JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
9 June 2016 (*)
(Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Action for annulment — Direct concern — Admissibility — Countrywide anti-dumping duty — Individual treatment — Sampling)
In Case T‑277/13,
Marquis Energy LLC, established in Hennepin, Illinois (United States), represented initially by P. Vander Schueren, lawyer, and subsequently by P. Vander Schueren and M. Peristeraki, lawyers,
applicant,
v
Council of the European Union, represented by S. Boelaert, acting as Agent, and initially by G. Berrisch, lawyer, and B. Byrne, Solicitor, and subsequently by R. Bierwagen and C. Hipp, lawyers,
defendant,
supported by
European Commission, represented by M. França and T. Maxian Rusche, acting as Agents,
and by
ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, represented by O. Prost and A. Massot, lawyers,
interveners,
APPLICATION for partial annulment of Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10), in so far as it affects the applicant,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 21 May 2015,
gives the following
Judgment
Background to the dispute
1 The applicant, Marquis Energy LLC, a US undertaking, is a producer of bioethanol.
2 Following a complaint lodged by ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (European Producers Union of Renewable Ethanol Association, ‘ePure’), the European Commission initiated an anti-dumping proceeding concerning imports into the European Union of bioethanol originating in the United States, pursuant to Article 5 of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, ‘the basic regulation’).
3 By the notice of initiation of an anti-dumping proceeding concerning imports of bioethanol originating in the United States of America (OJ 2011 C 345, p. 7), the Commission stated that, in view of the large numbers of exporting producers in the United States and of European Union producers, it intended to use sampling in respect of both the former and the latter, in accordance with Article 17 of the basic regulation.
4 On 16 January 2012, the Commission notified, by letter, the applicant, Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC (‘the sampled producers’) that they had been selected to be part of the sample of exporting producers in the United States. Subsequently, those companies sent the Commission their respective replies to the anti-dumping questionnaire on 22 February 2012 and the Commission carried out verification visits at the premises of those companies.
5 On 24 August 2012, the Commission sent the applicant the provisional disclosure document in which it set out the facts and considerations on the basis of which it had decided to continue the investigation without imposing provisional measures (‘the provisional disclosure document’). In recitals 45 to 47 of that document, it stated, inter alia, that it was not possible at that stage to assess whether the exports of bioethanol originating in the United States had been made at dumped prices on the ground that the sampled producers did not make a distinction between domestic sales and sales for export, and all their sales were made to unrelated traders/blenders established in the United States, which then blended the bioethanol with gasoline and resold it. Consequently, the sampled producers had no knowledge of the destination of the product or its export price. Therefore, the Commission decided to continue the investigation and to extend it so as to cover the traders/blenders in order to obtain data on the export price and a full picture of the bioethanol market (recital 50 of that document).
6 On 24 September 2012, the applicant submitted its observations on the provisional disclosure document.
7 On 6 December 2012, the Commission sent the applicant the definitive disclosure document in which it examined, on the basis of the data from unrelated traders/blenders, the existence of dumping causing injury to the European Union industry (‘the definitive disclosure document’). It then envisaged imposing definitive measures, at a rate of 9.6% countrywide, for a period of three years.
8 The applicant submitted its observations on that document on 17 December 2012.
9 By letter of 21 December 2012, the Commission sent an additional disclosure document in which it envisaged, in essence, increasing the period of validity of the definitive anti-dumping measure from three years to five years, and invited the applicant to provide written submissions on that amendment and on the definitive disclosure document by 2 January 2013 at the latest.
10 On 2 January 2013, the applicant submitted its observations on that document.
11 By letter of 1 February 2013, the Commission replied to the applicant’s observations on the definitive disclosure document.
12 On 18 February 2013, the Council of the European Union adopted Implementing Regulation (EU) No 157/2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10, ‘the contested regulation’), by which it imposed an anti-dumping duty on bioethanol, referred to as ‘fuel ethanol’, that is to say, ethyl alcohol produced from agricultural products, denatured or undenatured, excluding products with a water content of more than 0.3% (m/m) measured according to the standard EN 15376, but including ethyl alcohol produced from agricultural products contained in blends with gasoline with an ethyl alcohol content of more than 10% (v/v) intended for fuel uses, originating in the United States and currently falling within CN codes ex 2207 10 00, ex 2207 20 00, ex 2208 90 99, ex 2710 12 21, ex 2710 12 25, ex 2710 12 31, ex 2710 12 41, ex 2710 12 45, ex 2710 12 49, ex 2710 12 51, ex 2710 12 59, ex 2710 12 70, ex 2710 12 90, ex 3814 00 10, ex 3814 00 90, ex 3820 00 00 and ex 3824 90 97 (TARIC codes 2207100012, 2207200012, 2208909912, 2710122111, 2710122592, 2710123111, 2710124111, 2710124511, 2710124911, 2710125111, 2710125911, 2710127011, 2710129011, 3814001011, 3814009071, 3820000011 and 3824909767), at a rate of 9.5% countrywide, in the form of a fixed amount of EUR 62.30 per tonne net, applicable in proportion to the total content, by weight, of the content of bioethanol, for a period of five years.
13 As regards the sampling of exporting producers in the United States, the Council stated, in recitals 12 to 16 of the contested regulation, that the investigation had shown that none of the sampled producers referred to in paragraph 4 above exported bioethanol to the European Union market. In fact, their sales had been made on the domestic market to unrelated traders/blenders, which then blended the bioethanol with gasoline and resold it on the domestic market and for export, in particular to the European Union. The Council stated that those producers were not systematically aware of whether their production was intended for the European Union market and had no knowledge of the sales prices charged by the traders/blenders. That meant that the US producers of bioethanol were not the exporters of the product concerned to the European Union. The exporters were in fact the traders/blenders. In order to complete the dumping investigation, the Council relied on the data of the two traders/blenders that had agreed to cooperate in the investigation.
14 As regards the finding of dumping, the Council explained, in recitals 62 to 64 of the contested regulation, that it was appropriate to establish a countrywide dumping margin. Even though certain producers claimed that it was possible to identify and trace their products when they were sold to US operators for export, the Council stated that they could not establish the link between their sales on the US market and the exports made by other operators to the European Union and they were not aware of the level of the export price to the European Union. According to the Council, the structure of the bioethanol industry and the way in which the product concerned was produced and sold on the US market and exported to the European Union made it impracticable to establish individual dumping margins for US producers.
Procedure and forms of order sought
15 By application lodged at the Court Registry on 15 May 2013, the applicant brought the present action.
Application for joinder with Case T‑276/13 Growth Energy and Renewable Fuels Association v Council
16 By document lodged at the Court Registry on 18 June 2013, the applicant requested that the present case be joined with Case T‑276/13 Growth Energy and Renewable Fuels Association v Council. In its observations, the Council requested that the Court postpone the decision on a possible joinder of the two cases until the closure of the written part of the procedure and until it had examined the parties’ arguments on admissibility.
17 On 31 July 2013, the President of the Fifth Chamber of the General Court decided not to join the present case with Case T‑276/13 Growth Energy and Renewable Fuels Association v Council.
Interventions
18 By document lodged at the Court Registry on 16 July 2013, the Commission applied for leave to intervene in the present case in support of the form of order sought by the Council. The applicant and the Council raised no objections to that intervention.
19 By document lodged on 20 September 2013, ePure applied for leave to intervene in the present case in support of the form of order sought by the Council. The applicant and the Council raised no objections to that intervention.
20 By orders of 4 February 2014, the President of the Fifth Chamber of the General Court granted the applications to intervene.
21 On 18 April 2014, the Commission and ePure submitted their statements in intervention.
Measures of organisation of procedure and the oral part of the procedure
22 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court of 2 May 1991, put written questions to the Council and to the applicant. The parties replied to the written questions within the prescribed period.
23 However, the Council informed the Court by letter of 29 April 2015 that it considered certain information needed in order to respond to those questions to be confidential and it invited the Court to adopt measures of inquiry in order to be able to ‘produce the documents’ and apply for confidential treatment in respect of them.
24 By letter of 19 May 2015, the applicant made three requests to the Court. It requested, first, that it adopt measures of inquiry ordering the Council to produce the documents, second, that it withdraw section (i)1 of the Council’s response to the Court’s written questions or, in the alternative, allow the applicant to submit written observations, and, third, that it allow the applicant to submit written observations with a view to rectifying the errors of fact contained in the Council’s response.
25 The parties presented oral argument and answered the questions put by the Court at the hearing on 21 May 2015. At the hearing, the applicant waived its request of 19 May 2015 in part, by withdrawing the second and third requests set out in paragraph 24 above, of which waiver the Court took formal note in the minutes of the hearing.
26 At the end of the hearing, the President of the Fifth Chamber of the General Court deferred the close of the oral part of the procedure to a later date.
27 As the Court did not consider it necessary to order the abovementioned measure of inquiry, the parties were informed, by letter of 17 December 2015, that the oral part of the procedure had been closed on that same date.
