out in paragraphs 95 to 105 of the judgment under appeal of the available evidence on the basis of which the Council concluded, in recital 62 of the contested decision, that Chin Haur was involved in transhipment operations, the General Court did not actually take into account the legal implications of the fact that, during the investigation, Chin Haur was found not to have cooperated. That, however, was an essential factor in the analysis, as Maxcom has pointed out and as the General Court itself confirmed. Indeed, that failure to cooperate fundamentally altered the standard of proof which the Council had to meet in order to substantiate to the requisite legal standard its findings with regard to Chin Haur, which in turn substantiated the Council’s general conclusion regarding the existence of circumvention practices in Indonesia.

81.      On reading the relevant passages of the judgment under appeal it becomes clear that, although the General Court used the term ‘evidence’, it in fact required the Council to meet a stricter standard of proof. That is clearly apparent from the General Court’s assertion that the Council needed to ‘show that there was transhipment’ by Chin Haur by means of evidence that pointed ‘convincingly’ to the existence of transhipment. (54)

82.      In the relevant passages of the judgment under appeal the implications of Chin Haur’s refusal to cooperate are mentioned only in paragraph 103, in which the General Court held that the fact that Chin Haur had failed to provide evidence showing that it was indeed an Indonesian producer or that it met the criteria laid down in Article 13(2) of the basic regulation did not in itself prove that it was engaged in transhipment operations. Admittedly, a failure to cooperate cannot give rise to a presumption of circumvention. (55) However, it was precisely because of Chin Haur’s refusal to cooperate in the investigation that the institutions were prevented from determining with certainty whether it was engaged in the actual manufacture of bicycles.

83.      A finding that an undertaking genuinely is a manufacturer of the products which it exports is clearly a necessary precondition for finding that its exports are not the result of circumvention practices. On the other hand, the fact that it may be impossible to establish whether or not the undertaking genuinely is a manufacturer constitutes evidence that the goods it exports are not the product of a genuine manufacturing activity.

84.      That being so, I consider that the General Court erred in its application of Article 13(1) of the basic regulation by not actually considering the legal implications of Chin Haur’s failure to cooperate for the analysis which led it to conclude that the Council had not had sufficient evidence to find that Chin Haur was involved in transhipment practices. That error had repercussions for the implicit (56) finding on the basis of which the General Court annulled the contested regulation, that is to say the finding that, because of that insufficiency of evidence, the conclusion set out in recital 64 of the contested regulation concerning the existence of transhipment of Chinese-origin products via Indonesia was mistaken. It follows that the judgment under appeal should, in my opinion, be set aside.

iii) The other complaints put forward in the context of the pleas alleging incorrect application of Article 13(1) of the basic regulation

85.      For the sake of completeness, I shall make a few observations concerning the other complaints raised in the context of the pleas alleging incorrect application of Article 13(1) of the basic regulation.

86.      As regards the institutions’ complaint that the approach taken by the General Court means that they are required to demonstrate that every producer/exporter in the country concerned by the investigation is engaged in transhipment practices, I think that they rely upon a misreading of the judgment under appeal and the contested regulation. I think that Chin Haur is right when it states that at no point in its judgment did the General Court hold that the institutions must positively establish that every individual producer/exporter is engaged in transhipment operations. As I noted in points 56 and 57 of this Opinion, (57) it was the Council itself that merged the analysis at country level and the analysis at individual level, using its findings with regard to one individual producer/exporter in order to substantiate its conclusions at country level. It follows that all of the complaints that the institutions have based on this premiss must be rejected. (58)

87.      As regards the complaint concerning the inadequacy of the conclusions on the basis of which the General Court annulled the contested regulation, that too must in my view be rejected. Indeed, as the General Court noted in the judgment under appeal, if the finding concerning Chin Haur’s involvement in transhipment practices proved to be incorrect or insufficiently substantiated, the conclusion regarding the existence of transhipment operations via Indonesia, at country level, would then be supported only by the two other factors mentioned in recital 64 of the contested regulation. The first of those remaining factors, namely the change in the pattern of trade, is the first constituent element of circumvention, and so it cannot in itself be regarded as any indication of the presence of the second constituent element, since the institutions must prove all of the constituent elements. (59) As regards the second remaining factor, namely: the failure to cooperate of producers/exporters accounting for 9% of exports to the Union, it follows from the case-law mentioned in point 51 above that a refusal to cooperate cannot in itself lead to a presumption of circumvention. That factor cannot, therefore, constitute any indication of the presence of the second constituent element of circumvention.

