JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
15 December 2016 (*)
(Dumping — Imports of cotton-type bed linen originating in Pakistan — Interest in bringing proceedings — Initiation of the investigation — Constructed normal value — Manifest error of assessment — Rights of the defence — Obligation to state reasons — Right to be heard at a hearing — Comparison between the normal value and the export price — Drawback of import duties — Adjustment — Injury — Causal link — WTO law)
In Case T‑199/04 RENV,
Gul Ahmed Textile Mills Ltd, established in Karachi (Pakistan), represented by L. Ruessmann, lawyer, and J. Beck, Solicitor,
applicant,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, and by R. Bierwagen and C. Hipp, lawyers,
defendant,
supported by
European Commission, represented by J.-F. Brakeland and A. Stobiecka Kuik, acting as Agents,
intervener,
ACTION pursuant to Article 263 TFEU for annulment of Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive antidumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004 L 66, p. 1), in so far as it concerns the applicant,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 26 November 2015,
gives the following
Judgment
Background to the dispute
1 The applicant, Gul Ahmed Textile Mills Ltd, a company incorporated under Pakistani law, whose registered office is in Karachi (Pakistan), is engaged, in particular, in export sales and marketing of bed linen. It manufactures that product in Pakistan and exports it to the European Union. It does not sell any bed linen on the Pakistani domestic market, although it does sell various commodities.
2 Following a complaint lodged on 30 July 1996 by the Committee of the Cotton and Allied Textile Industries of the European Community (‘Eurocoton’ or ‘the complainant’), and the initiation of an antidumping proceeding on 13 September 1996, definitive antidumping duties were imposed on Pakistani and other producers by Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive antidumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan (OJ 1997 L 332, p. 1) (‘the previous anti-dumping duties’). Pursuant to Article 1(1) of that regulation, a definitive antidumping duty was imposed on imports of bed linen of cotton fibres, pure or mixed with man-made fibres or flax (flax not being the dominant fibre), bleached, dyed or printed, falling within CN codes ex 6302 21 00 (TARIC codes 6302 21 00 * 81 and 6302 21 00 * 89), ex 6302 22 90 (TARIC code 6302 22 90 * 19), ex 6302 31 10 (TARIC code 6302 31 10 * 90), ex 6302 31 90 (TARIC code 6302 31 90 * 90) and ex 6302 32 90 (TARIC code 6302 32 90 * 19).
3 In accordance with the Memorandum of Understanding between the European Community and the Islamic Republic of Pakistan on transitional arrangements in the field of market access for textile and clothing products, initialled in Brussels on 15 October 2001 (OJ 2001 L 345, p. 81), and following the adoption of Council Regulation (EC) No 2501/2001 of 10 December 2001 applying a scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004 — Statements on a Council Regulation applying a scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004 (OJ 2001 L 346, p. 1), Pakistan began to benefit from that scheme in so far as it applied to countries combating drug production and trafficking. Consequently, as from 1 January 2002, textile and clothing products from Pakistan began to enter the European Union free of duties after having been subject to a customs duty of 12%. In accordance with Article 10 of Regulation No 2501/2001, read in combination with Annex IV to the same regulation, products exempted from duties by reason of their inclusion in the special arrangements to combat drug production and trafficking included the following products falling within Chapter 63 of the combined nomenclature: ‘Other made-up textile articles; sets; worn clothing and worn textile articles’.
4 The previous antidumping duties were abolished as from 30 January 2002, in relation to Pakistani producers, by Council Regulation (EC) No 160/2002 of 28 January 2002 amending Council Regulation (EC) No 2398/97 (OJ 2002 L 26, p. 1).
5 Following a fresh complaint lodged on 4 November 2002 by Eurocoton, the Commission of the European Communities initiated an antidumping proceeding with regard to imports into the European Union of bed linen of cotton fibres, pure or mixed with man-made fibres or flax (flax not being the dominant fibre), bleached, dyed or printed originating in Pakistan (‘the product concerned’). It stated ‘purely for information’ that they fell within CN codes ‘ex 6302 21 00, ex 6302 22 90, ex 6302 31 10, ex 6302 31 90 and ex 6302 32 90’. The notice of initiation of that proceeding was published in the Official Journal of the European Communities of 18 December 2002 (OJ 2002 C 316, p. 6).
6 The investigation relating to the dumping and resulting injury covered the period from 1 October 2001 to 30 September 2002 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1999 to the end of the investigation period (‘the period considered’).
7 In accordance with Article 17 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended, most recently as at the date of the facts, by Council Regulation (EC) No 1972/2002 of 5 November 2002 (OJ 2002 L 305, p. 1) (‘the basic regulation’), the Commission chose a sample of six companies, representing more than 32% by volume of Pakistani exports of cotton bed linen to the European Union during the investigation period. The Commission also selected European Union producers. Those companies were invited to reply to the antidumping questionnaire. All the sampled undertakings, including the applicant, as well as two independent importers in the European Union and three Pakistani exporting producers not included in the sample but which had requested individual treatment, provided answers to the questionnaire.
8 On 10 February 2003, the associations representing the Pakistani exporting producers of bed linen sent the Commission a document entitled ‘Observations on injury’. In those observations, they dispute, inter alia, the legality of initiating the antidumping proceeding, the substance of the injury suffered by the EU industry, and the existence of a causal link between the Pakistani exports and the alleged injury suffered by that industry. On 2 June 2003, a hearing was arranged by the Commission, attended, inter alia, by the Pakistani exporting producers, including the applicant. The associations representing the Pakistani exporting producers then supplied the Commission with a document entitled ‘Observations post-hearing as to injury’, in which they reacted to the points discussed at that hearing.
9 The Commission carried out verification visits at the premises of the exporting producers in order to verify the information it had received in the replies to the questionnaire. However, while carrying out verifications at the second Pakistani exporting producer company, the Commission received an anonymous letter addressed personally to the officials responsible for the verification visits, threatening them with death. In the light of the specific and personal nature of that threatening letter, the Commission took the view that the conditions required for carrying out the verifications were not met and that the investigation was significantly impeded. Consequently, the verification visits had to be interrupted. Thus it was possible to carry out a full verification only at the premises of the applicant and a partial verification at the premises of another Pakistani exporting producer. The exports of those two companies represent more than 50% of the total CIF (cost, insurance and freight) value of exports to the European Union by the exporting producers in the sample. Moreover, taking the view that the necessary conditions were not met for carrying out the investigation on the spot in Pakistan, the Commission did not accept the requests for individual treatment submitted by the three Pakistani exporting producers not included in the sample.
10 On 10 December 2003, the Commission sent the applicant a general definitive disclosure document setting out the facts and grounds on which it proposed the adoption of definitive antidumping measures, as well as a specific definitive disclosure document for the applicant. By letter of 5 January 2004, the applicant disputed the Commission’s submissions as set out in those documents. Other information was submitted to the Commission by the applicant in letters dated 16 February 2004.
11 On 17 February 2004, the Commission replied to the letter of 5 January 2004. Although it had made some corrections to its calculations, it confirmed the findings it had set out in the disclosure documents referred to in paragraph 10 above. By letter of 27 February 2004, the applicant drew particular attention to the errors allegedly made by the Commission in its analysis.
12 On 23 February and 1 March 2004, the applicant requested a new hearing. That request was rejected.
13 On 2 March 2004, the Council of the European Union adopted Regulation (EC) No 397/2004 imposing a definitive antidumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004 L 66, p. 1; ‘the contested regulation’). By that regulation, the Council imposed antidumping duties of 13.1% on imports of bed linen of cotton fibres, pure or mixed with man-made fibres or flax (flax not being the dominant fibre), bleached, dyed or printed originating in Pakistan classifiable within CN codes ex 6302 21 00 (TARIC codes 6302 21 00 81 and 6302 21 00 89), ex 6302 22 90 (TARIC code 6302 22 90 19), ex 6302 31 10 (TARIC code 6302 31 10 90), ex 6302 31 90 (TARIC code 6302 31 90 90) and ex 6302 32 90 (TARIC code 6302 32 90 19).
14 Following a partial interim review, limited to dumping, carried out on the Commission’s own initiative in accordance with Article 11(3) of the basic regulation on the basis of a new investigation period between 1 April 2003 and 31 March 2004, the Council amended the contested regulation by adopting Regulation (EC) No 695/2006 of 5 May 2006 (OJ 2006 L 121, p. 14), which established new rates of antidumping duties ranging from 0% to 8.5%. Given the large number of cooperating exporting producers, a sample including the applicant was established. The rate of definitive antidumping duty applicable to its products was set at 5.6%.
Procedure before the General Court and the Court of Justice
15 By application lodged at the Court Registry on 28 May 2004, the applicant sought the annulment of the contested regulation, in so far as it concerned the applicant.
16 By document lodged at the Court Registry on 9 September 2004, the applicant requested that the proceedings be stayed until 31 December 2004. The President of the Fifth Chamber of the General Court granted that request by order of 15 October 2004.
17 By document lodged at the Court Registry on 14 September 2004, the Commission applied for leave to intervene in support of the form of order sought by the Council. By order of 15 March 2005, the President of the Fifth Chamber of the Court granted leave to intervene.
18 By letter lodged at the Court Registry on 31 December 2004, the applicant submitted a request to extend the stay of proceedings until 30 April 2005. In its observations, lodged at the Court Registry on 7 March 2005, the defendant took the view that it would be more advisable to stay the proceedings indefinitely, until such time as the applicant sought to reopen proceedings. By order of 31 March 2005, the President of the Fifth Chamber of the Court stayed the proceedings indefinitely.
19 By letter lodged at the Court Registry on 23 June 2006, the applicant requested that proceedings be reopened. The President of the Fifth Chamber of the Court reopened the proceedings by order of 7 September 2006.
20 The parties were notified of the closure of the written part of the procedure on 14 May 2007.
21 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated. Since the Judge-Rapporteur initially designated was prevented from performing his duties, the President of the General Court reassigned the case on 16 October 2009 to another Judge-Rapporteur.
22 On 10 June 2010, the Court asked the applicant to rectify a document attached to the application and another attached to the reply, since they were illegible. Although, by letter of 17 June 2010, the applicant submitted the documents requested, the document attached to the application was still illegible. The Court therefore requested that that document should be re-submitted, which the applicant did by letter of 12 July 2010, providing a transcript of the document in question.
23 On a proposal from the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral part of the procedure. The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 27 October 2010.
24 In its judgment of 27 September 2011 in Gul Ahmed Textile Mills v Council (T‑199/04, not published, EU:T:2011:535), the General Court (Seventh Chamber) considered it appropriate to rule, first, on the third part of the fifth plea in law, alleging, in essence that the Council erred in law by failing to examine whether the abolition of the previous antidumping duties and the implementation of the generalised scheme of preferences (‘the two measures at issue’), in favour of Pakistan, had the effect of breaking the causal link between the injury suffered by the EU industry and the imports from Pakistan. The Court took the view, in paragraph 59 of that judgment, that those two measures were known factors which the Commission and the Council (together, ‘the institutions’) had to take into account in assessing the reality of the causal link between the injury suffered by the EU industry and the imports from Pakistan of the product forming the subject matter of the antidumping investigation. The Court inferred from this, in paragraph 84 of that judgment, that it was not apparent from the analysis carried out by the EU institutions, even in the form of a mere estimate, what the injury suffered by the EU industry would have been in the absence of any dumping, that is to say what injury arose merely from the entry into force of the two measures at issue, whether in terms of loss of market share, reduction in profitability or performance of the industry referred to above, renunciation of lower segments of the market or any other relevant economic indicator. Consequently, the Court upheld the third part of the fifth plea in law and, without examining the other pleas in law, annulled the contested regulation in so far as it concerned the applicant.