Applications for confidential treatment
28 By document lodged on 22 November 2013, the applicant requested that certain documents annexed to the application and certain documents annexed to the reply be treated as confidential as regards ePure.
29 By document lodged on 21 May 2014, the applicant requested that certain parts of the Commission’s statement in intervention be treated as confidential as regards ePure.
30 By document lodged on 8 May 2015, the Council requested that certain parts of its response to the questions put by the Court by way of measures of organisation of procedure be treated as confidential as regards ePure.
31 By document lodged on 15 May 2015, the applicant requested that certain parts of the Council’s response to the questions put by the Court by way of measures of organisation of procedure be treated as confidential as regards ePure.
32 ePure received only non-confidential versions of that material and raised no objection to the applications for confidential treatment made with regard to it.
Forms of order sought
33 The applicant claims that the Court should:
– annul the contested regulation in so far as it affects the applicant;
– order the Council to pay the costs.
34 The Council contends that the Court should:
– dismiss the application as inadmissible;
– in the alternative, dismiss the application as unfounded;
– order the applicant to pay the costs.
35 The Commission contends that the Court should:
– dismiss the application as inadmissible;
– in the alternative, dismiss the application as unfounded;
– order the applicant to pay the costs.
36 ePure contends that the Court should:
– dismiss the pleas relied upon by the applicant;
– order the applicant to pay the costs.
Law
37 In support of its action, the applicant relies on 10 pleas in law. The first plea in law alleges an infringement of Article 2(8), Article 9(5) and Article 18(1), (3) and (4) of the basic regulation, a breach of the principles of legal certainty, legitimate expectations and sound administration and manifest errors of assessment. The second plea in law alleges a manifest error of assessment of the facts and an infringement of Article 2(10) of the basic regulation. The third plea in law alleges a manifest error of assessment and a breach of the principle of non-discrimination and an infringement of Article 3(2) of the basic regulation. The fourth plea in law alleges an infringement of Article 3(2) of the basic regulation and a manifest error of assessment. The fifth plea in law alleges a manifest error of assessment and an infringement of Article 1(4), Article 3(1) to (3) and (5) to (7) and Article 4(1) of the basic regulation. The sixth plea in law alleges a manifest error of assessment and an infringement of Article 3(1) of the basic regulation. The seventh plea in law alleges a manifest error of assessment with regard to the casual link. The eighth plea in law alleges an infringement of Article 9(2) of the basic regulation and a breach of the principle of proportionality. The ninth plea in law alleges an infringement of Article 5(2) and (3) of the basic regulation and a breach of the principles of sound administration and non-discrimination. Lastly, the tenth plea in law alleges the infringement of Article 6(7), Article 19(1) and (2) and Article 20(2), (4) and (5) of the basic regulation, infringement of the rights of the defence, breach of the principles of non-discrimination and sound administration and a failure to provide adequate reasons.
38 In that context, it should be observed that, in its written pleadings, the applicant raises a series of arguments, which — although directed at establishing the unlawfulness of the contested regulation — nevertheless refer to infringements of the law committed by the ‘Commission’. By way of example, the first to fifth, seventh and ninth pleas in law as summarised in paragraph 2 of the application are based on claims that the ‘Commission’ committed various infringements of the basic regulation. It is clear that the references to infringements arising under the contested regulation and committed by the ‘Commission’ rather than by the ‘Council’ constitute a clerical mistake in the applicant’s written pleadings. First, it is unequivocally clear from reading the applicant’s written pleadings that its arguments are directed at having the contested regulation annulled on account of the infringements committed by the Council. Second, the response to those arguments provided by the Council and the Commission shows that they took the view that the applicant was in fact referring to infringements committed by the Council. In those circumstances, it is necessary to examine those arguments of the applicant as understood above, this being how they were also understood by the Council and the Commission.
39 The Council, supported by the Commission and ePure, without formally raising a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, contends that the action is inadmissible. It submits that the applicant does not have standing to bring proceedings on the ground that, in its view, the conditions laid down in the fourth paragraph of Article 263 TFEU are not satisfied. Furthermore, the Commission contends that the applicant does not have an interest in bringing proceedings.
Admissibility
40 It is necessary to examine, first, the applicant’s standing to bring proceedings and, second, its interest in bringing proceedings in the present case.
Standing to bring proceedings
41 It should be recalled that the fourth paragraph of Article 263 TFEU refers to three situations in which any natural or legal person may bring an action for annulment. Under the conditions laid down in the first and second paragraphs of Article 263 TFEU, they may, first, institute proceedings against an act addressed to them. Second, they may institute proceedings against an act which is of direct and individual concern to them, and, third, against a regulatory act which is of direct concern to them and does not entail implementing measures.
42 The criterion as to direct concern is identical in the second and third situations referred to in the fourth paragraph of Article 263 TFEU (order of 13 March 2015 in European Coalition to End Animal Experiments v ECHA, T‑673/13, ECR, EU:T:2015:167, paragraph 67).
43 In the present case, it is common ground that the contested regulation is not addressed to the applicant. Therefore, it is appropriate to examine whether the applicant may bring an action for annulment against the contested regulation under the second or third situations referred to in the fourth paragraph of Article 263 TFEU.
44 The concept of direct concern referred to in the fourth paragraph of Article 263 TFEU requires two cumulative criteria to be met, namely, first, that the act that the applicant is seeking to have annulled directly affects its legal situation and, second, that that act leaves no discretion to the addressees of that measure entrusted with the task of implementing it, such implementation being purely automatic and resulting from rules of EU law without the application of other intermediate rules (order of 24 September 2009 in Município de Gondomar v Commission, C‑501/08 P, EU:C:2009:580, paragraph 25, and judgment of 13 October 2011 in Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, ECR, EU:C:2011:656, paragraph 66).
45 As regards the concept of individual concern referred to in the fourth paragraph of Article 263 TFEU, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors the decision distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, p. 107, and 13 December 2005 in Commission v Aktionsgemeinschaft Recht und Eigentum, C‑78/03 P, ECR, EU:C:2005:761, paragraph 33).
46 In the field of protection against dumping, first, according to settled case-law, measures imposing anti-dumping duties are liable to be of direct and individual concern to those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (judgments of 21 February 1984 in Allied Corporation and Others v Commission, 239/82 and 275/82, ECR, EU:C:1984:68, paragraph 12, and of 23 May 1985 in Allied Corporation and Others v Council, 53/83, ECR, EU:C:1985:227, paragraph 4).
47 Second, importers of the product concerned whose resale prices were taken into account for the construction of export prices and who are therefore concerned by the findings relating to the existence of dumping are directly and individually concerned by regulations imposing anti-dumping duties (judgments of 14 March 1990 in Nashua Corporation and Others v Commission and Council, C‑133/87 and C‑150/87, ECR, EU:C:1990:115, paragraph 15, and Gestetner Holdings v Council and Commission, C‑156/87, ECR, EU:C:1990:116, paragraph 18). The same is true of those importers associated with exporters in third countries on whose products anti-dumping duties have been imposed, particularly where the export price has been calculated on the basis of those importers’ resale prices on the European Union market and where the anti-dumping duty itself is calculated on the basis of those resale prices (see, to that effect, judgment of 11 July 1990 in Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, ECR, EU:C:1990:295, paragraphs 19 and 20).
48 Third, the Court of Justice has held that an original equipment manufacturer was directly and individually concerned by the provisions of the regulation relating to the dumping practices of the producer from which it had purchased the products because of the particular features of its business dealings with that producer, without it being necessary to categorise that original equipment manufacturer as an importer or exporter. The Court of Justice observed that it was in order to reflect those particular features that the Council had fixed a certain profit margin in constructing the normal value, which had then been taken into account in calculating the dumping margin on the basis of which the anti-dumping duty had been set, with the result that the original equipment manufacturer was concerned by the findings relating to the existence of the dumping complained of (see, to that effect, judgments in Nashua Corporation and Others v Commission and Council, cited in paragraph 47 above, EU:C:1990:115, paragraphs 17 to 20, and Gestetner Holdings v Council and Commission, cited in paragraph 47 above, EU:C:1990:116, paragraphs 20 to 23).
49 Fourth, the Court of Justice has held that a European Union producer had standing to bring proceedings where the regulation imposing the anti-dumping duty was based on that producer’s own situation, that producer being the leading manufacturer of the product concerned in the European Union. In reaching that conclusion, the Court of Justice held that the complaint which led to the opening of the investigation procedure owed its origin to the complaints submitted by that producer, that that producer’s views had been heard during that procedure, the conduct of which was largely determined by those observations, and that the anti-dumping duty had been set in the light of the effect of the dumping on that producer (see, to that effect, judgment of 20 March 1985 in Timex v Council and Commission, 264/82, ECR, EU:C:1985:119, paragraphs 14 and 15).