88.      It follows that, contrary to the appellants’ arguments, in the present case, if the General Court had been right to hold that the finding with regard to Chin Haur was mistaken, that would have constituted sufficient grounds for annulment of the contested regulation.

B –    The pleas alleging an inadequate statement of reasons, contradictory reasoning and distortion of the facts

1.      Arguments of the parties

89.      By the second group of grounds of appeal, the institutions call into question the statement of reasons for the judgment under appeal. The Council also alleges distortion of the facts.

90.      In the first place, the institutions argue that the judgment under appeal fails to explain in what way the Council supposedly infringed Article 13(1) of the basic regulation. First, the judgment under appeal fails to indicate whether the error which the Council made was a mere error of assessment or a manifest error of assessment. Secondly, the General Court does not explain why it referred to the conclusion that Chin Haur did not have ‘sufficient production capacity’, when recital 62 of the contested regulation states that the company ‘did not own sufficient equipment’. Thirdly, the General Court based its conclusion that there was insufficient evidence of transhipment practices on its analysis of the verification visit and failed to explain why the written information which Chin Haur submitted before that visit did not provide the Council with sufficient evidence to establish transhipment practices.

91.      In the second place, the Commission submits that the statement of reasons for the judgment under appeal is contradictory. First of all, the Commission wonders how, in the light of paragraph 94 of the judgment under appeal, the evidence provided by Chin Haur could have failed to demonstrate that it too was involved in transhipment operations, if it indicated that the company engaged in circumvention by means of assembly operations. Secondly, the Commission criticises the General Court for contradicting itself, inasmuch as it asserted, on the one hand, that the only evidence the Council had was the report of the verification visit and, on the other hand, in paragraph 138 of the judgment under appeal, that a vast body of available facts supported the conclusion that there was circumvention by Chin Haur.

92.      The Council also puts forward the subsidiary argument that the General Court distorted the established facts. Given that transhipment was duly proven at country level and that Chin Haur’s request for exemption was unfounded, the only conclusion that the General Court could have drawn from the available facts was that Chin Haur was engaging in transhipment operations.

93.      Chin Haur disputes the Commission’s arguments.

2.      Assessment

94.      In so far as concerns, first of all, the complaints concerning the adequacy of the statement of reasons, it has consistently been held that the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review. The duty to state reasons which is incumbent upon the General Court in accordance with Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union is fulfilled where, even if it is implicit, the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. (60)

95.      It is clear from points 58 to 62 above that, even if, in the judgment under appeal, the General Court did not give a detailed account of the reasoning which led it to annul the contested regulation ‘to the extent that it concerns’ Chin Haur, its reasons may be inferred unequivocally from the judgment, such that the Court of Justice is able exercise its power of review. From that point of view, the judgment under appeal cannot, in my opinion, be regarded as vitiated by an inadequate statement of reasons.

96.      As regards the other complaints, first of all, the complaint that the judgment under appeal is vitiated by a failure to state reasons in that it does not explain whether the error which the Council made was a simple error of assessment or a manifest error of assessment cannot, in my view, succeed. While it is certainly desirable that the General Court should in its judgments state what standard of judicial review it is applying, a judgment is not to be regarded as vitiated by an inadequate statement of reasons merely because the General Court has failed to state explicitly what standard of judicial review it has applied. Since the institutions have not put forward any substantive argument concerning the application of an incorrect standard of judicial review, but confine themselves to arguing that the statement of reasons is inadequate, (61) the question of whether the standard actually applied in the judgment under appeal was correct or incorrect does not form part of the subject-matter of the present appeals.

97.      Secondly, the complaint concerning the failure to explain the distinction between ‘sufficient production capacity’ and ‘sufficient equipment’ cannot succeed either. Indeed, the two concepts were used with reference to the same idea, that is to say, Chin Haur’s production activities, with regard to which the Council had, in the General Court’s opinion, failed to prove to the requisite legal standard its conclusion as to their being insufficient to justify the volume of imports from Chin Haur.