25 The Council, supported by the Commission, brought an appeal against the judgment of 27 September 2011, Gul Ahmed Textile Mills v Council (T‑199/04, not published, EU:T:2011:535), submitting that the General Court had erred in concluding that the two measures at issue constituted ‘other factors’ within the meaning of Article 3(7) of the basic regulation, and that consequently, the General Court had erred in finding that, in the present case, the institutions had infringed that provision because they failed to separate or distinguish the alleged injurious effects of the two measures at issue.
26 In paragraphs 27 to 31 of the judgment of 14 November 2013, Council v Gul Ahmed Textile Mills (C‑638/11 P, EU:C:2013:732), the Court of Justice ruled that it was apparent from the wording of Article 3(7) of the basic regulation, in particular the words ‘known factors which are injuring the [European Union] industry’, that that regulation required the factors which were directly causing injury to be examined, which presupposed the existence of a direct causal link. By contrast, the changes to the legislative conditions under which the dumped imports take place, such as those in the present case, cannot be regarded, as such, as causing injury. It is the imports themselves which are causing injury. The dumped imports and the legislative conditions under which they take place are inseparable. Therefore, the two measures at issue which facilitate and promote imports are only indirect causes and cannot be regarded as ‘other factors’ within the meaning of Article 3(7) of the basic regulation. In those circumstances, the Court of Justice found that the General Court erred in law in holding that the two factors at issue constituted ‘other factors’ within the meaning of Article 3(7) of the basic regulation. However, the Court of Justice stated in paragraph 35 of its judgment that that conclusion did not prejudge the question whether the two measures at issue must be taken into account when examining whether there was injury in accordance with Article 3(2), (3) and (5) of that regulation.
27 Consequently, the Court of Justice set aside the judgment of 27 September 2011, Gul Ahmed Textile Mills v Council, (T‑199/04, not published, EU:T:2011:535), referred the case back to the General Court and reserved the costs.
28 The case was allocated to the Fifth Chamber of the General Court.
29 On 29 January 2014, the applicant submitted written observations in accordance with Article 119(1)(a) of the Rules of Procedure of the General Court of 2 May 1991. However, by decision of 11 March 2014, the President of the Fifth Chamber of the General Court refused to place them on the file because they were submitted after the deadline.
30 On 15 May 2014, the Council submitted written observations, as provided for in Article 119(1)(b) of the Rules of Procedure of 2 May 1991. On 3 June 2014, the applicant responded to those observations. The applicant submitted, in essence, that, the arguments presented in that document went beyond observations relating to the impact of the findings of the Court of Justice as regards the remainder of the proceedings, and that the General Court should therefore not take them into account. By decision of 10 June 2014, those observations by the applicant were placed on the file under Article 119(3) of the Rules of Procedure of 2 May 1991. On 9 July 2014, the Council responded to those observations.
31 By letter of 21 September 2015, the General Court asked the Council, by way of measures of organisation of procedure, to submit a single document explaining more thoroughly all the corrections and adjustments made by the institutions, before and after the verification visit, to the figures submitted by the applicant, in order to determine the normal value of the applicant’s products, including the on-the-spot domestic profit correction of PKR 302 273 085 and the adjustment in respect of the duty drawback deducted to add to the costs of manufacturing of PKR 82 598 672. The Council responded on 20 October 2015.
32 Acting on a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 26 November 2015.
33 At the hearing, the President of the Fifth Chamber of the Court accepted the Commission’s lodging of a document concerning the applicant’s profit margin. After receiving observations from the other parties, that document was placed on the file.
34 The representatives of the institutions claimed that the applicant no longer had any legal interest in seeking the annulment of the contested regulation and asked the Court to examine whether the present action had become devoid of purpose. The President of the Fifth Chamber of the Court gave the applicant a time limit of two weeks as of the hearing to submit its comments regarding that question.
35 The institutions were given the same time limit to explain the origin of the adjustment in respect of the duty drawback deducted to add to the costs of manufacturing.
36 The parties replied on 10 December 2015. They were then given the opportunity to react, which they did on 6 January 2016, in so far as concerns the Commission, and on 20 January 2016, in so far as concerns the applicant and the Council.
37 By decision of 1 February 2016, the President of the Fifth Chamber of the Court decided to close the oral part of the proceedings.
Forms of order sought after referral
38 The applicant claims that the Court should:
– declare its action admissible;
– annul the contested regulation in so far as it concerns the applicant;
– order the Council to pay the costs.
39 The Council contends that the Court should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicant to pay the costs.
40 The Commission contends that the Court should:
– declare that there is no longer any need to adjudicate;
– dismiss the application;
– order the applicant to pay the costs.
Law
41 In support of its application for annulment, the applicant relies on five pleas in law, alleging respectively:
– infringement, with regard to the initiation of the investigation, of Article 5(7) and (9) of the basic regulation, and Articles 5.1 and 5.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the anti-dumping agreement’), which is contained in Annex 1 A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3);
– a manifest error of assessment and infringement of Article 2(3) and (5) and Article 18(4) of the basic regulation, and infringement of the antidumping agreement, with regard to the calculation of the normal value;
– infringement of Article 2(10) of the basic regulation, infringement of the antidumping agreement, and infringement of Article 253 EC, with regard to drawback adjustment in the comparison of the normal value and export price;
– a manifest error of assessment and infringement of Article 3(1), (2), (3) and (5), of the basic regulation, and infringement of the antidumping agreement, with regard to the determination of material injury; and
– a manifest error of assessment and infringement of Article 3(6) and (7) of the basic regulation, and infringement of the antidumping agreement, with regard to the establishment of a causal link between the allegedly dumped imports and the alleged injury.
The applicant’s continuing interest in bringing proceedings
42 At the hearing, the institutions claimed that questions relating to the jurisdiction of the EU Courts should, as appropriate, be raised ex officio. In that regard, the antidumping duties imposed under the contested regulation expired on 2 March 2009, meaning that the exports of the product concerned are no longer subject to them. Nor can the applicant justify its interest in bringing proceedings by an action for damages for any harm caused by the application of those duties, since the deadline for bringing any such action, in accordance with Article 46 of the Statute of the Court of Justice of the European Union, expired at the latest on 1 May 2014. The possibility of reimbursement of the antidumping duties under Article 236 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) is time-barred upon expiry of a three-year deadline as from the date on which the debtor was notified of the amount of the duties.
43 First, the applicant considers that the objection alleging that it no longer has an interest in bringing proceedings must be rejected as out of time. Furthermore, it puts forward five arguments in order to challenge the substance of that objection. First, the applicant argues that it has an interest in succeeding in the present case, in order to recover the costs from the institutions. Secondly, it has an interest in seeking redress, given the length of the proceedings before the Court. Thirdly, an importer related to the applicant in the EU market, namely GTM (Europe) Ltd, established in Manchester (United Kingdom), submitted an application to the Belgian customs authorities for reimbursement of antidumping duties paid on imports of the product concerned between August 2007 and March 2009; that application was suspended by those authorities pending the outcome of the present dispute. Fourthly, the applicant has an interest in ensuring that the same errors are not committed in the future. Fifthly, the continuation of the present proceedings could serve to restore its reputation. Moreover, with reference to the judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council (T‑299/05, EU:T:2009:72, paragraphs 56 and 57), the applicant claims, in essence, that its rights of defence would be infringed if the institutions could escape the Court’s review because the measures under appeal had expired before those proceedings were closed.
44 In that regard, first, the institutions maintain that case-law has never recognised an interest in bringing proceedings which consists solely in the desire to recover costs. If such an interest were to be recognised, it would never be possible to find that there is no need to adjudicate when the applicant is a private person, since Article 19 of the Statute of the Court of Justice of the European Union requires any private person to be represented by a lawyer. Secondly, the length of the proceedings cannot justify the applicant’s interest in bringing proceedings in the present case. To that end, it should instead bring a separate action for compensation against the Court of Justice of the European Union. Thirdly, the applicant may not rely before the Court on the existence of a related importer whose existence was not disclosed during the investigation. In any event, while case-law requires a personal interest and the demonstration of legal consequences for the applicant, the interest of that related importer in receiving reimbursement of the antidumping duties in question is not a personal interest of the applicant but of the subsidiary. Likewise, any reduction in the applicant’s dividends may be analysed from the point of the view of the applicant as a financial consequence only and not a legal consequence. Moreover, the company in question was at liberty to apply for reimbursement of the antidumping duties before the national courts, which could have referred a question to the Court of Justice for a preliminary ruling. Fourthly, the interest in preventing the same instances of unlawfulness from occurring in the future is hypothetical and the alleged errors vitiating the contested regulation are not liable to recur independently of the circumstances of the case which gave rise to the present action. In particular, the applicant has neither cooperated nor kept its accounts in accordance with the generally accepted rules, and has provided misleading information.
45 As a preliminary point, by virtue of Article 131(1) of the Rules of Procedure of the General Court, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order. Accordingly, the applicant may not ask the Court to reject as inadmissible the institutions’ request that it confirm the applicant’s continuing interest in bringing proceedings on the ground that it is out of time.
46 According to the Court’s settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future, hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 55 to 57 and the case-law cited).
47 If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the Court on the merits cannot bring him any benefit (see order of 14 April 2015, SolarWorld and Solsonica v Commission, T‑393/13, not published, EU:T:2015:211, paragraph 35 and the case-law cited).
48 An interest in bringing proceedings is therefore an essential and fundamental prerequisite for any legal proceedings (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 58 and the case-law cited).
49 Therefore, the applicant must justify in a relevant manner its continuing interest in bringing proceedings (see, to that effect, judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraphs 27 and 28 and the case-law cited).
50 In various circumstances the Court has acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by it has ceased to have effect in the course of proceedings. In particular, the Court has therefore held that an applicant may retain an interest in claiming the annulment of a decision either in order to be restored to his original position or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (see order of 14 April 2015, SolarWorld and Solsonica v Commission, T‑393/13, not published, EU:T:2015:211, paragraph 36 and the case-law cited).
51 It is apparent from that case-law that the maintenance of an applicant’s interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (see order of 14 April 2015, SolarWorld and Solsonica v Commission, T‑393/13, not published, EU:T:2015:211, paragraph 37 and the case-law cited).
52 In the present case, first, it is apparent from the case-law referred to in paragraph 46 above that an interest in bringing proceedings supposes that annulment of the contested act is capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. The annulment of the contested regulation must, in itself, confer an advantage on the applicant. Any annulment does not merely confer, in itself, on the applicant a right to recovery of the costs. As is apparent from Article 134(1) of the Rules of Procedure, a specific application must be made for unsuccessful parties to be ordered to pay the costs. Accordingly, such an application comes under a different head of claim from that seeking annulment of the contested act. Moreover, under Article 135(2) of the Rules of Procedure, even a successful party may in certain circumstances be ordered to pay the costs. Nor can it be claimed that an applicant has brought an action before the Court for the purpose of recovering its costs. Accordingly, the interest claimed by the applicant in seeking recovery of the costs cannot be regarded as justifying the continuation of its interest in bringing annulment proceedings in the present case.