50 Fifth, the Court of Justice has also held that the recognition of the right of certain categories of economic operators to bring an action for the annulment of an anti-dumping regulation cannot prevent other operators from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons. Consequently, it held that the action brought by the applicant in that case was admissible, on the ground that it was the largest importer of the product covered by the anti-dumping measure, the end-user of the product and its economic activities depended, to a very large extent, on those imports and were seriously affected by the regulation at issue (see, to that effect, judgment of 16 May 1991 in Extramet Industrie v Council, C‑358/89, ECR, EU:C:1991:214, paragraphs 16 to 18).
51 It is in the light of those considerations that the applicant’s standing to bring proceedings in the present case should be examined.
52 The Council, supported by the Commission, submits that the applicant is not individually concerned by the contested regulation and that, consequently, it does not have standing to bring proceedings in the present case. Moreover, the Commission denies that the applicant is directly concerned.
53 The applicant contests that line of argument.
54 In order to determine whether the applicant has standing to bring proceedings against the contested regulation, it is necessary to examine whether it is directly and individually concerned by that regulation under the terms of the second situation referred to in the fourth paragraph of Article 263 TFEU.
– Direct concern
55 As regards the question whether the applicant was directly affected by the contested regulation, it must be noted that a company on whose products an anti-dumping duty is imposed is directly concerned by a regulation imposing that anti-dumping duty because it obliges the Member States’ customs authorities to levy the duty imposed without leaving them any discretion (see, to that effect, judgments of 25 September 1997 in Shanghai Bicycle v Council, T‑170/94, ECR, EU:T:1997:134, paragraph 41 and the case-law cited, and 19 November 1998 in Champion Stationery and Others v Council, T‑147/97, ECR, EU:T:1998:266, paragraph 31).
56 In the present case, first, it is clear that rather than imposing an individual duty on each supplier of the product in question, Article 1(1) of the contested regulation imposes a single anti-dumping duty on all imports of bioethanol in its pure state, that is to say, ethyl alcohol produced from agricultural products, and of bioethanol contained in blends with gasoline with an ethyl alcohol content of more than 10% (v/v), at the level of the supplying country, namely the United States. More specifically, it imposes a countrywide anti-dumping duty at a rate of EUR 62.30 per tonne net, applicable in proportion, by weight, of the total content of bioethanol. Therefore, the contested regulation does not identify imports of bioethanol by their individual source by indicating the relevant exporting operators in the marketing chain.
57 Second, the Council notes, in recital 12 of the contested regulation and in the defence, that since none of the five sampled producers themselves exported bioethanol to the European Union market, their sales were made on the domestic market to unrelated traders/blenders, which then blended the bioethanol with gasoline for the purpose of reselling it on the domestic market and for export, in particular to the European Union.
58 Third, the Council notes, again in recital 12 of the contested regulation, that the five US producers included in the sample ‘mentioned exports of bioethanol to the Union in their sampling form’.
59 Fourth, in recitals 10 and 11 of the contested regulation, the Council states that, in the administrative anti-dumping proceeding, the Commission selected a sample of six US bioethanol producers based on the largest representative quantity of exports of bioethanol to the European Union which could reasonably be investigated within the time available. One company was removed from the sample during the investigation because it was found that its production had not been exported to the European Union during the investigation period, that is to say, the period from 1 October 2010 to 30 September 2011, whereas the other five sampled producers remained in the sample.
60 It is therefore clear from the findings set out in paragraphs 55 to 59 above, relating to the operation of the bioethanol market as set out by the Council, that the Council itself considered, in the contested regulation, that a significant volume of bioethanol from the applicant had been exported on a regular basis to the European Union during the investigation period.
61 The finding made in paragraph 60 above is confirmed moreover by the assessments of the Council and the Commission made in the course of the anti-dumping proceeding and in their written and oral pleadings.
62 First of all, it must be noted that the Council stated, in its response to the Court’s written questions, that ‘it seem[ed] very likely’ that the bioethanol meeting the specifications of European standards (‘EN specifications’) sold to the European Union by the two traders/blenders that cooperated with the Commission during the investigation ‘comprise[d] bioethanol produced by [confidential]’. (1)
63 Next, that finding is also confirmed by other material in the file before the Court. The Commission confirmed in the course of the investigation, in its letter of 30 January 2013 addressed to the Growth Energy association in Annex A.13 to the application, that the eight traders/blenders that it had identified, which sold the bioethanol produced by the sampled producers, represented over 90% of total exports of bioethanol to the European Union during the investigation period.
64 Furthermore, in its response to the Court’s written questions, the Council provided figures for overall sales and those which met EN specifications, sourced from the applicant during the investigation period by the eight traders/blenders to whom questions were put by means of a questionnaire in the course of the investigation. A significant proportion of the applicant’s overall sales to the eight traders/blenders surveyed met EN specifications. In addition, the total quantities, which met EN specifications, sourced during the investigation period by the eight traders/blenders surveyed from the five US producers included in the sample, correspond to over [confidential] of the imports of bioethanol from the United States by those traders/blenders during the same period.
65 Lastly, the Council concedes in the defence that the cooperating traders/blenders sourced bioethanol from various producers, blended it and sold it for export. According to the Council, it was therefore no longer possible to identify the producer at the moment of the export to the European Union, nor to trace all purchases individually and compare the normal values with the relevant export prices.
66 It follows from those considerations that it has been established to a sufficient standard that the very significant volumes of bioethanol that were purchased during the investigation period by the eight traders/blenders surveyed from the five sampled US bioethanol producers, including the applicant, were in large part exported to the European Union. The Council has not provided any information that might disprove or invalidate that finding.
67 Therefore, it must be held that the applicant is directly concerned, within the meaning of the case-law cited in paragraphs 44 and 55 above, by the anti-dumping duty imposed by the contested regulation, on the ground that it was a producer of the product, which — when imported into the European Union from the coming into force of the contested regulation — was subject to the anti-dumping duty.
68 That finding cannot be invalidated by the other arguments of the Council and the Commission.
69 First, the Commission submits that the applicant is not directly concerned by the contested regulation on the ground that that regulation does not ‘charge’ it with dumping practices and that its direct sales are not subject to the anti-dumping duties. According to the Commission, the contested regulation does not have legal effects on the applicant and may have only indirect effects on it because it sold bioethanol to third parties which might then export part of that bioethanol to the European Union.
70 It should be pointed out that, contrary to what the Commission’s line of argument implies, it cannot be ruled out as a matter of principle that the sampled producers, by contrast with exporters, are entitled to bring an action against the contested regulation. As is clear from the case-law cited in paragraphs 44, 46 and 55 above, whether an operator is directly concerned by a regulation imposing anti-dumping duties does not depend on its status as a producer or exporter.
71 In addition, it should be recalled that the anti-dumping rules are aimed at protecting against dumped imports. First, under Article 1(1) of the basic regulation, an anti-dumping duty may be applied to any dumped product whose release for free circulation in the European Union causes injury. Second, according to the case-law, anti-dumping proceedings relate in principle to all imports of a certain category of products from a third country and not to imports of products manufactured by specific undertakings (see, to that effect, judgment of 7 December 1993 in Rima Eletrometalurgia v Council, C‑216/91, ECR, EU:C:1993:912, paragraph 17). In examining direct concern, it is therefore irrelevant whom the institutions ‘charge’ with the dumping practices in question.
72 It follows from the foregoing that, since the anti-dumping duties are linked to exported products, a producer, even if it is not the exporter of those products, may find itself substantially affected by the imposition of such anti-dumping duties on imports of the product concerned into the European Union.
73 In this connection, it must be noted that, in the present case, it is common ground that the applicant produced bioethanol in its pure state during the investigation period and that it was its products that the traders/blenders blended with gasoline and exported to the European Union.
74 It follows from the considerations set out in paragraphs 70 to 73 above that the circumstances referred to by the Commission, that the contested regulation did not ‘charge’ the applicant with dumping practices, that its direct sales were not subject to the anti-dumping duties and that, in essence, it was not an exporter, do not preclude, as a matter of principle, the fact that it was directly affected by the adoption of the contested regulation in its capacity as a sampled producer.
75 Second, the Commission contends that the contested regulation does not have legal effects on the applicant and may have only indirect effects on it because it sold bioethanol to third parties which might then export part of that bioethanol to the European Union.
76 In this connection, even supposing that the traders/blenders bore the anti-dumping duty and it were proven that the bioethanol marketing chain was interrupted so that they were not able to pass on the anti-dumping duty to the producers, it must nevertheless be recalled that the imposition of an anti-dumping duty changes the legal conditions under which the bioethanol produced by the sampled producers will be marketed on the European Union market. Therefore, the legal position of the producers in question on the European Union market will, in any event, be directly and substantially affected.
77 For the same reason, it must therefore be held that the Commission is also wrong in disputing the fact that an undertaking in the marketing chain other than the exporter found to engage in dumping practices ought to be able to challenge an anti-dumping duty ‘that targets the dumping practice of the exporter, and not of the companies in the supply chain’.