98.      Thirdly, as regards the complaint that the General Court failed to explain why the written information which Chin Haur submitted did not provide the Council with sufficient evidence to establish transhipment practices, that too must be rejected in my view. Indeed, it is clear from the case-law that it is not for the Court of Justice to require the General Court to provide reasons for each of its choices where it relies on one item of evidence as opposed to another in support of its decision. To decide otherwise would be tantamount to the Court of Justice substituting its own assessment of the evidence for that made by the General Court, which it is not empowered to do. (62)

99.      As regards, in the second place, the complaints concerning contradictory reasoning, I consider the Commission’s first allegation to be based on a misreading of the judgment under appeal. Indeed, the General Court in no way indicated in paragraph 94 of the judgment that the evidence submitted by Chin Haur indicated that the company engaged in circumvention by means of assembly operations. The second supposed contradiction to which the Commission points equally does not support the complaint of contradictory reasoning. Indeed, in paragraph 138 of the judgment under appeal, the General Court merely listed, in response to an argument that the Council had not clarified the nature of the available facts, (63) the data used by the Council in order to conclude that all the constituent elements of a specific circumvention were present. I see no contradiction with the assertion in paragraphs 96 and 102 of the judgment that the Council relied to a large extent upon the mission report for the factual findings on the basis of which it concluded that Chin Haur was involved in transhipment operations.

100. In the third place, in so far as concerns the Council’s complaint of distortion of the facts, it must be borne in mind that, according to the case-law, such distortion must be obvious from the documents in the case-file, without there being any need to carry out a new assessment of the facts and the evidence. (64) The Council’s argument is based on the premiss that the existence of transhipment transactions at country level had been demonstrated, even if there was no error in the finding concerning Chin Haur’s involvement in transhipment operations. As I pointed out in point 85 above, that is not, in my view, the case. In the judgment under appeal, the General Court merely held that, on the basis of the information in the file, the Council had not been entitled to conclude that Chin Haur was involved in transhipment operations. In so doing, the General Court did not distort the fact but, in my view, erred in law by failing to take into consideration the essential fact of Chin Haur’s failure to cooperate in the investigation, which had a decisive effect on the standard of proof which the institutions had to meet in order to prove the company’s involvement in transhipment.

101. It follows from the foregoing that, in my opinion, both the second ground of appeal put forward by the Council in Case C‑259/15 P and the second ground of appeal put forward by the Commission in Case C‑253/15 P must be dismissed.

C –    The Commission’s third ground of appeal in Case C253/15 P, alleging infringement of its procedural rights

1.      Arguments of the parties

102. By its third ground of appeal, the Commission argues that the General Court infringed its procedural rights in that the General Court prevented it from submitting a statement in intervention. First of all, the General Court’s decision to adopt the expedited procedure which, under the second subparagraph of Article 76a(2) of the Rules of Procedure of the General Court in the version in force at the time of the proceedings before that Court, excluded any written intervention on the Commission’s part, lacked any statement of reasons. Next, the refusal of its application of 25 June 2014 for leave to submit a statement in intervention, by way of a measure of organisation of the procedure, was again lacking in any statement of reasons. Moreover, the General Court’s persistent refusal to allow the Commission written observations was not justified by any need to expedite the case, as is clear from the fact that the General Court took 19.3 months to deliver its judgment, while the average duration of a case before it was 23.4 months in 2014. Lastly, the findings of the General Court which the Commission regards as errors of law relate to the Commission’s investigative activities and, in particular, the relevance of the mission reports which it drafted on the occasion of its verification visits. Those findings of the General Court would have been different if the Commission had been allowed to express its position in advance of the hearing.

103. Chin Haur disputes the Commission’s arguments.

2.      Assessment

104. While it is true that the institutions enjoy the privilege, as interveners, of not having to establish that they have an interest in the outcome of a dispute, (65) they nevertheless remain subject to the Rules of Procedure of the European Union judicature.

105. In this case, it must first of all be observed that the case-file shows that the Commission submitted its application for leave to intervene on 17 October 2013, that is to say, after the General Court had acceded to Chin Haur’s request and decided that the case should be dealt with under the expedited procedure.

106. In accordance with Article 116(3) of the Rules of Procedure of the General Court in the version in force at the time of the proceedings before that Court, an intervener must accept the case as it finds it at the time of its intervention. It follows that the Commission may not, at all events, take issue with a decision, such as a decision that a case should be dealt with under the expedited procedure, that has been taken before its application for leave to intervene has been granted.