53 Secondly, the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy (see judgment of 26 November 2013, Gascogne Sack Deutschland v Commission, C‑40/12 P, EU:C:2013:768, paragraphs 86 to 90 and the case-law cited). It follows that the applicant may not invoke the alleged excessive duration of the proceedings before the General Court in order to justify its continuing interest in bringing proceedings.
54 Thirdly, it is apparent from the judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 84) that the interest in bringing proceedings of a company which is the main shareholder in a subsidiary merges with the subsidiary’s interest in bringing proceedings. The General Court considers that the applicant has proved to the requisite legal standard that it was, through another company which it controlled, namely Gul Ahmed International LTD FZC, which is established in Sharjah (United Arab Emirates), the main shareholder in GTM (Europe), which actually submitted the request to the Belgian authorities for reimbursement of the antidumping duties paid on the imports of the product concerned as from August 2007, which suspended the proceedings pending the outcome of the present dispute. Those findings are moreover not contested by the institutions. The information provided by the applicant has also made it possible to determine that GTM (Europe) had been registered on 5 March 2003, under the name M.S.V. LTD, that is to say five months after the end of the investigation period and of the period considered, on 30 September 2002. The institutions may not therefore claim that that company’s data could have been used during the investigation for the purposes of calculating the turnover or export price. Nor have the institutions stated how the failure to indicate the existence of that subsidiary during the investigation could affect its progress or outcome. There is accordingly no reason to refuse the applicant the right to refer in the present proceedings to the application for reimbursement made by its subsidiary GTM (Europe). However, that application for reimbursement, on which the applicant bases its interest in bringing proceedings, concerns antidumping duties for imports as from August 2007. As stated in paragraph 14 above, the contested regulation was amended by Regulation No 695/2006, which reduced, as from 7 May 2006, the antidumping duties applicable to the imports of the product concerned by the applicant from 13.1% to 5.6%. Therefore, the antidumping duties to which that application for reimbursement relates were paid under Regulation No 695/2006. That regulation was adopted following a review of the contested regulation, which was restricted to dumping and based on a new investigation period between 1 April 2003 and 31 March 2004. The applicant took part in that investigation as one of the sampled exporting producers. The findings of the contested regulation relating to other questions including the initiation of the investigation and the existence of injury and a causal link have not been changed. It follows that any annulment of the contested regulation on the basis of the second or third plea in law, alleging errors in determining the normal value and comparing that value with the export price, respectively, can have no effect on the application for reimbursement on which the applicant relies and which forms the basis of its continuing interest in bringing an action. Accordingly, the existence of the application for reimbursement on which the applicant relies can justify its interest in bringing an action only in so far as concerns the first, fourth and fifth pleas in law. To the extent that, in addition to that application for reimbursement, the applicant refers to other applications for reimbursement, in respect of which it has, moreover, provided no evidence, it must be noted that it is for the applicant to justify in a relevant manner its continuing interest in bringing an action. The applicant was therefore required to provide in its reply of 10 December 2015 all the documents which it considered relevant in order to prove its continuing interest in the outcome of the present dispute.
55 Fourthly, it follows from the case-law of the Court of Justice that the applicant may retain an interest in seeking the annulment of an act of an EU institution to prevent its alleged unlawfulness recurring in the future. That interest in bringing proceedings follows from the first paragraph of Article 266 TFEU under which the institutions whose act has been declared void are required to take the necessary measures to comply with the judgment of the Court. However, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances which have given rise to the action brought by the applicant (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 50 to 52 and the case-law cited).
56 Since the applicant relies on five pleas in law in support of the action, it is necessary to establish whether the unlawfulness alleged is liable to recur in the future independently of the circumstances of the present case (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 55).
57 However, the applicant has not submitted any specific arguments in order to show that the same alleged infringements are liable to recur independently of the circumstances of the present case. Given that it is for the applicant to justify in a relevant manner its continuing interest in bringing proceedings, that lack of argument, in itself, is a reason for rejecting its claim.
58 In any event, the findings of the contested regulation, whose legality is disputed by the applicant, are closely linked to the particular circumstances of the present case. In the first place, the decision to initiate the investigation was taken in view of the specific situation as described in the complaint at the moment it was lodged. In the second place, it is, in essence, on account of the failure of the applicant’s accounts to comply with the generally accepted accounting principles of Pakistan and the absence of sufficient cooperation on the part of the applicant that the normal value was constructed using other bases or reasonable methods, by virtue of Article 2(3), (5) and (6) of the basic regulation, and data available in accordance with Article 18(1) of that regulation. The alleged errors originate from the situation which gave rise to the present case and are specific to it. In the third place, the adjustment relating to duty drawback under Article 2(10) of the basic regulation has been partially rejected, since the applicant’s relevant application was not, in the present case, supported by appropriate evidence. In the fourth place, the existence of injury suffered by the EU industry was noted in the light of the specific situation in which that industry found itself during the period considered. Likewise, in the fifth place, the analysis of other factors within the meaning of Article 3(7) of the basic regulation also depended inevitably on the circumstances existing during that period.
59 Fifthly, the applicant, has not in any way developed its claim relating to the restoration of its reputation. Given that it is for the applicant to justify in a relevant manner its continuing interest in bringing proceedings, that lack of argument, in itself, is a reason for rejecting its assertion.
60 It follows that the applicant has demonstrated the continuing relevance of its interest in bringing proceedings only with regard to the first, fourth and fifth pleas in law (see paragraph 54 above). Accordingly, there is no longer any need to adjudicate on the second and third pleas in law.
Admissibility
The admissibility of the applicant’s written observations of 29 January 2014
61 Under Article 119(1)(a) of the Rules of Procedure of 2 May 1991, an applicant may lodge written observations within two months from the service upon him of the judgment of the Court of Justice. That time limit is to be extended on account of distance by a period of ten days, in accordance with Article 102(2) of the Rules of Procedure of 2 May 1991. Under Article 101(1)(a) to (c) of the Rules of Procedure of 2 May 1991, where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place is not to be counted as falling within the period in question. A period expressed in weeks, months or years is to end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the period is to be calculated occurred or took place.
62 As apparent from the acknowledgement of receipt by the applicant’s representative, the judgment of the Court of Justice was received on 18 November 2013. Therefore, the two-month time limit provided for in Article 119(1)(a) of the Rules of Procedure of 2 May 1991 expired on 18 January 2014. The extension of that time limit under Article 102(2) of the Rules of Procedure of 2 May 1991 extended the date of expiry of the time limit for lodging those observations to 28 January 2014, that is to say the day before they were lodged (see paragraph 29 above), with the result that they are inadmissible.
The admissibility of the Council’s written observations of 15 May 2014
63 The applicant submits that the Council’s observations on the consequences of the judgment given by the Court of Justice go beyond the purpose of those observations and that they must be declared inadmissible.
64 The Council replies that it submitted its observations on the consequences of the judgment of the Court of Justice and put them in the proper context of all the pleas in law raised by the applicant, but did not put forward any new argument.
65 In that regard, it is sufficient to note, as the Council submits, that the arguments put forward in its written observations of 15 May 2014 do not go beyond the scope of its defence and rejoinder. It is therefore not necessary to rule on their compliance with Article 119(1)(b) of the Rules of Procedure of 2 May 1991.
Substance
66 It should be noted that, in so far as the applicant has demonstrated its continuing interest in bringing proceedings only with regard to the first, fourth and fifth pleas in law, there is no need to rule on the second and third pleas in law (see paragraph 60 above).
The first plea in law, alleging infringement, as regards the initiation of the investigation, of Article 5(7) and (9) of the basic regulation and Articles 5.1 and 5.2 of the antidumping agreement
67 The first plea in law comprises two parts.
– The first part of the first plea in law
68 According to the applicant, the Commission opened the investigation in disregard of the commitment made on 14 November 2001 during the WTO Ministerial Conference in Doha (Qatar) (‘the Doha decision’), according to which:
‘Investigating authorities shall examine with special care any application for the initiation of an antidumping investigation where an investigation of the same product from the same Member resulted in a negative finding within the 365 days prior to the filing of the application and that, unless this pre-initiation examination indicates that circumstances have changed, the investigation shall not proceed.’
69 Following a complaint filed by Eurocoton, definitive antidumping duties were imposed on the Pakistani producers by Regulation No 2398/97. That proceeding was terminated on 30 January 2002 after being declared unlawful by the WTO Dispute Settlement Body. The present proceeding was initiated only ten months after the termination of the earlier proceeding.
70 The institutions dispute the applicant’s arguments.
71 In that regard, it is settled case-law that, given their nature and structure, the WTO agreements, including decisions adopted thereunder, are not, in principle, among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions. It is only where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the EU measure in question in the light of the WTO rules. To accept that the Court has direct responsibility for the task of ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the commercial partners of the European Union enjoy. It is not in dispute that some of the contracting parties, which are among the most important commercial partners of the European Union, have specifically concluded from the subject matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if admitted, would risk introducing an anomaly in the application of the WTO rules (see judgments of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraphs 39, 40 and 53 and the case-law cited, and of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 38 and 39 and the case-law cited).
72 In that regard, first, no act adopted by the EU institutions before the present appeal was brought intended to implement the Doha decision or refers to it expressly within the meaning of the case-law cited in paragraph 71 above. Secondly, the applicant has not claimed that there is such an act. In any event, according to recital 13 and Article 2 of Regulation No 160/2002 amending Regulation (EC) No 2398/97, the revised calculation showed that no dumping existed for exports of the product concerned made by any sampled companies in Pakistan during the investigation period between 1 July 1995 and 30 June 1996. Consequently, the proceeding had to be terminated for imports of that product originating in Pakistan. The Council therefore is correct in claiming that, in so far as the pre-initiation examination of the present investigation indicated that the circumstances had changed in comparison with the previous investigation, it was entitled to initiate the present proceedings in compliance with the Doha decision.
73 The first part of the first plea must therefore be rejected.
– The second part of the first plea in law
74 The applicant claims, in essence, that, by initiating the antidumping proceeding in question, despite the absence, in the complaint, of sufficient evidence of dumping and of the resulting injury, the Commission infringed Article 5(7) and (9) of the basic regulation.
75 According to the applicant, those provisions must be read in the light of the antidumping agreement, Article 5.3 of which provides that ‘the authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation’. In that regard, the report of the WTO panel (‘the panel’) entitled ‘Guatemala — Definitive anti-dumping measures on grey Portland cement from Mexico’, adopted on 24 October 2000 (WT/DS156/R, paragraph 8.45), states that ‘the evidence must be such that an unbiased and objective investigating authority could determine that there was sufficient evidence of dumping within the meaning of Article 2 to justify initiation of investigation’. As regards the injury, that report states that an investigating authority ‘must have before it evidence of threat of material injury, as defined in Article 3 [of the anti-dumping agreement], sufficient to justify the initiation of an investigation’. Furthermore, as explained by the panel report entitled ‘United States — Final dumping determination on softwood lumber from Canada’, adopted on 13 April 2004 (WT/DS264, paragraph 7.111), the investigating authority should request clarification from the complainant in order to ensure the reliability of the information provided for the purpose of initiating an investigation.