78 Third, the Commission submits that the contested regulation has only indirect effects on the applicant because the anti-dumping duty directly affects the transaction between the trader/blender and the importer. In this connection, it should be pointed out that the structure of the contractual arrangements between economic operators in the bioethanol marketing chain has no bearing on whether a producer of bioethanol is directly concerned by the contested regulation. First, to conclude otherwise would effectively mean that only a producer which sells its product directly to an importer in the European Union may be directly concerned by a regulation imposing an anti-dumping duty on the products manufactured by it, a proposition for which there is no support in the basic regulation. Second, such an approach would have the effect of restricting the legal protection of producers of products subject to anti-dumping duties solely according to the export marketing structure of the producer in question.
79 In that context, it should be pointed out that, as is clear from the case-law cited in paragraph 46 above, the fact that a producer knows exactly which goods manufactured by it are exported to the European Union has no bearing on whether it is directly affected by the contested regulation.
80 It follows from the examination carried out in paragraphs 70 to 79 above that the Commission’s arguments that the applicant is not directly concerned by the contested regulation must be rejected.
– Individual concern
81 As regards whether the applicant was individually concerned by the contested regulation, it should be recalled, as stated in paragraph 46 above, that measures imposing anti-dumping duties are liable to be of individual concern to those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations.
82 It is true that the parties disagree as to whether the applicant is an exporter of the product manufactured by it in the present case.
83 However, it must be noted that, according to the case-law cited in paragraph 50 above, it is conceivable that an operator such as the applicant may also be individually concerned by a regulation imposing an anti-dumping duty, by reason of certain attributes which are peculiar to it and which differentiate it from all other persons. If the applicant calls in question the merits of the decision imposing an anti-dumping duty as such, it must demonstrate that it has a particular status within the meaning of the judgment in Plaumann v Commission, cited in paragraph 45 above (EU:C:1963:17, p. 107) (see, to that effect and by analogy, judgment in Commission v Aktionsgemeinschaft Recht und Eigentum, cited in paragraph 45 above, EU:C:2005:761, paragraph 37).
84 In this connection, it must be held that, even in the case of a producer of a product subject to an anti-dumping duty but which is in no way involved in the export of that product, that would certainly be the case where, first, that producer is able to establish that it was identified in the measures adopted by the Commission or the Council or was concerned by the preliminary investigations (see, to that effect and by analogy, judgment in Allied Corporation and Others v Commission, cited in paragraph 46 above, EU:C:1984:68, paragraph 12) and, second, its market position is substantially affected by the anti-dumping duty to which the contested regulation relates (see, to that effect and by analogy, judgment in Commission v Aktionsgemeinschaft Recht und Eigentum, cited in paragraph 45 above, EU:C:2005:761, paragraph 37).
85 In the present case, as regards the applicant’s participation in the administrative proceeding, first of all, it should be observed that, as a US producer of bioethanol, it submitted a sampling form in response to the Commission’s notice of initiation [of an anti-dumping proceeding] (see paragraph 3 above). It was included in the sample and remained a member thereof throughout the investigation.
86 Next, it is clear that the applicant participated in the preliminary investigation. As a sampled producer, it inter alia cooperated in the investigation by providing responses to the Commission’s questionnaire and by hosting the Commission’s staff on its premises in order for them to carry out a verification visit.
87 Furthermore, its data was used for calculating the normal value at the provisional disclosure document stage.
88 Lastly, the applicant provided the Commission with its comments on the provisional, definitive and additional disclosure documents and attended a hearing with the Hearing Officer.
89 Therefore, it must be held that the applicant was intensively engaged in the preliminary investigation. It was, from both its own point of view and that of the Commission, a party participating in the preliminary investigation, and its position was examined by the Commission in the course of the proceeding which led to the imposition of the anti-dumping duty.
90 Moreover, as regards whether the applicant’s market position was substantially affected by the anti-dumping duty to which the contested regulation relates, it has already been stated, in paragraphs 56 to 62 above, that the very significant volumes of bioethanol that were purchased during the investigation period by the eight traders/blenders surveyed from the applicant were in large part exported to the European Union, and that the bioethanol produced by it has been subject, from the coming into force of the contested regulation, to the anti-dumping duty imposed by that regulation when imported into the European Union. Indeed, it is not in dispute that it was the sampled producers that produced the bioethanol exported to the European Union during the investigation period, and not the traders/blenders which blended it with gasoline and exported it to the European Union. On that point, it must be observed that the latter are not defined as producers of the product concerned in the contested regulation. Moreover, the Council concedes, in the defence, that the applicant was identified as a producer in the contested regulation and that its data was examined in the course of the investigation.
91 It is clear from those findings that the applicant was concerned by the preliminary investigations because it participated intensively in them and that it was substantially affected by the anti-dumping duty to which the contested regulation relates.
92 It follows from the considerations set out in paragraphs 81 to 91 above that the applicant is individually concerned by the contested regulation under the terms of the second situation referred to in the fourth paragraph of Article 263 TFEU.
93 That conclusion is not called in question by the other arguments raised by the Council and by the Commission.
94 First, the Council, supported by the Commission, submits that the applicant is not individually concerned by the contested regulation because even though it was identified as a producer in the contested regulation, the dumping was carried out by the traders/blenders and it was the latter that were charged with dumping.
95 First of all, it must be pointed out at the outset that, as stated in paragraphs 85 to 89 above, the applicant participated fully in the preliminary investigation and its position was examined by the Commission in the course of the proceeding which led to the imposition of the anti-dumping duty. In addition, as explained in paragraphs 90 and 91 above, the applicant’s market position was substantially affected by the anti-dumping duty to which the contested regulation relates. On those grounds, the applicant must be held to be individually concerned by the contested regulation.
96 Next, in so far as the Commission adds that the applicant was not ‘charged’ with dumping practices and that the contested regulation did not constitute a decision affecting it on the basis of its own conduct, it should be recalled that that regulation imposes a countrywide anti-dumping duty on the import of bioethanol into the European Union, including that manufactured by the applicant. The question of exactly who implemented the dumping practices in question is therefore irrelevant for the purpose of determining whether the applicant is individually concerned by the contested regulation. It suffers from the fact that there is a dumping practices charge even if it has not been charged with such practices itself.
97 Lastly, in so far as the Council contends that the applicant is not individually concerned under the terms of paragraph 45 of the judgment of 28 February 2002 in BSC Footwear Supplies and Others v Council (T‑598/97, ECR, EU:T:2002:52), because it cannot be regarded as one of the producers or exporters ‘who are charged with practising dumping’, it must be held that it is not a necessary condition that an undertaking — the standing to bring proceedings of which is being examined — is charged with dumping practices in order to conclude that that undertaking is individually concerned. According to the case-law cited in paragraph 50 above, the recognition of the right of certain categories of economic operators to bring an action for the annulment of an anti-dumping regulation cannot prevent other operators also from claiming to be individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons. In this connection, it should be observed that charging a producer or an exporter with dumping is a factor that may distinguish that producer or exporter individually, but it is not a prerequisite for those economic operators. Thus, the courts of the European Union have acknowledged the individual concern of such economic operators without requiring that they could be charged with the dumping practices (judgments in Allied Corporation and Others v Council, cited in paragraph 46 above, EU:C:1985:227, paragraph 4; Shanghai Bicycle Corporation v Council, cited in paragraph 55 above, EU:T:1997:134, paragraph 39; and Champion Stationery and Others v Council, cited in paragraph 55 above, EU:T:1998:266, paragraph 47).
98 Therefore, the Council’s argument that the applicant is not individually concerned because it does not qualify as a producer or exporter that is ‘charged with practising dumping on the basis of data relating to [its] commercial activities’ cannot be accepted. If it were otherwise, this would be contrary to the principle, as set out in the case-law cited in paragraphs 46 to 50 above, that it is conceivable that importers as well as European Union producers may also have standing to bring proceedings.
99 Second, the Council, supported by the Commission, submits that the element that distinguishes some undertakings from other undertakings in the value chain is the fact that the dumping was established by reference to data provided by them and relating to their commercial activities. The Council and the Commission refer in that regard to the case-law relating to the individual concern of related importers. More specifically, the Commission observes that it is apparent from the judgment in Nashua Corporation and Others v Commission and Council, cited in paragraph 47 above (EU:C:1990:115), and the order of 7 March 2014 in FESI v Council (T‑134/10, EU:T:2014:143), that the decisive factor is whether the institutions have actually used the data in a manner that individualises the undertaking that has provided the data.
100 In this connection, it must be pointed out that the case-law relied on by the Commission is not relevant to the present case because the applicant’s situation is not comparable to that of a related importer. The case-law draws a distinction concerning the conditions under which producers and exporters, on the one hand, and importers, on the other, are individually concerned by regulations imposing anti-dumping duties (judgments in Nashua Corporation and Others v Commission and Council, cited in paragraph 47 above, EU:C:1990:115, paragraphs 14 and 15, and Gestetner Holdings v Council and Commission, cited in paragraph 47 above, EU:C:1990:116, paragraphs 17 and 18).