107. Next, it is clear from the second subparagraph of Article 76a(2) of those Rules of Procedure that, where a case is dealt with under the expedited procedure, an intervener may submit a statement in intervention only if the General Court allows it to by way of a measure of organisation of the procedure adopted in accordance with Article 64 of the Rules of Procedure.

108. As regards the refusal by the General Court of a request for measures of organisation of procedure or of inquiry submitted by a party, it is settled case-law that the General Court is the sole judge, in principle, of any need to supplement the information available to it in respect of the cases before it. (66)

109. It is for the General Court alone to decide whether there is any need for it to exercise its power to order measures of organisation of the procedure in order to supplement the information available to it, since the question of whether the evidence before it is sufficient is to be determined by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case. (67)

110. In the present case, first of all, the Commission does not allege any distortion of the evidence or any substantive inaccuracy of the findings of the General Court. Secondly, its request to be allowed to submit a statement in intervention by way of a measure of organisation of the procedure did not identify any documents or objective, precise factors that had to be produced in written form and that, if submitted orally, would not have enabled the Commission adequately to present its arguments. Thirdly, the Commission was given the opportunity to make full submissions at the hearing before the General Court. The Commission does not state in its appeal how the fact that it was able to express its position only at the hearing so affected the General Court’s findings that they would have been different if its request for permission to submit a statement in intervention had been granted.

111. That being so, the Commission’s third ground of appeal must, in my opinion, be dismissed.

112. It follows from the foregoing analysis, and in particular from the conclusion I expressed in point 84 above, that the appeals brought by Maxcom, the Council and the Commission must be upheld and the judgment under appeal consequently be set aside.

VI –  The action before the General Court

113. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits. I think that, as Chin Haur itself argues, that is the position in this case.

114. It is therefore necessary to analyse the three complaints that Chin Haur made in the context of the second part of its first plea in law in its action before the General Court. It must be borne in mind in this connection that, as I mentioned in point 44 of this Opinion, the scope of judicial review is, in accordance with the case-law, limited in the sense that I described in that point.

115. The first of these three complaints is the complaint upheld by the General Court in the judgment under appeal following an analysis which, to my mind, was vitiated by error. The complaint is that the Council erred in concluding, in recital 62 of the contested regulation, that Chin Haur did not have sufficient capacity to justify its volumes of exports to the Union.

116. As is clear from the case-law mentioned in points 49 to 52 above, and as I observed in points 75 to 79 above, in the situation at issue in the present case, the burden of proof that rested on the institutions was lessened as a result of Chin Haur’s failure to cooperate and they were entitled to rely upon a body of consistent evidence in order to substantiate, to the requisite legal standard, their findings concerning that undertaking’s involvement in circumvention practices.

117. That being so, I consider that the significant volume of Chin Haur’s exports to the Union of bicycles whose origins could not be established (68) and the concomitant want of evidence to show that Chin Haur was a genuine bicycle manufacturer constituted elements that, failing any other factors, permitted the institutions to conclude, on the basis of logic and reason, that Chin Haur was involved in transhipment operations. (69) Moreover, that evidence was further supported by various factors which created uncertainty as to Chin Haur’s actual activities. (70) If there were reasonable grounds for its activities, other than the avoidance of anti-dumping duties, it was incumbent on Chin Haur to prove those grounds. (71)

118. It follows that the Council made no manifest error of assessment in concluding in recital 62 of the contested regulation that Chin Haur was involved in transhipment operations. Consequently, the first complaint in the second part of the first plea put forward by Chin Haur at first instance must, in my view, be rejected.

119. By the second complaint made in the context of the second part of the first plea put forward at first instance before the General Court, Chin Haur argued that the Council erred in law by inferring transhipment merely from the change in the pattern of trade. The Council neither provided evidence of such transhipment operations nor established a causal link between such operations and the supposed change in the pattern of trade.

120. Admittedly, it is clear from recital 64 of the contested regulation that the Council referred to the change in the pattern of trade as one of the factors from which it could infer the existence of transhipment practices in Indonesia, whereas, as I observed in point 87 of this Opinion, a change in the pattern of trade is the first constituent element of circumvention, and so it cannot in itself be regarded as any indication of the existence of circumvention practices.