76 According to the applicant, the complaint does not contain sufficient evidence of the existence of dumping, injury or the causal link.
77 As regards the existence of dumping, in the first place, the applicant submits that even though the product concerned includes a wide variety of product types, the costs of which vary greatly, the complainant’s calculation related only to one specific type of product referred to as ‘20/20 60/60’. That type of product is not representative, for two reasons. First, to the applicant’s knowledge, it was not sold by any of the Pakistani exporting producers during the investigation period. Secondly, the product type referred to as ‘22/22 60/60’ is not, contrary to the assertions made by the Council, the applicant’s main export item to the European Union, given that exports thereof represent only 6% of all exports, and a weight of 10% below that of the product type ‘20/20 60/60’. The panel report entitled ‘United States — Final dumping determination on softwood lumber from Canada’ adopted on 13 April 2004 (WT/DS264, paragraph 7.123), states that evidence of dumping regarding an insignificant sub-set of the imported product would not be sufficient to justify the initiation of an investigation.
78 In the second place, the applicant claims that the normal value presented in the complaint is not credible, in so far as it was constructed on the basis of the costs of a single Italian mill, whose costs of yarn, interest rates and energy prices, which are the most significant elements of the cost structures, are, despite the various adjustments made, considerably higher than the costs of the Pakistani producers. In particular, and contrary to the Council’s view, the raw material prices represent not 40%, but 65% to 70% of the yarn prices. The remaining 30% to 35% corresponded to general costs. Accordingly, the applicant argues that the institutions relied on general costs representing 60% of the yarn prices to construct the normal value, which is much higher than common industry standards. As far as interest rates are concerned, the level estimated by the Council of 8% does not take into account the fact that the Pakistani exporters were entitled to borrow in foreign currencies and that the US dollar (USD) LIBOR rates at that time ranged between 2.5% and 3%. Likewise, the energy price of USD 0.009 per kwh, referred to by the complainant in Annex A 14, does not correspond to the Pakistani prices in the period concerned. It represents only the cost of energy used for scouring and bleaching 1 kg of fabric. This is not a rate per hour. Moreover, no explanation has been provided, nor any analysis conducted as regards the adjustments, either by the complainant or by the Commission.
79 In the third place, the export price, as indicated in the complaint, is no more reliable, since it was based only on a small number of samples and was undervalued by approximately 40% compared with the price indicated by the Statistical Office of the European Union (Eurostat), whose data are generally regarded by the Commission as credible. By accepting those figures, the Commission failed to verify that the evidence presented by the complainant is sufficient.
80 As regards the injury and the causal link, in the first place, the applicant claims, in the first place, that the data presented by the complainant, in particular as regards the evolution of prices, profits, production, production capacity and sales do not present a negative trend. The Commission did not submit an analysis to the effect that, despite the positive development of many economic indicators, the complaint contained insufficient overall evidence of material injury.
81 In the second place, the applicant maintains, first, that the complaint did not take into account the impact, in its view, on the injury and the causal link, of the abolition of the previous antidumping duties and the granting of a tariff preference under the generalised scheme of preferences, and, secondly, that the Commission overlooked the alleged effect of the ‘offshoring’ of the EU industry on the injury caused to that industry, although the Commission had clearly been aware of that ‘offshoring’, as demonstrated also by an article published in 2001, drafted by one of its officials, attached to the reply.
82 In the third place, the applicant maintains, in essence, that neither the complaint nor the Commission took into account, when examining causality, the power of mass-production buyers, imports from third countries such as India and Egypt, and the EU industry’s focus on niche products.
83 The institutions dispute the applicant’s arguments.
84 First of all, recital 2 of the contested regulation states as follows:
‘... The complaint contained prima facie evidence of the existence of dumping of the said product and of material injury resulting therefrom, which was considered sufficient to justify the initiation of a proceeding.’
85 As regards the notice of initiation, points 3 to 5 are worded as follows:
‘3. Allegation of dumping
The allegation of dumping for Pakistan is based on a comparison of a constructed normal value with the export prices of the product concerned to the [European Union].
On this basis, the calculated dumping margin is significant.
4. Allegation of injury
The complainant has provided evidence that imports of the product concerned from Pakistan have increased overall in absolute terms and in terms of market share.
It is alleged that the volumes and the prices of the imported product concerned have had, among other consequences, a negative impact on the market share held by the [EU] industry, resulting in substantial adverse effects on the overall performance, the financial situation and the employment situation of the [EU] industry.
5. Procedure
Having determined, after consulting the Advisory Committee, that the complaint has been lodged by or on behalf of the EU industry and that there is sufficient evidence to justify the initiation of a proceeding, the Commission hereby initiates an investigation pursuant to Article 5 of the basic regulation ...’
86 In its 38 pages, the complaint provides ample figures and analyses showing why the complainant considered that the imported products in question were the subject of dumping and caused significant injury to the EU industry.
87 Specifically, that document contained evidence relating to the product concerned (page 2), the Pakistani exporting producers (page 3), dumping (page 4), including the normal value (pages 4 and 28 to 38), the export price (page 5) and the dumping margin (page 6), injury (page 7), including the trends in volume and market shares of imports originating in Pakistan, India and Egypt since 1997 (page 7) showing the increase both in absolute volume and in market share of imports from Pakistan (page 8), the import prices, undercutting of the prices charged by the EU industry and of other imports by those imports from Pakistan (pages 10 to 13), loss of market share of the EU industry (pages 14, 15 and 19), increases in prices and production costs, profitability and performance of the EU industry (page 15), the decline in investments in that industry (page 16) and the evolution of a number of EU industry economic indicators, and causality (pages 20 to 23), including examination of the effects of imports from countries other than Pakistan.
88 The passages of the contested regulation and the notice of initiation cited clearly show that the Commission, in essence, adopted the analysis made in the complaint, from which it concluded that it contained prima facie evidence of dumping of the product concerned and of material injury resulting therefrom, which it considered sufficient to justify the initiation of a proceeding.
89 In that regard, it should be noted that it is settled case-law that the provisions of the basic regulation must be interpreted, in so far as possible, in the light of the corresponding provisions of the antidumping agreement (see judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 38 and the case-law cited). Although the interpretations of the antidumping agreement by the WTO’s Dispute Settlement Body cannot bind the Court in its assessment as to whether the contested regulation is valid (see, to that effect, judgment of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraph 54), there is nothing to prevent the Court from referring to them, where — as in the present case — provisions of the basic regulation have to be interpreted (see judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 39 and the case-law cited).
90 In the present case, Article 5 of the basic regulation constitutes, in essence, the transposition into EU law of Articles 5.1 to 5.9 and Article 6.1.3 of the antidumping agreement, in the light of which it must be interpreted in so far as possible. One of the objectives of Article 5 of the basic regulation is to reconcile the interest of the EU industry in being able to activate protection mechanisms against dumped imports originating from third countries with the need to prevent exporters to the European Union from being subjected to antidumping investigations which are not justified on objective grounds. Consequently, the existence of sufficient evidence of dumping and the injury resulting therefrom is always a prerequisite for the initiation of an antidumping proceeding (see, to that effect, judgment of 7 December 1993, Rima Electrometalurgia v Council, C‑216/91, EU:C:1993:912, paragraphs 14 to 16).
91 In order to fulfil that objective, Article 5 of the basic regulation provides, in paragraphs 7 and 9 respectively, of which infringement is alleged, that ‘a complaint shall be rejected where there is insufficient evidence of either dumping or of injury to justify proceeding with the case’ and that the Commission must initiate an antidumping proceeding within 45 days of the lodging of the complaint where it is apparent that there is sufficient evidence to justify the initiation of a proceeding.
92 As regards the requirement of sufficient evidence, Article 5 of the basic regulation sets out, first, in paragraph 2 thereof, the information which must be contained in the complaint and, secondly, in paragraph 3 thereof, the obligations of the Commission in examining that information. Therefore, the complaint must contain evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury, that obligation nevertheless being limited to information which may be ‘reasonably available to the complainant’.
93 The WTO panel report entitled ‘United States — Final dumping determination on softwood lumber from Canada’ adopted on 13 April 2004 (WT/DS264, paragraphs 7.53 and 7.54) stated that a complaint need only include information on the relevant matters which is reasonably available to the applicant and which it deemed necessary to substantiate its allegations of dumping, injury and causality. As the purpose of the complaint is to provide an evidential basis for the initiation of the investigative process, it would seem unnecessary to require an applicant to submit all information reasonably available to it to substantiate its allegations.
94 Furthermore, the quantity and quality of the information provided by the complainant do not need to be at the level required for a preliminary or final determination of the existence of dumping, injury or a causal link. The information provided in the complaint is not therefore required to constitute irrefutable evidence of the existence of the facts alleged. Moreover, the sufficiency of the information depends on the circumstances of each case and must, consequently, be assessed on a case-by-case basis (see, to that effect, the WTO panel report entitled ‘Mexico — Anti-dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States’, adopted on 28 January 2000 (WT/DS132/R, paragraph 7.57) and the panel report entitled ‘Mexico — Anti-dumping duties on steel pipes and tubes from Guatemala, adopted on 8 June 2007 (WT/DS331/R, paragraphs 7.22 to 7.24)).
95 Finally, the complaint is not required to contain an analysis of the information (see, to that effect, the WTO panel report entitled ‘Mexico — Anti-dumping investigation of high fructose corn syrup (HFCS) from the United States’, adopted on 28 January 2000 (WT/DS132/R, paragraph 7.76)).
96 As regards the Commission’s obligations, first, it should be noted that it must, in accordance with Article 5(3) of the basic regulation, analyse ‘as far as possible’ the accuracy and adequacy of the evidence which must, by virtue of Article 5(2), be contained in the complaint (see, to that effect, the WTO panel report entitled ‘Mexico — Anti-dumping duties on steel pipes and tubes from Guatemala, adopted on 8 June 2007 (WT/DS331/R, paragraphs 7.21)). It follows that the Commission cannot be required to assess, within the context of Article 5(3) of the basic regulation, information or factors which go beyond what the complainant is required to provide pursuant to Article 5(2). However, the Commission is not required to limit itself to the information provided in the complaint, with the result that it may gather information of its own initiative in order to satisfy the criterion set out in Article 5(3) of the basic regulation concerning the sufficiency of the evidence necessary in order to initiate an investigation (see, to that effect, the WTO panel report entitled ‘Guatemala — Definitive anti-dumping measures on grey Portland cement from Mexico’, adopted on 24 October 2000 (WT/DS156/R, paragraph 8.62)).
97 Moreover, certain procedural constraints on the Commission under the basic regulation may prevent it from carrying out exhaustive checks and analyses of the information provided in the complaint. Accordingly, the Commission, under Article 5(9) of the basic regulation, has only 45 days as from the lodging of the complaint to consult the Advisory Committee and decide to initiate the investigation. That time limit may not be sufficient to carry out full checks and analyses of all the information contained in the complaint. Such a duty of checking and analysis would also risk making the complaint public even before the notice of initiation is published, which would infringe Article 5(5) of the basic regulation.