101 Furthermore, contrary to what the Council maintains, the fact that it decided not to use the data provided by the sampled producers of bioethanol to calculate an individual dumping margin for them, a point that is specifically challenged by the applicant under its first plea in law, cannot preclude the admissibility of an action brought by a sampled producer.
102 In this connection, it must be pointed out that the Court held, in the Shanghai Bicycle v Council case (EU:T:1997:134, cited in paragraph 55 above, paragraph 38) in which a single anti-dumping duty was imposed on imports of the product concerned originating in the People’s Republic of China, that the judicial protection afforded to undertakings individually concerned by an anti-dumping duty cannot be affected by the mere fact that the duty in question is a single duty and is imposed by reference to a State and not to individual undertakings. For the same reason, the fact that the anti-dumping duty imposed by the contested regulation in the present case is a single anti-dumping duty, imposed on a countrywide basis and not by reference to sampled producers, cannot preclude the applicant being afforded judicial protection.
103 First, the mere use of samples by the institutions cannot constitute a valid ground for denying producers outside the sample, whose data were not used by the institutions, standing to bring proceedings. This is clear, in particular, from the judgment of 11 July 1996 in Sinochem Heilongjiang v Council (T‑161/94, ECR, EU:T:1996:101, paragraphs 47 and 48), in which the Court held that the fact that the Commission decided not to accept the information provided by an exporter with regard to the central points at issue in the case did not affect the finding that that exporter was concerned by the preliminary investigations. The same is therefore true, a fortiori, of the situation of a producer forming part of a sample.
104 Second, the effect of making the admissibility of an action brought by a producer or an exporter included in the sample turn on the use of data provided by it would be to allow the Council, at its pleasure, to remove the application of the provisions of the basic regulation to producers such as those in the present case from any direct review by the General Court.
105 Therefore, the argument that the element that distinguishes some undertakings from others in the value chain is the fact that the dumping was established by reference to data provided by them must be rejected.
106 Consequently, it is clear from the findings made in paragraphs 94 to 105 above that the arguments of the Council and the Commission that the applicant is not individually concerned by the contested regulation must be rejected.
– The existence of alternative legal remedies
107 The Commission contends that the applicant is not deprived of legal remedies should it wish to start exporting bioethanol to the European Union. First, in its contracts with the importers, it could agree to bear the customs duties in order to be able to challenge the customs debt before the courts of the Member States. Second, the applicant also has the possibility of requesting a ‘newcomer review’ under Article 11(4) of the basic regulation. According to the Commission, under that provision, new exporters in the exporting country in question, which have not exported the product during the period of investigation on which the measures were based, are entitled to the initiation of such a newcomer review where they can show that they have actually exported to the European Union following the investigation period, or where they can demonstrate that they have entered into an irrevocable contractual obligation to export a significant quantity of products to the European Union. The duty in force is repealed for those imports, which are subject to registration. The institutions carry out an accelerated review, at the end of which they establish whether there is dumping in respect of the new exporter. If so, they levy the duty retroactively.
108 First of all, it should be stated that whether the applicant has other legal remedies in order to assert its rights has no bearing on the examination of direct and individual concern in relation to the contested regulation.
109 Next, in so far as, by that argument, the Commission proposes that the producer or exporter sell the goods under the commercial contracts implementing condition (incoterm) ‘Delivered Duty Paid’ (DDP) in order to be able to challenge the communication of the customs debt by the national authorities before the national courts, or structure a commercial transaction with a buyer in the European Union with the sole objective of being able to challenge the customs debt before the national courts and possibly before the Court of Justice, it must be pointed out that, in accordance with the considerations set out in paragraphs 46 to 50 and 84 above, no such restriction exists on the admissibility of an action for annulment brought by producers such as the applicant. As observed in paragraphs 71 and 72 above, anti-dumping duties attach to the product in question. It follows that the contractual links between an exporter and a producer have no bearing on whether the conditions laid down in that case-law have to be satisfied. Consequently, the Commission’s argument on that point must be rejected.
110 Lastly, in so far as the Commission relies on the possibility of requesting a newcomer review under Article 11(4) of the basic regulation, first, it is clear that the fourth subparagraph of Article 11(4) expressly excludes the possibility of such a review in situations in which the Commission has used the sampling method. Second, Article 11(4) does not constitute, in any event, an appropriate alternative legal remedy for a producer that satisfies the conditions laid down in the case-law cited in paragraph 46 above. It does not enable it, for example, to remedy the effects of the anti-dumping duty on its production where the producer in question has not started to export that production directly to the European Union. Consequently, that argument must be rejected.
111 It follows from all the foregoing that the applicant does have standing to bring the present action under the terms of the second situation referred to in the fourth paragraph of Article 263 TFEU.
Interest in bringing proceedings
112 The Commission submits that the applicant does not have a vested and present interest in the annulment of the contested regulation. It contends that the applicant has not contested the fact that it had not exported any bioethanol to the European Union during the investigation period, nor has it demonstrated that it had started to do so at the date on which the application was lodged. It contends that none of its sales were therefore subject to the anti-dumping duty imposed by the contested regulation. As a result, the annulment of the contested regulation is not capable of having legal consequences for the applicant.
113 The applicant contests those arguments.
114 In this connection, it must be recalled that, under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, submissions made in the statement in intervention must be limited to supporting the form of order sought by one of the main parties. Furthermore, under Article 142(3) of the Rules of Procedure, the intervener must accept the case as he finds it at the time of his intervention. It follows that the Commission is not entitled to raise a plea of inadmissibility, based on the applicant having no interest in bringing proceedings, which was not raised by the Council, and that the Court is therefore not bound to consider the present plea of inadmissibility. However, since this is a plea of inadmissibility involving public policy considerations, the Court should examine of its own motion the applicant’s interest in bringing proceedings (see, to that effect, judgment of 24 March 1993 in CIRFS and Others v Commission, C‑313/90, ECR, EU:C:1993:111, paragraphs 20 to 23).
115 It should be stated that an interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (judgment of 10 April 2013 in GRP Security v Court of Auditors, T‑87/11, EU:T:2013:161, paragraph 44) and 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. The interest in bringing proceedings must continue until the final decision (see judgment of 7 June 2007 in Wunenburger v Commission, C‑362/05 P, ECR, EU:C:2007:322, paragraph 42 and the case-law cited).
116 An interest in bringing proceedings presupposes that the action is likely, if successful, to procure an advantage to the party bringing it (see, to that effect, judgments of 19 July 2012 in Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, ECR, EU:C:2012:471, paragraph 46 and the case-law cited, and 18 March 2009 in Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, ECR, EU:T:2009:72, paragraph 43 and the case-law cited).
117 In the present case, suffice it to state that, in essence, the Commission submits that the anti-dumping duty imposed by the contested regulation does not affect the bioethanol manufactured by the applicant on the ground that it is exported by the traders/blenders. However, it has already been held in paragraph 67 above that the applicant was a producer of the product which — when imported into the European Union — was subject to the anti-dumping duty. Consequently, the applicant does have an interest in bringing proceedings in the present case in so far as the annulment of the anti-dumping duty imposed by the contested regulation, which is imposed on imports into the European Union of bioethanol produced by it, is likely to procure an advantage to it.
118 The Commission’s arguments that the applicant does not have an interest in bringing the present action must therefore be rejected.
Substance
119 By its first plea in law, the applicant claims, in essence, that by refusing to calculate an individual dumping margin and by establishing in its place a countrywide dumping margin, the Council infringed several provisions of the basic regulation and was in breach of the principles of legal certainty, legitimate expectations and sound administration.
120 The first plea in law is divided into five parts. The first part concerns an infringement of Article 2(8) of the basic regulation as regards the determination of the export price. The second part concerns an infringement of Article 9(5) of that regulation, which sets out the obligation on the institutions to impose individual duties for each supplier. The third part concerns a manifest error of assessment of the relevant facts. The fourth part concerns alleged infringements of Article 18(1), (3) and (4) of that regulation, relating respectively to use of the best facts available, in that the institutions used data provided by the unrelated traders/blenders to calculate a countrywide dumping margin. Lastly, the fifth part concerns a breach of the principles of legal certainty, legitimate expectations and sound administration.
121 It is appropriate, next, to begin by examining the second part of the first plea in law.
122 By the second part of the first plea in law, the applicant claims, in essence, that the Council ought to have calculated an individual dumping margin and an individual anti-dumping duty for the applicant. In using instead a countrywide dumping margin and anti-dumping duty for all parties operating in the bioethanol industry in the United States, the Council infringed Article 9(5) of the basic regulation, and was in breach of the principles of legal certainty and legitimate expectations and of its obligation to state reasons.