121. However, it must be observed that, contrary to Chin Haur’s submission before the General Court, the Council did not rely solely upon that factor in recital 64 of the contested decision. On the contrary, it took two further factors into account: the finding concerning Chin Haur’s involvement in transhipment practices, that company accounting for a significant proportion (42%) of bicycle imports into the Union, and the fact that other relevant parties accounting for 9% of such imports had not cooperated in the investigation. Admittedly, as I have pointed out, (72) that refusal to cooperate cannot in itself lead to a presumption of transhipment operations. Nevertheless, given the significant increase in imports of bicycles from Indonesia into the Union just after the increase in the anti-dumping duty on imports from China (73) and other indications, arising from the finding with regard to Chin Haur, of the existence of transhipment operations via Indonesia, that lack of cooperation was capable of constituting additional evidence reinforcing the conclusion as to the existence of such operations. (74) Given those circumstances, the Council did have sufficient consistent evidence, according to the case-law, to justify its conclusion as to the existence of circumvention practices via Indonesia in this case.

122. In so far as concerns the argument that the Council erred in that it failed to establish a causal link between the change in the pattern of trade and transhipment operations, I would note the following. First of all, it is definitively established that the Council did not err in concluding that there was no due cause or economic justification for those operations other than the avoidance of the anti-dumping measures. (75) Secondly, the Council has stated that the investigation revealed no increase in the consumption of bicycles in Indonesia, that might have encouraged manufactures to increase their production capacity. Furthermore, the investigation revealed that the three Indonesian companies that were granted exemption focused on the domestic market rather than export markets. Thirdly, it must be observed that there is no evidence to substantiate Chin Haur’s allegations that the change in the pattern of trade might have resulted from an increase in production capacities in Indonesia, from the relocation of Chinese producers to Indonesia because of the increase in the anti-dumping duty or from the fact that Indonesian producers had seized the opportunity presented by the decrease in Chinese exports to the Union to increase their market share in the Union.

123. It follows that the second complaint in the second part of the first plea put forward by Chin Haur at first instance must, in my view, be rejected too.

124. In so far as concerns the third complaint in the second part of the first plea put forward before the General Court, Chin Haur argues that, failing any other evidence, the information it provided ought to have constituted the ‘available facts’, within the meaning of Article 18(1) of the basic regulation, on the basis of which the Council ought to have concluded that there were no transhipment operations.

125. This complaint too must be rejected. Indeed, on the one hand the General Court held in the judgment under appeal that the information provided by Chin Haur was contradictory, incomplete and unreliable and, on the other, it is clear from my analysis of the first and second complaints above that the Council had sufficient consistent evidence to conclude, in the light of the relevant case-law, that there were in this case transhipment practices.

126. In light of all the foregoing considerations, I consider that the action for annulment brought by Chin Haur must be dismissed.

VII –  Costs

127. Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of the rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

128. If the Court agrees with my assessments concerning the three joined appeals, the unsuccessful party will be Chin Haur. In those circumstances, since Maxcom, the Council and the Commission have applied for costs, I propose that Chin Haur be ordered to pay the costs incurred at first instance and on appeal by Maxcom, the Council and the Commission.

VIII –  Conclusion

129. In the light of the foregoing considerations, I propose that the Court:

(1)      Set aside the judgment of the General Court of the European Union of 19 March 2015, Chin Haur Indonesia v Council (T‑412/13, EU:T:2015:163);

(2)      Dismiss the action for annulment brought by Chin Haur Indonesia PT;

(3)      Order Chin Haur Indonesia PT to pay the costs incurred at first instance and on appeal by Maxcom Ltd, the Council of the European Union and the European Commission.


1      Original language: French.


2      T‑412/13, EU:T:2015:163.


3      Council Implementing Regulation (EU) No 501/2013 of 29 May 2013 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 990/2011 on imports of bicycles originating in the People’s Republic of China to imports of bicycles consigned from Indonesia, Malaysia, Sri Lanka and Tunisia, whether declared as originating in Indonesia, Malaysia, Sri Lanka and Tunisia or not (OJ 2013 L 153, p. 1).