98 Furthermore, it should be noted that, in the sphere of measures to protect trade, the EU institutions enjoy a wide discretion on account of the complexity of the economic, political and legal situations which they have to examine. It follows that review by the Court concerning those assessments must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of those facts or misuse of power. However, where the EU institutions have such a wide power of appraisal, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision (see judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraphs 41 to 43 and the case-law cited).
99 The applicant’s arguments should be examined in the light of those considerations.
100 In the first place, as regards the applicant’s claim that the product ‘20/20 60/60’ is not representative of exports from Pakistan and of its own exports to the EU market, it should be pointed out, first, that the basic regulation does not require, where the product concerned contains several types of products, as in the present case, that the complaint should provide information on all those product types. Rather, it follows from Article 5(2) and (3) of the basic regulation that the evidence relating to dumping of the product as a whole must be sufficient for the Commission to be able to conclude that there is sufficient evidence to justify the initiation of the investigation. Therefore, evidence relating to dumping of an insignificant sub-category of the product imported would not be sufficient in that context (see, to that effect, the panel report entitled ‘United States — Final dumping determination on softwood lumber from Canada’ adopted on 13 April 2004 (WT/DS264, paragraph 7.123)).
101 In the present case, it is not disputed that the product type referred to as ‘20/20 60/60’ belongs to the category of products known as ‘printed, 100% cotton bed linen’ which is commonly traded and corresponds to the product under investigation. While the applicant claims that it does not export that product type and that it represents only an insignificant sub-category of the product imported from Pakistan, first, it should be noted that the evidence required need not necessarily relate to dumping practices on the part of each one of the undertakings under investigation. Antidumping proceedings relate in principle to all imports of a certain category of products from a third country and not to imports of products from specific undertakings (judgment of 7 December 1993, Rima Electrometalurgia v Council, C‑216/91, EU:C:1993:912, paragraph 17). Secondly, by merely referring to its own reply to the antidumping questionnaire, the applicant has not provided any evidence or even an indication that that product type is not commonly exported by the Pakistani producers to the EU market. In any event, contrary to what the applicant claims, slight differences in terms of number of threads and weight between the product type referred to as ‘22/22 60/60’, manufactured and exported by the applicant itself to the EU market and type ‘20/20 60/60’ cannot suffice to consider those product types as not belonging to the same category of products for the purposes of the decision to initiate an antidumping proceeding. In that regard, the applicant has not claimed, or still less proved, that the information contained on page 2 of the complaint is manifestly incorrect, in so far as the product types in question share, in essence, the same physical characteristics and the same use, they may be substituted for one another, with the result that they are in competition, and none of those products are exclusively used by a particular category of end-users. Consequently, the applicant’s arguments are not capable of showing that the Commission’s view that the information provided in the complaint with regard to the product type in question was sufficient to initiate the investigation is vitiated by a manifest error of assessment.
102 In the second place, as regards the argument that the normal value presented in the complaint is not credible, on the ground that it was constructed on the basis of the costs of a single Italian mill, it must be noted, first, that Article 5(2) of the basic regulation does not require the complaint to contain information which is not reasonably available to the complainant. Certain information, including that relating to the cost structure of the exporting producers can only be accessed with considerable difficulty, or not at all, by EU producers. It is not therefore unreasonable to construct the normal value in the complaint on the basis of data which comes from an EU producer.
103 Next, the applicant has in no way substantiated its claims as regards the costs used for constructing the normal value as stated in the complaint. It has submitted no evidence capable of showing that the percentage representing the price of raw materials in the yarn price, the ten-year period for depreciation or the price of the energy used are incorrect. Nor has the applicant provided any evidence demonstrating that the Pakistani producers had actually borrowed, during the period in question, abroad rather than in Pakistan and, moreover, at a US dollar (USD) LIBOR rate of between 2.5% and 3%.
104 Finally, in cases where it is apparent that the information provided in the complaint does not permit a fair comparison between the normal value and the export price, the Commission must take that into account in its assessment, inter alia in the form of adjustments, or request further information (see, to that effect, the panel report entitled ‘Guatemala — Anti-dumping investigation regarding Portland cement from Mexico’, adopted on 19 June 1998 (WT/DS60R, paragraph 7.64)) and that entitled ‘Guatemala — Definitive anti-dumping measures on grey Portland cement from Mexico’, adopted on 24 October 2000 (WT/DS156/R, paragraph 8.40)). In that regard both the complainant and the Commission took into account the cost differences which may exist between the reference Italian mill and the Pakistani exporting producers in the form of a downward adjustment of 50% of the costs where the actual Pakistani costs were not available. The applicant has not put forward any argument capable of demonstrating that the adjustment made was insufficient. It follows that the applicant has not demonstrated that the Commission committed a manifest error of assessment in taking the view that the information concerning the costs of an Italian mill was sufficient to justify the initiation of the investigation.
105 In the third place, as the Council rightly maintains, the applicant has not demonstrated that the Commission committed a manifest error of assessment in considering that the evidence concerning the export prices was sufficiently accurate and adequate to justify the initiation of the investigation. As explained in paragraphs 100 and 101 above, the Commission was entitled to rely on the information contained in the complaint, even though it concerned only one of the product types concerned. The applicant has not disputed that the export price provided by Eurostat represented the average of a large number of product types. Therefore, the export price of the product type referred to in the complaint may not reasonably be compared to the export price provided by Eurostat so as to prove that the Commission relied in its assessment on manifestly inaccurate data. Moreover, the applicant cannot reasonably criticise the allegedly small number of samples on which the export price calculation in the complaint is based, given that that number depends on information which could be reasonably available to the complainant. As regards trade concerning competitors from a third country, the availability of such information is far from evident. Furthermore, the applicant has not, in any event, proved that the export price calculation contained in the complaint is inaccurate.
106 In the fourth place, as regards the applicant’s arguments to the effect that, first, the information contained in the complaint was not sufficient to establish injury in respect of the EU industry and, secondly, the Commission did not submit any analysis explaining how the indicators which developed positively were offset by indicators which developed negatively, it must be noted that Article 5 of the basic regulation does not require all the factors entering into the assessment of injury to develop negatively in order to initiate an investigation. Next, it follows from points 4 and 5 of the notice of initiation, read in the light of recital 2 of the contested regulation, that the Commission’s decision to initiate the proceeding in question was based on evidence indicating an increase in absolute terms and in terms of market share of imports of the product concerned from Pakistan and on its analysis to the effect that the volume and price of the imported product concerned have, inter alia, had a negative impact on the market share held by the EU industry, resulting in substantial adverse effects on the overall performance, the financial situation and the employment situation of the EU industry. Finally, it must also be noted that Article 5(3) of the basic regulation does not require the Commission to analyse all the information available, which would be for the investigation under Article 6 of the basic regulation. Therefore, taking into consideration all the factors which have developed negatively, which are set out in the complaint and are significant indicators of the state of the EU industry, such as reduction in market share, profitability and performance or investments, the Commission was entitled, without committing any manifest error of assessment and without failing in its duty to state reasons, to consider that the information provided concerning the injury suffered by the EU industry in the complaint could justify the initiation of the investigation.
107 In the fifth place, as evident from the analysis made in the context of the fourth plea in law (paragraphs 128 to 134 below), the abolition of the previous antidumping duties and the granting of a tariff preference under the generalised scheme of preferences are not factors which must be taken into consideration, as such, in the examination of injury. Moreover, it follows from the judgment of 14 November 2013, Council v Gul Ahmed Textile Mills (C‑638/11 P, EU:C:2013:732), that nor are those two measures ‘other factors’ within the meaning of Article 3(7) of the basic regulation.
108 As regards the argument alleging that ‘offshoring’ of the EU industry influenced its injury, the applicant has provided, in the application initiating proceedings, no evidence of that fact, its extent, the volume of the products on the EU market emanating from those offshore sources and of its actual influence on the injury suffered by the EU industry in question. It is only in annex to the reply that it provided, in Annex C 1, an article entitled ‘The textile and clothing industry in the EU’ by a Commission official in DG Enterprise.
109 In that regard, first, Article 48(1) of the Rules of Procedure of 2 May 1991 provides that while the parties may offer further evidence in support of their arguments in reply or rejoinder, they must give reasons for the delay in offering it. The applicant has claimed that it considered the information concerning its claims to be so apparent and known to all that it was not necessary to develop it in the application. However, such reasoning cannot be accepted. The organisation and operational structures of the EU industries, including the bed-linen industry, cannot be regarded as well-known facts, which are likely to be known by anyone, or facts from generally available sources. It concerns rather information specific to the industry concerned. Therefore, the evidence contained in Annex C 1 must be rejected as inadmissible.
110 Secondly, under Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, and Article 44(1)(c) of the Rules of Procedure of 2 May 1991, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. It follows from the case-law of the Court of Justice that the ‘summary of the pleas in law’, which must be stated in any application, as provided for by those articles, means that the application must specify the nature of the grounds on which the application is based. Thus, in particular, it is necessary, for an action before the General Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. While it is true that the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraphs 39 and 40). In order to guarantee legal certainty and the sound administration of justice, the summary of the applicant’s pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent Court to rule on the action. Accordingly, it is not for the Court to seek and identify in the annexes the pleas in law on which it may consider the action to be based. Similar requirements are called for where a submission is made in support of a plea in law raised before the Court (judgments of 13 June 2013, Versalis v Commission, C‑511/11 P, EU:C:2013:386, paragraph 115, and of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, points 38 to 41). That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of 2 May 1991 also applies to the conditions for admissibility of a reply, which according to Article 47(1) of the Rules of Procedure of 2 May 1991 is intended to supplement the application (see, to that effect, judgments of 24 May 2012, MasterCard and Others v Commission, T‑111/08, not published, EU:T:2012:260, paragraph 69, and of 5 March 2014, HP Health Clubs Iberia v OHIM — Shiseido (ZENSATIONS), T‑416/12, not published, EU:T:2014:104, paragraphs 16 to 19).
111 By failing to specify the passages in the article in question capable, in the applicant’s view, of supporting its claims, the applicant has in fact confined itself to making a general reference which is not permitted pursuant to the case-law. Moreover, by substituting itself for the applicant in identifying passages of the annex in question which could support those claims, the Court could be led to neglect its duty of impartiality. Therefore, the general reference to that article must be considered to be inadmissible.
112 Moreover, even if that document ought to be taken into consideration, its relevance for the purpose of supporting the applicant’s arguments has not been established. First, it is apparent from the first page thereof that it was published in June 2001, that is to say over one year before the end of the period considered, on 30 September 2002. Changes which could have taken place at the end of that period are therefore not analysed in that document. Secondly, it follows from the note on page 2 of that article that it does not necessarily represent the Commission’s position. Thirdly, the article in question does not deal specifically with ‘offshoring’ in the EU industry and to an even lesser extent the bed-linen sector. No specific information as regards the alleged impact of that ‘offshoring’ of the EU industry in respect of the bed-linen sector could be inferred from it.
113 In any event, the Council correctly submits that, while it is possible that ‘offshoring’ is taking place in the textile industry in general, that does not necessarily mean that the same is also true for bed linen in particular.