123 More specifically, the applicant submits that Article 9(5) of the basic regulation transposes into EU law Articles 6.10 and 9.2 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 WTO Anti-Dumping Agreement’). According to the applicant, Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement impose an obligation to calculate individual dumping margins and assign individual anti-dumping duties to producers and exporters, except in respect of ‘exporters’ not included in the sample in the case of sampling and except in the case of exporters that form a single economic entity with the State. Therefore, the Commission’s interpretation of the term ‘impracticable’, used in Article 9(5) of the basic regulation, to the effect that it is possible to apply derogations to the obligation to assign individual dumping margins and anti-dumping duties other than those referred to above, such as the structure of US bioethanol exports or the way in which the product is exported, is wrong and unlawful.
124 The Council, supported by ePure, contests those arguments. In essence, first, it submits that, where the institutions are unable to trace each purchase or to compare the normal values with the corresponding export prices, as in the present case, Article 9(5) of the basic regulation cannot require them to specify individual anti-dumping measures for each producer. It would be impossible for the Council to do so. Second, it contends that the term ‘impracticable’ used in Article 9(5) of the basic regulation is broader in scope than that used in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, which would therefore enable in the present case the application of an exception to the obligation to assign individual dumping margins and anti-dumping duties.
125 In this connection, it must be pointed out that the first subparagraph of Article 9(5) of the basic regulation, in its original version, which is applicable in the present case since the second paragraph of Article 2 of Regulation (EU) No 765/2012 of the European Parliament and of the Council of 13 June 2012 amending the basic regulation (OJ 2012 L 237, p. 1) provides that the amended version of Article 9(5) of the basic regulation is to apply to all investigations initiated following the entry into force of Regulation No 765/2012, states that an anti-dumping duty is to be imposed in the appropriate amounts in each case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except for imports from those sources from which undertakings under the terms of the basic regulation have been accepted. The same subparagraph provides also that the regulation imposing the duty is to specify the duty for each supplier or, if that is impracticable, and in general where Article 2(7)(a) of the basic regulation applies, the supplying country concerned.
126 Article 6.10 of the WTO Anti-Dumping Agreement provides as follows:
‘The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated.’
127 Article 9.2 of the WTO Anti-Dumping Agreement provides as follows:
‘When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned.’
128 In order to determine whether the Council was entitled to calculate a countrywide dumping margin and, consequently, impose a countrywide anti-dumping duty, it is therefore appropriate to examine, first, whether the WTO Anti-Dumping Agreement is relevant to the interpretation of Article 9(5) of the basic regulation in the present case; second, whether the applicant has, as a general rule, a right to have applied to it an individual anti-dumping duty under Article 9(5) of the basic regulation; and, third, whether the Council was entitled to take the view that there was an exception to that general rule, on the ground that it was ‘impracticable’ to specify in the contested regulation the individual amounts for the applicant.
Application of the WTO Anti-Dumping Agreement in the present case
129 It is clear from the preamble to the basic regulation, and in particular recital 3 thereof, that the purpose of that regulation is, inter alia, to transpose into EU law the new and detailed rules contained in the WTO Anti-Dumping Agreement (see, by analogy, judgments of 9 January 2003 in Petrotub and Republica v Council, C‑76/00 P, ECR, EU:C:2003:4, paragraphs 55 and 56, and 24 September 2008 in Reliance Industries v Council and Commission, T‑45/06, ECR, EU:T:2008:398, paragraph 89). Furthermore, that same recital states that, in order to ensure a proper and transparent application of those rules, the language of the agreement should be brought into EU legislation as far as possible. The rules listed in that recital, which are transposed into EU law by the basic regulation, include, inter alia, those relating to the imposition of anti-dumping duties, namely Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement.
130 However, it has repeatedly been held that, given their nature and purpose, the agreements of the World Trade Organisation (WTO), of which the WTO Anti-Dumping Agreement forms part, are not in principle among the rules in the light of which the courts of the European Union are to review the legality of measures adopted by the institutions of the European Union (see judgments in Petrotub and Republica v Council, cited in paragraph 129 above, EU:C:2003:4, paragraph 53 and the case-law cited, and of 18 December 2014 in LVP, C‑306/13, ECR, EU:C:2014:2465, paragraph 44 and the case-law cited).
131 Furthermore, the Court of Justice has held that to accept that the courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would effectively deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, including the European Union’s most important commercial partners, have 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 accepted, would risk introducing an imbalance in the application of the WTO rules (see judgments of 9 September 2008 in FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, ECR, EU:C:2008:476, paragraph 119 and the case-law cited, and LVP, cited in paragraph 130 above, EU:C:2014:2465, paragraph 46 and the case-law cited).
132 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 specific provisions of the WTO agreements that the courts of the European Union can review the legality of the EU measure at issue in the light of the WTO rules (see judgments in Petrotub and Republica v Council, cited in paragraph 129 above, EU:C:2003:4, paragraph 54 and the case-law cited, and LVP, cited in paragraph 130 above, EU:C:2014:2465, paragraph 47 and the case-law cited).
133 As regards the transposition of the WTO Anti-Dumping Agreement by Article 9(5) of the basic regulation, it should be observed that that provision, the original version of which is applicable in the present case, was amended by Regulation No 765/2012 because of the adoption, by the WTO Dispute Settlement Body (‘the DSB’), of the Report of the Appellate Body of 15 July 2011 (WT/DS397/AB/R, ‘the Report of the Appellate Body of 15 July 2011 in the “fasteners” case’) and the Report of the Panel of 3 December 2010 (WT/DS397/R), modified by the Report of the Appellate Body, in the case entitled ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (‘the “fasteners” case’).
134 In the preamble to Regulation No 765/2012, the legislature of the European Union states that, in the WTO Reports, it was found, inter alia, that Article 9(5) of the basic regulation was inconsistent with Articles 6.10, 9.2 and 18.4 of the WTO Anti-Dumping Agreement and Article XVI:4 of the Agreement Establishing the WTO (OJ 1994, L 336, p. 3). The legislature of the European Union confirmed, in recitals 5 and 6 of Regulation No 765/2012, that it had made amendments to Article 9(5) of the basic regulation with the intention of implementing the recommendations and rulings of the DSB in the ‘fasteners’ case in a manner that complied with the European Union’s WTO obligations.
135 It is clear that it follows from the very adoption of Regulation No 765/2012 that the legislature of the European Union considered that, by Article 9(5) of the basic regulation, the European Union had intended to implement a particular obligation assumed in the context of the WTO contained, in this instance, in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement.
136 First, it follows from those findings that Regulation No 765/2012 acknowledges that Article 9(5) of the basic regulation transposes into EU law the obligations arising under Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, as the applicant correctly notes.
137 Second, it must be noted that the amendments to the wording of Article 9(5) of the basic regulation made under Regulation No 765/2012 concern the amendment of an exception to the obligation to impose individual anti-dumping duties in relation to exporters to whom Article 2(7)(a) of the basic regulation applied. They do not relate, in essence, to the part of Article 9(5) of the basic regulation that is relevant to the present case and according to which the regulation imposing the duty is to specify the duty for each supplier or, if that is impracticable, the supplying country concerned.
138 More specifically, it must be noted that the legislature of the European Union did not consider it necessary to amend the term ‘imports of a product from all sources found to be dumped and causing injury’ or the terms ‘supplier’ and ‘impracticable’ for the purpose of implementing the recommendations and rulings of the DSB in the ‘fasteners’ case in a manner that complied with its WTO obligations. Therefore, the relevant terms in the present case have the same meaning in Article 9(5) of the basic regulation in its original version as in the version following the amendment by Regulation No 765/2012.
139 Consequently, it follows from the foregoing considerations that Article 9(5) of the basic regulation in its original version, in so far as it is relevant to the present case, must be interpreted in a manner that is consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement.
Whether the applicant has a right to have applied to it an individual anti-dumping duty under Article 9(5) of the basic regulation
140 The applicant submits that a producer included in the sample, such as the applicant, has the right to have applied to it an individual anti-dumping duty under Article 9(5) of the basic regulation.
141 The Council contends that neither the WTO Anti-Dumping Agreement nor the basic regulation requires the institutions to do the ‘impossible’. Where the institutions are unable to trace each purchase or to compare the normal values with the corresponding export prices, as in the present case, they are not required to impose individual anti-dumping measures for each producer.
142 In determining whether a sampled producer of the dumped product had a right to have applied to it an individual anti-dumping duty, it should be observed that Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement lay down that, in principle, an anti-dumping duty is to be imposed individually on each supplier on imports of a product from all sources found to be dumped and causing injury. It is clear from the wording of those provisions that an operator that is not considered to have the status of ‘supplier’ has no right to the imposition of an individual anti-dumping duty.
143 In that context, it should be observed that point (a)(i) of paragraph 624 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case states that Article 9(5) of the basic regulation concerns not only the imposition of anti-dumping duties, but also the calculation of dumping margins.
144 As regards WTO law, it must be noted that, in cases where the authorities apply a sampling method, Article 6.10.2 of the WTO Anti-Dumping Agreement provides that they must determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome to the authorities and prevent the timely completion of the investigation.