4      This Opinion is delivered in parallel with the Opinion in Cases C‑248/15 P, Maxcom v City Cycle Industries, C‑254/15 P, Commission v City Cycle Industries, and C‑260/15 P, Council v City Cycle Industries, which are three appeals brought by the same parties against a judgment of the General Court delivered the same day as the judgment under appeal and concerning the same implementing regulation. The issues raised in those three appeals are similar to those raised in the present cases.


5      Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22), as amended by Regulation (EU) No 1168/2012 of the European Parliament and of the Council of 13 June 2012 (OJ 2012 L 237, p. 1).


6      Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (JO 1994, L 336, p. 103) set out in Annex 1A to the Agreement establishing the World Trade Organisation, 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).


7      See recital 22 of the basic regulation and point 10 of the Opinion of Advocate General Bot in Simon, Evers & Co. (C‑21/13, EU:C:2014:261).


8      For the references to the EU’s anti-circumvention rules in force before the adoption of the basic regulation, see point 9 of the Opinion of Advocate General Bot in Simon, Evers & Co. (C‑21/13, EU:C:2014:261).


9      Specifically, according to Article 13(2), an assembly operation is regarded as circumventing measures in force where: (a) the operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures, and (b) the parts constitute 60% or more of the total value of the parts of the assembled product, except that in no case shall circumvention be considered to be taking place where the value added to the parts brought in, during the assembly or completion operation, is greater than 25% of the manufacturing cost, and (c) the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the assembled like product and there is evidence of dumping in relation to the normal values previously established for the like or similar products.


10      Council Implementing Regulation (EU) No 990/2011 of 3 October 2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ 2011 L 261, p. 2). See paragraphs 2 to 6 of the judgment under appeal for the references to the earlier regulations.


11      Commission Regulation (EU) No 875/2012 of 25 September 2012 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation No 990/2011 by imports of bicycles consigned from Indonesia, Malaysia, Sri Lanka and Tunisia, whether declared as originating in Indonesia, Malaysia, Sri Lanka and Tunisia or not, and making such imports subject to registration (OJ 2012 L 258, p. 21). That investigation was initiated following a request lodged by the European Bicycle Manufacturers Association (EBMA) on behalf of Maxcom, amongst others. See recitals 10 to 13 of the contested regulation and paragraphs 8 and 9 of the judgment under appeal.


12      For further details on this point, see paragraphs 8 to 18 of the judgment under appeal.


13      See recitals 28 to 32 of the contested regulation.


14      See recitals 45 to 58 and 59 to 67 of the contested regulation and also recitals 92 (concerning the absence of any due cause or economic justification other than the avoidance of the existing anti-dumping measures), 93 to 96 (concerning the undermining of the remedial effects of those measures) and 99 to 102 (concerning the dumping of goods with reference to their normal value as previously established).


15      See recitals 65 to 67 of the contested regulation.


16      See recitals 115 and 117 and Article 1(1) and (3) of the contested regulation.


17      See recital 120 and Article 1(1) of the contested regulation.


18      See Article 76a of the Rules of Procedure of the General Court in the version in force at the time of the proceedings before that Court.


19      That decision was taken under the second subparagraph of Article 76a(2) of the Rules of Procedure of the General Court in the version in force at the time of the proceedings before that Court.


20      In accordance with the second subparagraph of Article 76a(2) of the Rules of Procedure of the General Court in the version in force at the time of the proceedings before that Court, where a case was dealt with under the expedited procedure, an intervener might submit a statement in intervention only if the General Court allowed it to by way of a measure of organisation of the procedure adopted in accordance with Article 64 of the Rules of Procedure. The Commission’s application was based on that latter provision.


21      The first and second grounds of Maxcom’s appeal in Case C‑247/15 P and the first ground of the Council’s and the Commission’s appeals in Cases C‑259/15 P and C‑253/15 P respectively.


22      The second ground of the Council’s and the Commission’s appeals in Cases C‑259/15 P and C‑253/15 P respectively.


23      The third ground of the Commission’s appeal in Case C‑253/15 P.


24      C‑21/13 (EU:C:2014:2154).


25      See, inter alia, the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraphs 64 and 65 and the case-law cited).