114 Accordingly the applicant’s argument must be rejected.
115 In the sixth place, as regards the alleged failure, in the complaint, to analyse other known factors within the meaning of Article 3(7) of the basic regulation, such as the power of mass-production buyers, imports from third countries such as India and Egypt, and the EU industry’s focus on niche products, it must be noted that Article 5(2)(d) of the basic regulation provides that the complaint must contain ‘information on changes in the volume of the allegedly dumped imports, the effect of those imports on prices of the like product on the [EU] market and the consequent impact of the imports on the [EU] industry, as demonstrated by relevant factors and indices having a bearing on the state of the [EU] industry, such as those listed in Article 3(3) and (5)’. Contrary to the applicant’s claim, that provision does not provide that the complaint must provide information regarding factors capable of breaking the relationship of cause and effect between the dumped imports and the injury caused to the EU industry. If the EU legislature had intended that the complainant should also provide such information, it would have expressly stated as much. Nor does the basic regulation provide that the complainant must analyse the information submitted. That conclusion is corroborated by paragraph 7.76 of the panel report entitled ‘Mexico — Anti-dumping investigation of high fructose corn syrup (HFCS) from the United States’ (WT/DS132/R), adopted on 28 January 2000, to the effect that, while it is the case that some analysis of the information contained in the complaint would be helpful, Article 5.2 of the antidumping agreement does not lay down any obligation on the part of the complaint to provide it. Therefore, the applicant may not rely on an alleged failure to analyse, in the complaint, other factors within the meaning of Article 3(7) of the basic regulation in order to claim that it is inadequate.
116 Moreover, it must be noted that, contrary to the applicant’s claim, the complaint indeed contains an analysis of the volume of imports from India and Egypt and a comparison of those volumes with the imports from Pakistan (page 7), developments in their respective market shares (pages 8 and 18), the prices of those respective imports (pages 8 to 10) and the contribution of imports originating in India and other third countries to the injury (pages 19 to 21), as well as the conclusion that imports originating from countries other than Pakistan do not break the causal link between the alleged injury suffered by the EU industry and imports from Pakistan (page 21). As regards the alleged power of mass-production buyers and the EU industry’s focus on niche products, it should be noted that neither the complaint nor the Commission’s verification need assess all possible factors influencing the EU industry.
117 On the whole, the complaint is complete, even as regards the analysis the injury and causality. It follows that the applicant’s arguments are not capable of showing that the Commission committed a manifest error of assessment by relying on the information in it concerning the initiation of the antidumping proceeding in question, in order to determine, in accordance with the procedure referred to in Article 6 of the basic regulation, whether the complaint was well founded.
118 Consequently, the second part of the first plea in law must be rejected, as must, accordingly, the first plea in law in its entirety.
The fourth plea in law, alleging a manifest error of assessment and infringement of Article 3(2), (3) and (5) of the basic regulation, and Articles 3.1 and 3.4 of the antidumping agreement, with regard to the determination of material injury
119 First, the applicant claims that the Council committed a manifest error of assessment in concluding that the EU industry had suffered material injury. Despite the abolition of the previous antidumping duties and the establishment of tariff preferences for imports of the product concerned originating in Pakistan, most of the economic indicators demonstrated a positive trend. The applicant submits, in that regard, that the growth of the EU industry is the decisive indicator. Furthermore, the Council did not fulfil its obligation to state reasons, which it is specifically required to do in the present case, in so far as economic factors suggest that the EU industry did not suffer any material injury. The applicant argues that the Council therefore infringed Article 3(2), (5) and (6) of the basic regulation, as well as Articles 3.1 and 3.4 of the antidumping agreement.
120 In the first place, the applicant notes that the EU industry prices for the product concerned rose by more than 5% during the investigation period. While that increase could be explained by the conversion of the EU industry to high-end products, it does not constitute grounds for defence against dumped product imports, but a deliberate commercial strategy, since the prices increased more between 1999 and 2001, that is to say when the previous antidumping duties were still in force.
121 In the second place, the volume of EU industry sales had risen by 4% during the period concerned.
122 In the third place, the applicant maintains that the profitability of the EU industry has fallen only by a small amount, that is to say from 7.7% to 4.4%, which is explained by the abolition of the previous antidumping duties and the introduction of the generalised scheme of preferences in January 2002. It is significant that the profitability of the EU industry declined only after those two events, a factor which the institutions ought to have taken into consideration. Moreover, in so far as the institutions had taken the view that profitability of 3.5% in respect of Pakistani sales of the product concerned for export to the EU is reasonable in a competitive environment such as the EU market, profitability in absolute terms of 4.4% of the EU industry during the entire investigation period cannot be regarded as an indication of injury. The applicant submits that a level of profitability of 6.5%, considered appropriate by the contested regulation, since it corresponds to the average of the level of profitability obtained by the EU industry in the years 1999 and 2000, is not realistic, given the changes in conditions of the EU market, including, in particular, the abolition of the previous antidumping duties and the implementation of a generalised scheme of preferences. In that regard, the applicant argues that Council wrongly claims that the abolition of the duties is irrelevant in respect of the assessment of injury, in particular, if it is taken into account that the non-exhaustive list of factors and indices contained in Article 3(7) of the basic regulation includes the examination of the elements in context. The abolition of the customs duties on the relevant imports during the investigation period is a contextual factor which its, in itself, capable of having a significant impact on the EU market prices of the product concerned and, consequently, on the level of profitability that could be considered normal for the EU industry.
123 In the fourth place, the applicant argues that it is apparent from the contested regulation that investments decreased between 1999 and 2001, but have remained stable since then. The applicant submits that that data must be interpreted in the light of the fact that the market underwent significant changes between 1999 and the investigation period. The level of investments in 1999 was extremely high, reflecting a shift and significant increase in production capacity at a time when the EU industry was benefiting from the protection of the antidumping duties, which were later abolished. It is normal that investments decreased subsequently, particularly in so far as capacity utilisation fell when demand for high-end niche products stagnated with the general economic recession which began in 2000. The institutions did not take those factors into consideration. The trend in investments by the EU producers does not therefore indicate material injury in any way.
124 In the fifth place, the applicant submits that the contested regulation regards the data relating to stocks and capacity utilisation as unreliable. In any event, the fall in production capacity utilisation does not necessarily point to injury, given that the EU industry invested heavily in redirecting and expanding its production capacity at the beginning of the investigation period, while it was protected by the previous antidumping duties.
125 In the sixth place, the applicant claims that the contested regulation stated that, although EU industry salaries rose by 3.3%, consumer prices rose by 7.8%, meaning that salaries fell, in real terms, by 3.6%. However, the applicant maintains that the salary development in the EU bed-linen industry should not be compared with inflation, but rather with salary development in other sectors.
126 In the seventh place, the applicant claims that EU producers’ market share fluctuated within a range of 2 percentage points between 1999 and the investigation period, which does not constitute sufficient evidence of negative development. First, that fall is explained by greater growth in global consumption compared with the sales of the sampled EU producers. Secondly, it should have been anticipated, given that the previous antidumping duties were abolished, the generalised scheme of preferences was established, the EU industry was focusing on high-end products or demand was stagnant and the EU industry had moved production extensively offshore to Turkey and Eastern Europe.
127 The institutions dispute the applicant’s arguments.
128 As a preliminary point, it must be noted that the applicant, first, submits that the institutions did not correctly assess the effect of the abolition of the previous antidumping duties and the implementation of the tariff preferences for imports of the product concerned from Pakistan in their assessment of the injury and, secondly, claims that, had the institutions taken those factors into account, they would not have found that material injury had been suffered by the EU industry.
129 In that regard, it is necessary to refer to paragraphs 27 to 35 of the judgment of 14 November 2013, Council v Gul Ahmed Textile Mills (C‑638/11 P, EU:C:2013:732):
‘27 It is clear that the abolition of import duties of, first, 12% and, second, 6.7%, could have had the effect of facilitating and promoting the imports of the products concerned. However, the effect was on the dumped imports themselves.
28 It is apparent from the wording of Article 3(7) of [the basic regulation], in particular the words ‘Known factors … which are injuring the Community industry’, that that regulation requires the factors which are directly causing injury to be examined, which presupposes the existence of a direct causal link.
29 By contrast, in the present case, the changes to the legislative conditions under which the dumped imports take place cannot be regarded, as such, as causing injury. It is the imports themselves which are causing injury.
30 The dumped imports and the legislative conditions under which they take place are inseparable.
31 Therefore, the measures at issue which facilitate and promote imports are only indirect causes and cannot be regarded as ‘other factors’ within the meaning of Article 3(7) of the basic regulation.
32 That interpretation is consistent with the report of the WTO Panel of 28 October 2011, entitled ‘European Union — Anti-dumping measures on certain footwear from China’, which examined the issue of the causal link between the lifting of an import quota and injury in the light of Article 3.5 of the 1994 Anti-Dumping Code. At point 7.527 of that report, it was found that the lifting of an import quota, which allow[ed] for an increase in the volume of dumped imports, [was] not itself a factor causing injury.
33 Import quotas are legislative conditions under which imports take place, in the same way as are customs duties on imports.
34 In those circumstances, the General Court erred in law in holding that the two factors at issue constitute ‘other factors’ within the meaning of Article 3(7) of [the basic regulation].
35 However, that conclusion does not prejudge the question whether the factors at issue must be taken into account when examining whether there is injury in accordance with Article 3(2), (3) and (5) of [the basic regulation].’
130 It follows that, while legislative measures, such as those at issue in the present case, do not, in themselves, cause injury to the EU industry, their effects are on the dumped imports originating from Pakistan, those imports and the legislative conditions under which they take place being indissociable.
131 Under those conditions, and in so far as, through the factors listed in Article 3(3) and (5) of the basic regulation, the determination of injury, in accordance with Article 5(2), is based on positive evidence and includes an objective examination of the volume and effects of the dumped imports and their impact on the EU industry, the institutions are under no obligation to regard the two measures at issue as independent factors in the assessment of the existence of injury.
132 Any effects of legislative measures, such as those in question, are on the imports from Pakistan. Accordingly, by analysing the volume and effects of those imports on prices of similar products on the EU market and their impact on the EU industry, the institutions also took into account the effects of those measures.
133 That conclusion is not called into question by the fact that Article 3(5) of the basic regulation provides that the examination of the impact of the dumped imports on the EU industry includes an evaluation of all relevant economic factors and indices having a bearing on the state of that industry, including ‘factors affecting [EU] prices’. The WTO panel stated in its report entitled ‘Egypt — Definitive Anti-Dumping Measures on Steel Rebar from Turkey’, adopted on 8 August 2002 (WT/DS211/R, paragraph 7.61), and in its report entitled ‘European Communities — Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil’, adopted on 7 March 2003 (WT/DS219/R, paragraph 7.335), that the obligation contained in Article 3.4 of the antidumping agreement, which has the same content as Article 3(5) of the basic regulation, to assess factors having a bearing on domestic prices is inextricably linked to the requirements set out in Articles 3.1 and 3.2 of the antidumping agreement, which include the same rules as Article 3(2) and (3) of the basic regulation, namely the requirements to carry out an objective examination of the effect of the dumped imports on prices in the domestic market for like products, which must include examination of the question whether there has been significant price undercutting, whether prices have been depressed or whether price increases have been prevented to a significant degree. According to those reports, there is no element in the text of the antidumping agreement which requires analysis of factors affecting domestic prices beyond an analysis of prices under Article 3.2 of that agreement. Article 3.4 of that agreement is focused on factors indicating the state of the industry or effects on the state of the industry, rather than factors having an effect on the state of the industry. It concerns effects rather than causes. As regards the rules expressly repeated by the EU legislature, it is necessary to consider that that interpretation also holds true in the context of the basic regulation.