145 It follows from that provision that, except where the number of exporters or producers is very large, the investigating authority is supposed to determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation. In this connection, in paragraph 6.90 of the Report of the Panel of 28 September 2001 (WT/DS189/R) in the case entitled ‘Argentina — Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy’, it was observed that the general rule in the first sentence of Article 6.10 of the WTO Anti-Dumping Agreement, that individual margins of dumping be determined for each known exporter or producer of the product under investigation, is fully applicable to exporters who are selected for examination under the second sentence of Article 6.10. The second sentence of Article 6.10 allows an investigating authority to limit its examination to certain exporters or producers, but it does not provide for a derogation from the general rule that individual margins be determined for those exporters or producers that are examined. If even producers that were not included in the original sample are entitled to an individual margin calculation, then it follows, according to the report, that producers that were included in the original sample are so entitled as well.
146 Therefore, it must be held that the investigating authority is supposed to determine an individual margin of dumping for any exporter or producer included in the sample of suppliers of the dumped product.
147 It follows that, under WTO law, any exporter or producer included in the sample and who then cooperated with the investigating authority throughout the investigation satisfies the conditions for being considered to be a ‘supplier’ within the meaning of Article 9.2 of the WTO Anti-Dumping Agreement.
148 As regards the provisions of the basic regulation, it must be observed that, as already stated in paragraphs 138 and 139 above, Article 9(5) of that regulation in its original version, in so far as it is relevant to the present case, must be interpreted in a manner that is consistent with the provisions of the WTO Anti-Dumping Agreement. Furthermore, Article 17(1) of the basic regulation also provides that, in cases where the number of complainants, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples. Article 17(3) of the basic regulation states that, where the Commission uses sampling, an individual margin of dumping is, nevertheless, to be calculated for any exporter or producer not initially selected who submits the necessary information within the time limits provided for, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of the investigation in good time. It must be noted that it is also clear from those provisions of the basic regulation, interpreted in a manner that is consistent with WTO law, that, even if producers that were not included in the original sample are entitled to an individual margin calculation, a fortiori, producers that were included in the original sample are so entitled as well. In this connection, it should also be pointed out that the last sentence of Article 9(6) of the basic regulation states that individual duties are to be applied to imports from any exporter or producer which is granted individual treatment, as provided for in Article 17 of that regulation.
149 It follows that, in accordance with the provisions of the basic regulation, any exporter or producer included in the sample of suppliers of the dumped product and who then cooperated with the institutions throughout the investigation satisfies the conditions for being considered to be a ‘supplier’ within the meaning of Article 9(5) of that regulation.
150 In this connection, it must be recalled that the objective of selecting a sample of exporting producers is to establish as precisely as possible, in a limited investigation, the pressure on prices to which the European Union industry is subjected. Therefore, the Commission has the power to alter, at any time, the composition of a sample according to the needs of the investigation. Indeed, no provision in the WTO Anti-Dumping Agreement or in the basic regulation requires the institutions to retain the producers initially sampled in the sample of suppliers of the dumped product if the institutions consider that those producers do not have the status of suppliers or that they do not constitute sources of the imports of the dumped product causing injury. As regards whether an operator ought to be retained in a sample, it must be noted that the Commission enjoys a broad discretion by reason of the complexity of the economic, political and legal situations which it has to examine (see, by analogy, judgment of 27 September 2007 in Ikea Wholesale, C‑351/04, ECR, EU:C:2007:547, paragraph 40). However, to the extent that the Commission does not exclude any producer forming part of the sample of suppliers of the dumped product, it is, in principle, required to calculate an individual dumping margin and to impose an individual anti-dumping duty for each of those producers.
151 It is in the light of those considerations that the Court should examine whether the applicant had a right to have applied to it an individual anti-dumping duty under Article 9(5) of the basic regulation.
152 In the present case, it should be noted, first of all, that although the Commission excluded a producer initially sampled on the ground that the bioethanol manufactured by it had not been exported to the European Union and that, consequently, it was not a source of the dumped product, it nevertheless retained the other sampled US producers, including the applicant, in the sample of suppliers of the dumped product until the end of the administrative proceeding.
153 As regards the existence of imports into the European Union of bioethanol from the sampled US producers and found to be dumped and causing injury, it was stated, in paragraphs 56 to 67 above, that part of the bioethanol manufactured by them had been exported to the European Union and that the exports from that production were, from the coming into force of the contested regulation, subject to the anti-dumping duty it had imposed. Furthermore, paragraph 338 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case states that the requirements set out in Article 9.2 of the WTO Anti-Dumping Agreement, that anti-dumping duties be collected in appropriate amounts in each case and from all sources, relate to the individual exporters or producers subject to the investigation. In this connection, recital 60 of the contested regulation states that the investigation covered producers of bioethanol, on the one hand, and traders/blenders which were exporting the product concerned to the European Union market, on the other. It follows that the applicant, as a sampled US producer, is one of the ‘sources’ of the imports of the product subject to the anti-dumping duty imposed by the contested regulation, within the meaning of Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement.
154 In addition, it must be observed that the Council does not contest the fact that the applicant cooperated with the institutions throughout the investigation and that there was therefore no reason to exclude it from the sample for non-cooperation.
155 Moreover, it must be pointed out that the institutions did not exclude the applicant from the sample because it did not have the status of supplier. On the other hand, in recital 63 of the contested regulation, the Council states that the structure of the bioethanol industry and the way the product concerned was produced and sold in the US market and exported to the European Union made it impracticable to establish individual dumping margins for US producers. According to the Council, it was unable — with regard to the sampled producers — to trace purchases individually or to compare the normal values with the relevant export prices, and it concluded that it was not possible for it to determine individual dumping margins under Article 9(5) of the basic regulation. It appears from that reasoning that the Council wished to apply the anti-dumping duty to products manufactured by the sampled US producers without drawing a distinction between situations in which they were exported by the traders/blenders and situations in which they were exported by the sampled US producers.
156 It follows that, by retaining the applicant as a member of the sample of US producers and exporters, the Commission therefore recognised that it was a ‘supplier’ of the dumped product and, consequently, that the Council was, in principle, required, under Article 9(5) of the basic regulation, to calculate an individual dumping margin and to impose individual anti-dumping duties for the applicant.
157 That finding is not called in question by the Council’s argument that, where the institutions are unable to trace each purchase or to compare the normal values with the corresponding export prices, as in the present case, they are not required to impose individual anti-dumping measures for each producer.
158 At the outset, it must be noted that that the Court of Justice held in the judgment of 15 November 2012 in Zhejiang Aokang Shoes v Council (C‑247/10 P, EU:C:2012:710, paragraph 33) that Article 2(7) of the basic regulation is one of the provisions of that regulation concerned solely with the determination of normal value, whereas Article 17 of that regulation — concerning sampling — is one of the provisions relating to, inter alia, the methods available for determining the dumping margin and that, therefore, the provisions differ in purpose and content. In this connection, it must be observed that the same principle applies, by analogy, to the relationship between Article 2(8) and (9) of the basic regulation concerning one of the relevant values for calculating the dumping margin, on the one hand, and Article 9(5) of that regulation concerning the dumping margin itself, on the other. Therefore, the provisions of the basic regulation concerning the determination of normal value or the export price differ in content and purpose from the provisions relating to the methods available for determining the dumping margin, such as those provided for in Article 9(5) and Article 17 of that regulation.
159 Furthermore, it is also apparent from paragraph 325 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case that the fact that an authority has to reconstruct normal value and/or the export price for one or more exporters or producers does not necessarily imply an exception to the general rule relating to the determination of individual dumping margins and that dumping margins based on constructed normal value and export price based on the same information for many suppliers are not the same as a country-wide margin.
160 In this connection, it should be pointed out that neither Article 9(5) of the basic regulation nor Articles 6.10 or 9.2 of the WTO Anti-Dumping Agreement provide that the institutions must be able to trace each purchase and to compare the normal values with the corresponding export prices in order to be required to calculate an individual dumping margin and to impose an individual anti-dumping duty for each supplier. Such difficulties therefore have no bearing on whether an individual anti-dumping duty has to be imposed and it should be observed that, within the framework of the basic regulation, there are other instruments for remedying such a situation.
161 However, where the institutions encounter difficulties in determining the normal value or the export price for certain producers or exporters, Article 2(3) and (9) of the basic regulation sets out the rules relating to the possibility of reconstructing those values.
162 Thus, as the Council recognised at the hearing, Article 2(9) of the basic regulation provides that, in cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis. In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, is to be made so as to establish a reliable export price, at the European Union frontier level.