26      See, in particular, the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 44 and the case-law cited). See also the judgment of 30 May 2013, Quinn Barlo and Others v Commission (C‑70/12 P, EU:C:2013:351, paragraph 36 and the case-law cited). The Court of Justice has on numerous occasions analysed, in the context of an appeal, the issue of failure to follow the rules relating to the standard of proof (see, in particular, the judgments of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 54 et seq.; and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 77 et seq.)


27      On the fundamental purpose of the EU rules on circumvention, see recital 19 of the basic regulation, the judgment of 6 June 2013, Paltrade, C‑667/11, EU:C:2013:368, paragraph 28 and the judgment of the General Court of 26 September 2000, Starway v Council, T‑80/97, EU:T:2000:216, paragraphs 85 and 113.


28      Judgment of 4 September 2014 (C‑21/13, EU:C:2014:2154).


29      Judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154) paragraph 48. See also the Opinion of Advocate General Bot in Simon, Evers & Co. (C‑21/13, EU:C:2014:261, point 87).


30      Judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 29 and the case-law cited).


31      Judgment of 4 September 2014, Simon, Evers & Co., (C‑21/13, EU:C:2014:2154, paragraph 29 and the case-law cited).


32      Judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154.


33      Judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154. paragraph 35.


34      See, to that effect, the Opinion of Advocate General Bot in Simon, Evers & Co. (C‑21/13, EU:C:2014:261, point 4). The requirement for the institutions to prove all the conditions listed in the third sentence of Article 13(1) of the basic regulation is confirmed not only by the wording of the provision itself, but also by the approach taken by the Court of Justice in the judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154. Indeed, in that judgment, the court analysed the validity of the regulation at issue with reference to each of the elements in relation to which the referring court had expressed doubt (namely, the first and second elements mentioned in point 43 above; see, respectively, paragraph 39 et seq. and paragraph 50 et seq. of that judgment.


35      The parties disagree as to who bears the burden of proving that the producer/exporter is not involved in the circumvention practices, so that the exemption under Article 13(4) of the basic regulation may be granted. The Council and the Commission maintain that burden of proof rests on the producer/exporter, which, pursuant to that provision, must submit a request that is ‘duly supported by evidence’. Chin Haur, on the other hand, maintains that such an understanding of the burden of proof is contrary to the wording of the provision, which, with the words ‘are found not to be’, implies that the burden of proof rests on the institutions. I consider that it falls to parties offering genuine cooperation and hoping to benefit from exemption to provide such evidence as will enable to institutions to determine with certainty that they are not involved in the circumvention practices. That position is justified in particular by the fact that, as I shall discuss in point 49 below, the institutions are reliant, in their investigations into possible circumvention, on the voluntary cooperation of the parties concerned. I would nevertheless point out that, although in the present case this question is related to the issue of the finding of circumvention in accordance with the provisions of Article 13(1) of the basic regulation (see the last sentence of point 48 below and the next footnote), it is not in fact decisive to the outcome of the appeals. Indeed, it has been definitively established that Chin Haur was not eligible for exemption under the provisions of Article 13(4) of the basic regulation (see point 63 below and footnote 46).


36      As regards the burden of proof in such a situation, see points 57 and 75 of this Opinion.


37      C‑21/13, EU:C:2014:2154.


38      C‑371/14, EU:C:2015:828.


39      Judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraphs 32 to 34) and of 17 December 2015, APEX (C‑371/14, EU:C:2015:828, paragraphs 64 to 66).


40      Judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 35) and of 17 December 2015, APEX (C‑371/14, EU:C:2015:828, paragraph 67.


41      Judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 36) and of 17 December 2015, APEX (C‑371/14, EU:C:2015:828, paragraph 68).


42      Judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 37) and of 17 December 2015, APEX (C‑371/14, EU:C:2015:828, paragraph 69).


43      See the judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraphs 39 and 56) and of 17 December 2015, APEX (C‑371/14, EU:C:2015:828, paragraph 71).


44      See paragraphs 95 and 104 of the judgment under appeal.


45      Indeed, in the judgment under appeal, the General Court confirmed that the information provided was contradictory, incomplete and unverifiable (see paragraphs 81 to 94 and 110 to 120 of the judgment under appeal). It also dismissed the part of the second plea in law, which alleged errors in the finding that Chin Haur had not cooperated (see paragraphs 110 to 120). Those parts of the judgment under appeal are not contested by Chin Haur.