134 In any event, it must be noted that the two measures at issue affect products imported from and originating in Pakistan, which may, in turn, have a bearing on prices in the European Union. This is also apparent from Article 3(2)(a) of the basic regulation. Moreover, changes in the legislative framework for the import of goods need not necessarily have repercussions on prices in the EU market, or on the prices of imported goods, since economic operators, such as exporting producers, or related importers, may decide not to pass on the benefits arising from those changes in the prices they charge their buyers.
135 As regards the analysis of the injury in recitals 74 to 102 of the contested regulation, it should be noted that the examination of the existence of injury suffered by the EU industry necessarily includes complex economic assessments in respect of which the institutions have a broad discretion, with the result that the Court is required to carry out only a limited review, which must be restricted to establishing whether procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or misuse of power (see paragraph 98 above).
136 According to Article 3(2), (3) and (5) of the basic regulation, a determination of injury must involve an objective examination of the volume of dumped imports, the prices of the dumped imports and the resulting impact on the production in question. First, with regard to the volume of the dumped imports, the institutions must examine whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the European Union. Next, with regard to the effect of the dumped imports on prices, it is necessary to examine whether there has been significant price undercutting in respect of the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of those imports is, in another way, to depress prices to a significant degree or to prevent price increases, which would otherwise have occurred, to a significant degree. Finally, the examination of the impact of the dumped imports on the EU industry concerned includes, inter alia, an assessment of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, production, market share, productivity, performance of investments or utilisation of capacity, factors affecting EU prices, actual and potential negative effects on cash flow, inventories, employment, wages, growth, and the ability to raise capital or investments.
137 The applicant maintains that several factors in the examination of the injury point to a positive trend as far as the EU industry is concerned and are therefore inconsistent with a finding of injury.
138 In that regard, it must be noted that the list of factors to be taken into consideration pursuant to Article 3(3) and (5) of the basic regulation is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance (see, to that effect, judgment of 30 March 2000, Miwon v Council, T‑51/96, EU:T:2000:92, paragraph 98).
139 The WTO panel stated in its report entitled ‘Thailand — Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland’, adopted on 28 September 2000 (WT/DS122/R, paragraphs 7.245 to 7.256), that the finding that the existence of material injury was not necessarily incompatible with the fact that some, and indeed several, of the factors provided for in Article 3.4 of the antidumping agreement, as reproduced in Article 3(5) of the basic regulation, indicated a positive trend. However, in such a scenario, the investigating authority must carry out a convincing analysis which shows that the positive development of certain factors is offset by negative development of other factors. The investigating authority may not simply ignore a factor indicating a positive trend, but must explain why such a factor is irrelevant or lacks importance. The same is true of the examination established by the basic regulation.
140 In the present case, it is apparent from the contested regulation that the institutions carried out a detailed examination of the relevant factors and that the factors indicating negative development of the EU bed-linen industry outweighed the positive factors.
141 Accordingly, it must be observed that the applicant has not rejected any of the factual findings or figures relating to the determination of injury, contained in the contested regulation. It is not for the court to substitute its own assessment of the facts for that of the institutions responsible for the antidumping investigation (see, by analogy, Opinion of Advocate General Léger in Ikea Wholesale, C‑351/04, EU:C:2006:236, paragraph 105, and judgment of 4 March 2010, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06, EU:T:2010:70, paragraph 66).
142 Next, as regards the taking into consideration of the factors noted by the applicant, which indicate a positive trend in the EU industry, in the first place, it is apparent from the judgment of 28 October 2004, Shanghai Teraoka Electronic v Council (T‑35/01, EU:T:2004:317, paragraphs 194 to 197) that a price rise is not a sign of a lack of injury suffered by an industry, where that increase merely reflects a change in the structure of the products over a certain period to products with greater added value. Recital 92 of the contested regulation rightly points out, as regards the increase in the average price of the product concerned that it covers both high-value and low-value items of the product concerned and that the EU industry has been forced to shift to more sales of higher value niche products as their sales in the high volume, mass market were taken over by imports from low price countries. Moreover, while average sales prices per kg of the EU industry overall went up marginally between 1999 and 2001 from EUR 11.3 to EUR 11.5, they dropped to EUR 11.1 during the investigation period.
143 In the second place, it follows from the judgment of 10 March 1992, Ricoh v Council (C‑174/87, EU:C:1992:108, point 57), that an increase in the volume of sales of the product concerned by the EU industry does not prevent a finding of injury suffered by that industry when it loses market share at the same time to dumped imports. Recitals 77, 87 and 88 of the contested regulation explain specifically that the positive indicator of the increase in sales volume must be viewed in the light of the fact that EU consumption has increased by more than 15% over the same reference period and that loss of the EU industry’s market share to products from Pakistan is the logical conclusion. Consequently, the contested regulation concludes that the EU industry could not participate adequately in the growth of the market between 1999 and the investigation period. Likewise, there is no question of a positive trend in the EU industry if an increase in the sales volume of the product concerned is accompanied by a loss of profitability, where it does not pursue at the same time, as in the present case, an expansion strategy in the market concerned.
144 In the third place, as regards the rise in salaries, recital 99 of the contested regulation clearly explains that that somewhat positive factor cannot be regarded as contrary to a finding of the existence of injury, since that increase is below inflation. The salary level therefore, in real terms, declined. While the applicant claims that that development of European industry salaries should instead have been compared to the development of salaries in other sectors, it does not explain why that point of comparison is relevant to such an extent that it follows that the choice of inflation as the reference for their analysis indicates a manifest error of assessment. In any event, the applicant’s claim fails to convince. The use of the criterion put forward by the applicant could lead to failure to find material injury if salaries in other EU industry sectors showed the same development despite being in recession. That criterion would also pose the problem of the choice of EU industry sectors with regard to which the salary development comparison should be made. It follows that the applicant has not demonstrated that the institutions had committed a manifest error of assessment in choosing inflation as the element of comparison in analysing salary development.
145 Finally, as regards other factors, whose assessment was disputed by the applicant, first, it should be noted that, contrary to the applicant’s claim, recital 95 of the contested regulation stated that the reason for the decrease in investments in the EU industry was loss of market share of the EU industry and fierce price pressure in the EU market.
146 Secondly, it has already been acknowledged in the judgment of 14 July 1995, Koyo Seiko v Council (T‑166/94, EU:T:1995:140, paragraphs 90 to 95), that a finding of injury suffered by the EU industry could be based, in conjunction with other factors, on the fact that that industry’s market share had fallen by 88.8% to 85.7%, that is to say by approximately 3.1 percentage points. In the present case, according to recitals 87 and 88 of the contested regulation, the EU industry’s market share fell from 20.8% to 18.9% during the investigation period, which constitutes a decrease of 1.9 percentage points. Contrary to the applicant’s view, such a loss of market share cannot be regarded as negligible, and cannot be considered in isolation, but rather in the context of other negative economic indicators, such as the reduction in profitability from 7.7% to 4.4%.
147 Thirdly, as mentioned in the above paragraph, the figures on profitability point to a reduction of 42% (recital 96 of the contested regulation) and, therefore, a clearly negative trend. As regards the argument that that reduction is explained by the abolition of the previous antidumping duties and the implementation of the generalised scheme of preferences, it is sufficient to note that those two measures are not factors that the institutions must take into account, as such, in the injury analysis (see paragraphs 128 to 134 above).
148 Fourthly, it follows from recital 89 of the contested regulation that, while the stocks of the EU producers included in the sample have increased, the Council did not consider that that element was a relevant indicator of injury in the present case, due to the industry-specific high fluctuations of stocks. Recital 90 of the contested regulation indicates that the data available on the use of the production capacity does not permit an overall conclusion regarding the positive or negative development of that factor. It follows that, unequivocally, those factors did not serve as a basis for finding that the EU industry had suffered material injury. The applicant’s arguments relating to the analysis of those factors are therefore, in any event, ineffective. As regards the argument that the fall in production capacity utilisation for printed bed linen, as referred to in recital 91 of the contested regulation, is explained by large-scale investment in shifting and expanding its production capacity, it must be observed that it is not supported by any relevant evidence.
149 It follows from all the above that the arguments put forward by the applicant are not capable of demonstrating that the Council committed a manifest error of assessment in concluding, in recital 102 of the contested regulation, that the EU industry had suffered material injury. Nor are they capable of establishing a failure to state reason. The contested regulation contains a full assessment of the relevant elements and a sufficient explanation of why the factors which rather indicate a positive trend were neutralised or offset by the negative factors.
150 Consequently, the fourth plea in law must be rejected.
The fifth plea in law, alleging a manifest error of assessment and infringement of Article 3(6) and (7) of the basic regulation, and infringement of Article 3.5 of the antidumping agreement, with regard to the establishment of a causal link between the allegedly dumped imports and the alleged injury
151 By its fifth plea in law, which is expressed in four parts, the applicant alleges, in essence, that the Council made a manifest error of assessment by failing correctly to assess the individual and collective impact of other known factors concerning the state of the EU industry. The Council therefore infringed Article 3(6) and (7) of the basic regulation, and Article 3.5 of the antidumping agreement.
– The first part of the fifth plea in law
152 The applicant claims that the Council made a manifest error of assessment by failing correctly to assess the effect of the alleged commercial decision, made consciously by the EU industry, to shift its production and sales from the low-value segment to the high-value segment of the EU bed-linen market. The applicant submits that, in recital 92 of the contested regulation, the Council acknowledges a conscious shift on the part of the EU industry to production and sale of high-value bed linen and explains it as a consequence of the decline in sales in the high-volume market in favour of low-priced imports. However, on the one hand, that development was already under way before the investigation period, as confirmed, inter alia, by the increase in the EU producers’ average sales prices in the preceding years. On the other hand, there would have been no increase in imports from Pakistan, in respect of the period considered, were it not for the increase between 2001 and the end of the investigation period. Those two events do not therefore coincide in time, which confirms the conclusion that that shift was the consequence of a business decision independent of the evolution in the relevant imports.
153 Moreover, the applicant claims that the institutions did not at any time assess the impact of that conscious shift on the EU industry, in particular when demand was expanding only on the low-end bed-linen market. Consequently, with the stagnation of demand in the high-end bed-linen market, the EU producers were certain to have been particularly affected, that is to say they were less able to benefit from the expansion of low-end demand.
154 Although the contested regulation acknowledges, in essence, that there was stagnation of demand in the high-end market, the applicant submits that it merely asserts that the EU industry also needed high-volume sales of lower-priced bed linen. Nevertheless, it does not take into consideration the fact that the conscious abandonment of that production and subsequent stagnation of demand in the upper end of the market could, themselves, explain the reduction in market share and profitability of the EU industry.
155 The institutions dispute the applicant’s arguments.
156 In that regard, it should be noted, as a preliminary point that, according to settled case-law establishment of a causal link between material injury suffered by the EU industry and the dumped imports involves the assessment of complex economic matters. In that respect the EU institutions enjoy a wide discretion and the Court must restrict its review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate or whether there has been a manifest error of assessment or a misuse of powers (judgment of 14 March 2007, Aluminium Silicon Mill Products v Council, T‑107/04, EU:T:2007:85, paragraph 71).
157 The institutions are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of EU producers themselves (judgments of 11 June 1992, Extramet Industrie v Council, C‑358/89, EU:C:1992:257, paragraph 16, and 14 March 2007, Aluminium Silicon Mill Products v Council, T‑107/04, EU:T:2007:85, paragraph 72). It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the antidumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports (see, to that effect, judgment of 3 September 2009, Moser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraph 88).
158 However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the EU industry can consequently be established (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 37 and the case-law cited).
159 In the present case, the applicant claims that the EU industry took the decision to shift to the upper segment in respect of the product concerned, without being forced to do so, and that the material injury suffered by it is not caused by competition in the lower segment, represented in particular by imports from Pakistan, but rather by stagnation of demand in the upper segment of the market.
160 In that regard, recital 112 of the contested regulation states as follows:
‘It was claimed that the demand for bed linen produced by the [EU] industry has diminished in volume terms as the [EU] industry focused on the upper end of the market, where less sales volume is made. However, as pointed out above, the total EU consumption of bed linen did not decrease, but rather increased over the period considered. Most of the [EU] producers have different product lines for different market segments. The up-market brands generate high margins but are only sold in very small quantities. In order to maximise the capacity utilisation and to cover the fixed costs of production, the [EU] industry would need sales of lower priced market segment in big volumes as well. There is no indication that demand has decreased in that market segment. This segment is on the other hand increasingly taken over by low-priced imports, which cause injury to the [EU] industry. Given the overall increase in consumption, which is not limited to a particular market segment, the demand situation in the [European Union] can therefore not be seen to break the causal link between the dumped imports from Pakistan and the injury suffered by the [EU] industry.’
161 First, it must be pointed out that that analysis relies on data and figures whose accuracy has not been disputed by the applicant. It is not for the Court to substitute its own assessment of the facts for that of the institutions responsible for the antidumping investigation.
162 Next, it is sufficient to note, in rejecting the applicant’s arguments, that, contrary to its claim, it does not follow from the contested regulation that demand for the product concerned is stagnant as regards its upper segment. It follows rather from recital 75 and the last sentence of recital 112 of the contested decision that consumption of the product concerned rose over all ranges. The material injury suffered by the EU industry could not therefore be caused by the alleged stagnation of demand in the upper segment of the market, since that has not been established.
163 Finally, and in any event, the contested regulation explains to the requisite legal standard that, far from constituting an independent strategic decision, the shifting of the EU industry was merely the consequence of fierce competition in the low-end segment of the market caused, in particular, by imports from Pakistan.
164 Consequently, the applicant has not demonstrated that the Council had committed a manifest error of assessment in considering that the causal link between the material injury suffered by the EU industry and the imports of the product concerned originating in Pakistan could not be broken by the decision of the EU industry to redirect towards the top segment of the market and by a fall in demand in that market, with the result that the first part of the fifth plea in law must be rejected.
– The second part of the fifth plea in law
165 The applicant claims, in essence, that the Council made a manifest error of assessment by failing to conclude that imports of the product concerned from Turkey and the central and eastern European states, the result of a decision by the EU industry to manufacture low-end products offshore in those countries, broke the causal relationship between imports from Pakistan and the injury caused to the EU industry. It notes that, in recital 109 of the contested regulation, the Council recognises the links between Turkish exporting companies and the EU industry and ‘a certain market integration in the form of inter-company trade’. That indicates that the EU producers knowingly replaced their own production with Turkish production in respect of the lower-end of the EU bed-linen market. It argues that the institutions did not examine the impact and consequences of that decision, or the impact of moving part of the production offshore to central and eastern European states, of which they were, however, aware, on account, inter alia, of the documents submitted to them by the applicant during the administrative procedure, including the document contained in Annex C 7 of the reply.
166 The applicant argues that in so far as the minor loss of market share by production located in the European Union was offset by the increase in market share of imports from the offshore production under the control of the EU industry, any injury suffered by the EU industry is caused not by imports from Pakistan, but by the decision of the EU producers to use offshore production which they control in order to source low-value bed linen and to sell it in the European Union. Accordingly, imports from Pakistan did not deprive the EU industry of any market share and caused it no injury.
167 The institutions dispute the applicant’s arguments.
168 In that regard, first, Article 48(1) of the Rules of Procedure of 2 May 1991 provides that while the parties may offer further evidence in support of their arguments in reply or rejoinder, they must give reasons for the delay in offering it. The applicant has provided no reasons for, and still less justified, the delay in submitting Annex C 7. It is therefore inadmissible. In any event, the applicant has adduced no evidence demonstrating that the institutions responsible for the investigation were aware of a decision taken by the EU industry to move offshore part of its production to the countries in question. The fact that the institutions noted certain economic links between the EU industry and other countries does not mean, in itself, that they were aware of an ‘offshoring’ strategy with the objective of replacing EU production with offshore production. Consequently, the argument alleging ‘offshoring’ of the EU industry must be automatically rejected.
169 Next, the applicant has not, in any event, adduced any evidence as regards its claim that the products of that industry alleged to have been moved to other countries in fact broke the causal link between the injury suffered by the industry and the imports of the product concerned originating in Pakistan. The applicant does not indicate the extent to which the EU industry was moved offshore, or the precise volume of imports arising from that offshore production.
170 Finally, and in particular, it is apparent from recitals 109 to 111 of the contested regulation that the Council, contrary to the applicant’s claim, assessed to the requisite legal standard the impact of imports of the product concerned from other countries including Turkey and that it was entitled to conclude, without committing a manifest error of assessment, that the relatively high prices of imports originating in those countries compared with the prices of imports originating in Pakistan precluded the imports originating in third countries from breaking the causal link established in recital 107 of the contested regulation. Such a finding is supported by the fact that it is apparent from recitals 105 to 107 of the contested regulation that price was the main element of competition between the EU and Pakistani products
171 The second part of the fifth plea in law must therefore be rejected.
– The third part of the fifth plea in law
172 The applicant alleges, in essence, that the Council erred in law by failing to examine whether the abolition of the previous antidumping duties on products from Pakistan, and the implementation of a generalised scheme of preferences at the start of 2002, had the effect of breaking the causal link between the injury suffered by the EU industry and the imports from Pakistan, even though their immediate cumulative effect was to reduce the cost of those imports by approximately 20%.
173 As already mentioned above, the Court of Justice held in the judgment of 14 November 2013, Council v Gul Ahmed Textile Mills (C‑638/11 P, EU:C:2013:732) that ‘the measures at issue which facilitate and promote imports are only indirect causes and cannot be regarded as ‘other factors’ within the meaning of Article 3(7) of the [basic regulation]’.
174 Accordingly, the third part of the fifth plea in law must be rejected.
– The fourth part of the fifth plea in law
175 By that part, the applicant alleges that the Council infringed Article 3(7) of the basic regulation, and Article 3.5 of the antidumping agreement, by failing to assess the collective impact of other factors causing injury to the EU industry.
176 It is clear from paragraph 192 of the report of the WTO Appellate Body (‘the appellate body’) entitled ‘European Communities — Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil’ of 22 July 2003 (WT/DS 219/AB/R), that there may be cases where, because of the specific factual circumstances therein, the failure to undertake an examination of the collective impact of other causal factors would result in the investigating authority improperly attributing the effects of ‘other factors’ to the imports forming the subject matter of the investigation.
177 The institutions dispute the applicant’s arguments.
178 In that regard, Article 3(7) of the basic regulation and Article 3.5 of the antidumping agreement require that the effect of other causal factors be separated and distinguished from those of the dumped imports so that the damage caused by the dumped imports and that caused by other factors are not amalgamated and impossible to distinguish. Those provisions do not however specify the method by which the authorities responsible for the investigation must avoid imputing damage caused by other causal factors to the dumped imports (see, as regards the antidumping agreement, the appellate body report entitled ‘United States — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan’, adopted on 24 July 2001 (WT/DS184/AB/R, paragraph 228)).
179 Accordingly, those provisions do not contain a general obligation on the part of the authorities responsible for the investigation to examine the effects of other causal factors collectively after examining them individually. While the appellate body does not rule out, in absolute terms, that there may be cases where, because of the specific factual circumstances, the failure to undertake an examination of the collective impact of other causal factors would result in the investigating authority improperly attributing the effects of other causal factors to the dumped imports, it interprets Article 3.5 of the antidumping agreement as not requiring the authorities responsible for the investigation to examine the collective impact of other causal factors where they fulfil their obligation not to attribute to dumped imports the injuries caused by other causal factors (appellate body report entitled ‘European Communities — Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil’ of 22 June 2003(WT/DS 219/AB/R, paragraphs 190 and 191)).
180 The examination of the first two parts of the present plea in law has revealed no manifest error of assessment by the institutions in examining the effect of the factors referred to by the applicant. As regards the third part, it has been held that the two legislative measures did not constitute factors to be taken into account in the context of Article 3(7) of the basic regulation.
181 Furthermore, as the Council rightly observes, the applicant has not identified the specific factual circumstances justifying collective assessment in the present case, or demonstrated that other factors had individually caused independent injuries which together broke the causal link between the imports from Pakistan and the injury suffered by the EU industry.
182 Consequently, the fourth part of the fifth plea in law must be rejected, as must, accordingly, that plea in law in its entirety.
183 It follows from the foregoing that there is no longer any need to rule on the second and third pleas in law and that the action must be dismissed as to the remainder.
Costs
184 In the judgment on appeal, the Court of Justice reserved the costs. It is therefore for this Court to rule in this judgment on all the costs relating to the various proceedings, in accordance with Article 219 of the Rules of Procedure.
185 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. In accordance with Article 138(1) of those rules, the institutions which have intervened in the proceedings are to bear their own costs.
186 Since there is no longer any need to rule on the second and third pleas in law and the applicant’s other pleas in law have been unsuccessful, in the circumstances of the present case, it is fair to order the applicant to bear its own costs and to pay those incurred by the Council. The Commission shall bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Gul Ahmed Textile Mills Ltd to pay the costs of the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Dittrich | Schwarcz | Tomljenović |
Delivered in open court in Luxembourg on 15 December 2016.
Table of contents
Background to the dispute
Procedure before the General Court and the Court of Justice
Forms of order sought after referral
Law
The applicant’s continuing interest in bringing proceedings
Admissibility
The admissibility of the applicant’s written observations of 29 January 2014
The admissibility of the Council’s written observations of 15 May 2014
Substance
The first plea in law, alleging infringement, as regards the initiation of the investigation, of Article 5(7) and (9) of the basic regulation and Articles 5.1 and 5.2 of the antidumping agreement
– The first part of the first plea in law
– The second part of the first plea in law
The fourth plea in law, alleging a manifest error of assessment and infringement of Article 3(2), (3) and (5) of the basic regulation, and Articles 3.1 and 3.4 of the antidumping agreement, with regard to the determination of material injury
The fifth plea in law, alleging a manifest error of assessment and infringement of Article 3(6) and (7) of the basic regulation, and infringement of Article 3.5 of the antidumping agreement, with regard to the establishment of a causal link between the allegedly dumped imports and the alleged injury
– The first part of the fifth plea in law
– The second part of the fifth plea in law
– The third part of the fifth plea in law
– The fourth part of the fifth plea in law
Costs