46      See point 45 of this Opinion.


47      See point 53 of this Opinion.


48      It is apparent from the case-file that Chin Haur accounted for 42% of bicycle imports into the Union from Indonesia and that the proportion of such imports attributable to companies that did not cooperate, mentioned in recital 63 of the contested regulation, was 9%.


49      Specifically, information concerning a significant volume of assembly operations (see paragraph 53 of the judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154).


50      That is all the more true because, as I shall explain in point 87 below, the two other elements on which the Council’s conclusion was based were insufficient in themselves to substantiate that conclusion to the requisite legal standard.


51      Where the producer/exporter in question has submitted a request for exemption under Article 13(4) of the basic regulation, the institutions may rely upon the information provided by that producer/exporter. However, that does not alter the fact that the burden of proving that the constituent elements of circumvention, in accordance with the terms of Article 13(1) of the basic regulation, are present remains on the institutions. (As regards the burden of proof in the context of the assessment under Article 13(4) of the basic regulation, on the other hand, see footnote 35 to this Opinion.)


52      See points 49 to 53 above.


53      See the judgment in Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraphs 50 to 56).


54      See paragraphs 97 and 100 of the judgment under appeal.


55      See point 51 of this Opinion.


56       See points 60 to 62 of this Opinion.


57      See also, on this issue, points 48 and 75 of this Opinion.


58      Specifically, the complaints, described in point 35 of this Opinion, concerning the effectiveness of Article 13(4) of the basic regulation and confusion between the concept of ‘circumvention practice’ and one of its manifestations are answered by this reasoning.


59      See point 45 of this Opinion.


60      See, in particular, to that effect, the judgment of 10 April 2014, Areva and Others v Commission (C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 54 and 55).


61      I would point out that, in the context of its first plea, alleging errors in the application of Article 13(1) of the basic regulation, the Commission asserts that the judgment under appeal failed sufficiently to state the reasons for which the contested regulation infringed that provision and then goes on to describe as an error of law the fact that ‘the judgment under appeal does not even articulate a standard of review, and in particular does not indicate whether the Council made a simple error of assessment or a manifest error of assessment’. However, in this context, the Commission does not develop any argument on that head, but confines itself to an explicit reference ‘[for] analys[is] in more detail’ to its second plea, alleging an inadequate statement of reasons. It has to be held that merely classifying the failure to mention the criterion of judicial review applied by the General Court as an error in law, when that classification is unsupported by any argument or explanation other than a general reference to the plea alleging failure to state reasons, cannot be interpreted as an independent claim that the General Court overstepped the required level of judicial review, and so trespassed on the discretion enjoyed, according to the case-law mentioned in point 44 of this Opinion, by the institutions. In the circumstances, this complaint of the Commission’s essentially coincides with its complaint of an inadequate statement of reasons analysed in this paragraph. I would also observe in this connection that it is clear from Article 168(1)(d) of the Rules of Procedure of the Court of Justice that it is for the appellants to explain sufficiently the arguments on which they rely.


62      See the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 161).


63      See paragraph 129 of the judgment under appeal.


64      See the judgment of 2 June 2016, Photo USA Electronic Graphic v Council (C‑31/15 P, EU:C:2016:390, paragraph 52 and the case-law cited).


65      Judgment of 29 October 1980, Roquette Frères v Council (138/79, EU:C:1980:249, paragraph 21).


66      See, inter alia, the judgment of 9 June 2016, PROAS v Commission (C‑616/13 P, EU:C:2016:415, paragraph 66 and the case-law cited).


67      See, to that effect, the judgment in Heli-Flight v AESA (C‑61/15 P, EU:C:2016:59, paragraph 94 and the case-law cited).


68       See paragraph 118 of the judgment under appeal.


69      The Court referred to ‘a link based in logic and reason’ in paragraph 52 of its judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154).


70      The General Court itself pointed to these factors: see paragraph 100 of the judgment under appeal and the observation made in the first sentence of paragraph 105 thereof.


71      See the judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 56, in fine).


72      See points 51, 82 and 87 of this Opinion.


73      See recital 46 of the contested regulation and paragraph 52 of the judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154).


74      See, to that effect, paragraph 54 of the judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154), applicable by analogy for the reasons given in point 69 of this Opinion.


75      See point 92 of the contested regulation.