163 Furthermore, and on a different point, Article 18(1) and (3) of the basic regulation lays down the conditions under which the institutions may use the facts available where an interested party does not provide necessary information or where it provides information that is not ideal in all respects, respectively. It was stated, inter alia, in paragraphs 7.215 to 7.216 of the Report of the Panel of 22 April 2003 (WT/DS241/R) in the case entitled ‘Argentina — Definitive Anti-Dumping Duties on Poultry from Brazil’, that the fact that the investigating authority receives information that is not usable or is unreliable should not prevent the calculation of an individual margin of dumping for an exporter, since the WTO Anti-Dumping Agreement expressly allows investigating authorities to complete the data with regard to a particular exporter in order to determine a dumping margin if the information provided is unreliable or necessary information is simply not provided.
164 In the present case, as regards the normal value with regard to the sampled producers, it is clear from paragraph 45 of the provisional disclosure document that the Commission itself explained that it was able to reconstruct, pursuant to Article 2(3) of the basic regulation, the normal value with regard to those producers on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits. The Council does not contest that statement.
165 In so far as the Council states, in recital 76 of the contested regulation, that an export price and a dumping margin could not reliably be established for the sampled US producers, which included the applicant, it must be pointed out that Article 2(9) of the basic regulation allows an export price to be reconstructed in cases where there is no export price for an operator covered by the investigation. Indeed, as stated in paragraph 162 above, that provision allows the export price to be reconstructed on the basis of the price at which the imported products are first resold to an independent buyer or on any other reasonable basis, with appropriate adjustments. In this connection, it should be recalled that it follows from the case-law cited in paragraph 158 above, that although Article 2(8) and (9) of the basic regulation exhaustively lays down the possible methods for determining the export price, a difficulty in determining the latter has no bearing on whether there is an obligation to apply an individual anti-dumping duty to certain operators.
166 The Council’s argument that the institutions were not required to impose individual anti-dumping duties for each sampled producer in the present case must therefore be rejected.
167 In that context, the Commission contends, in support of the Council’s arguments, that the proposition that the term ‘supplier’ used in Article 9(5) of the basic regulation includes producers that have not themselves exported the product concerned to the European Union cannot be reconciled with the possibility of requesting a newcomer review under Article 11(4) of that regulation if they decide one day to start exporting to the European Union. In this connection, first, suffice it to point out that the fourth subparagraph of Article 11(4) expressly excludes the possibility of such a review in a situation in which the Commission has used the sampling method, as in the present case. Second, and in any event, it must be observed that, under the second subparagraph of Article 11(4), the review is to be initiated only where a new exporter or producer can show that it is not related to any of the exporters or producers which are subject to the anti-dumping measures on the product in question. Given that the applicant is a producer whose products are subject to the anti-dumping duty in the present case, it would not be eligible for a newcomer review if it started to export its products itself. That argument must therefore be rejected as unfounded.
168 In the light of the finding set out in paragraph 156 above, it is therefore appropriate, next, to examine whether the Council was entitled to rely on an exception to the obligation to determine an individual dumping margin for the applicant in the present case.
Whether it was impracticable to impose an individual anti-dumping duty in the present case
169 The next aspect of the dispute between the parties is focused on the interpretation of the term ‘impracticable’ used in Article 9(5) of the basic regulation.
170 According to the applicant, the term ‘impracticable’ must, in essence, be interpreted in a manner that is consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement and with the terms of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case.
171 The Council submits that the second subparagraph of Article 9(5) of the basic regulation is broader in scope than those provisions of the WTO Anti-Dumping Agreement, on the ground that it does not specify the circumstances in which it is ‘impracticable’ to apply individual duties. It refers in this connection to the principle that the EU authorities have to interpret EU legislation, so far as possible, in a manner that is consistent with international law. Accordingly, the Council submits, in essence, that that difference on its own justifies a different interpretation of the term ‘impracticable’ in the context of Article 9(5) of the basic regulation.
172 In the first place, it is appropriate to examine whether Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement allow an exception to be made to the obligation to determine an individual margin of dumping for each known exporter or producer concerned that might justify the imposition of a countrywide anti-dumping duty in the present case.
173 As regards Article 6.10 of the WTO Anti-Dumping Agreement, paragraphs 316 to 318 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case state that the first sentence of Article 6.10, that the authorities ‘shall ... determine’ an individual margin of dumping for each known exporter or producer concerned, lays down a mandatory rule and does not connote a preference. Those paragraphs also state that that obligation is not absolute and that there is ‘the possibility of exceptions’. Sampling is the only exception to the determination of individual dumping margins for each known exporter or producer concerned that is expressly provided for in Article 6.10 of that agreement. Thus, the second sentence of Article 6.10 provides for an exception in cases where the number of exporters, producers, importers or types of products involved is so large as to make such determinations impracticable. In such cases, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples that are statistically valid, or to the largest percentage of the volume of exports from the country in question that can reasonably be investigated.
174 According to paragraph 320 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case, the objective of the term ‘shall, as a rule, determine’, in Article 6.10 of the WTO Anti-Dumping Agreement, is to not express an obligation that would conflict with other provisions in the same agreement permitting derogation from the rule to determine individual margins of dumping apart from the sampling exception. Such exceptions ought to be provided for in the agreements covered by the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘the covered agreements’) so as to avoid the circumvention of the obligation to determine individual margins of dumping. However, the Members of the WTO do not have ‘an open-ended possibility to create exceptions’ to Article 6.10 of the WTO Anti-Dumping Agreement.
175 In paragraph 323 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case, the Appellate Body rejected the argument that the assigning of the dumping margin of the producer to the trader that exports the product is an exception. The reference to ‘exporters or producers’ in Article 6.10 of the WTO Anti-Dumping Agreement allows the authorities to determine not a separate margin of dumping for the producer and the exporter of the same product, but to determine a single margin for both. That constitutes an application of the obligation to determine individual margins of dumping.
176 According to paragraph 327 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case, any exception to the general rule laid down in the first sentence of Article 6.10 of the WTO Anti-Dumping Agreement must therefore be provided for in the covered agreements.
177 Lastly, it is stated, in paragraph 328 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case, that the WTO agreements do not provide for any exception such as that referred to in Article 9(5) of the basic regulation, concerning individual exporting producers in a non-market economy country, to whom Article 2(7) of the basic regulation applies and who are subject to a countrywide anti-dumping duty, unless those exporters can demonstrate that they satisfy the conditions for individual treatment.
178 As regards Article 9.2 of the WTO Anti-Dumping Agreement, it is explained in paragraph 344 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case that there is significant parallelism between Article 9.2 and Article 6.10 of the WTO Anti-Dumping Agreement, inasmuch as the latter requires the determination of individual margins of dumping, the consequence of which is that the authorities in question are required to impose anti-dumping duties on an individual basis as is provided for in Article 9.2 of that agreement. Furthermore, the Appellate Body noted that the term ‘impracticable’ is used in both of those provisions to describe when the exception applies, thereby indicating that both exceptions refer to a situation in which an authority determines dumping margins based on sampling. However, the WTO Appellate Body also observed that the question before it did not concern the scope of the exception provided for in Article 9.2 of the WTO Anti-Dumping Agreement, nor did it concern whether that exception and the exception provided for in Article 6.10 of that agreement overlapped exactly.
179 However, in paragraph 354 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case, it is concluded that Article 9.2 of the WTO Anti-Dumping Agreement requires the authorities to specify the duties imposed on each supplier, except where this is impracticable, when several suppliers are involved.
180 Lastly, paragraph 376 of the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case states that Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement do not preclude the investigating authority from determining a single dumping margin and a single dumping duty for a number of exporters if it establishes that they constitute a single entity for the purposes of applying those provisions.
181 Therefore, it is clear from examining the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case that, where the authority uses sampling — as in the present case — the anti-dumping agreement establishes the obligation to determine individual dumping margins and to impose individual anti-dumping duties for each supplier cooperating in the investigation and that there are, in principle, exceptions to that obligation, first, in the case of producers or exporters not included in the sample, apart from those referred to in Article 6.10.2 of the WTO Anti-Dumping Agreement, and, second, in the case of operators constituting a single entity. However, it does not follow from the WTO Anti-Dumping Agreement that there is an exception to the obligation to impose an individual anti-dumping duty on a sampled producer which cooperated in the investigation where the institutions consider that they are unable to establish an individual export price for that producer.
182 In the second place, it is necessary to examine whether the findings in the Report of the Appellate Body of 15 July 2011 in the ‘fasteners’ case concerning the interpretation of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement apply also where the Council applies Article 9(5) of the basic regulation.
183 As regards the Council’s argument that the obligation to interpret the basic regulation in the light of the WTO Anti-Dumping Agreement is limited on the ground that the wording of the provisions in question differs, first, it must be recalled that Article 9(5) of the basic regulation and Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement all use the term ‘impracticable’. In addition, it should be observed that there is nothing in the wording of Article 9(5) of the basic regulation that precludes an interpretation of the term ‘impracticable’ consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. Furthermore, the mere fact that Article 9(5) of the basic regulation provides no details with regard to the term ‘impracticable’ does not lead to the conclusion that Article 9(5) thus provides for an exception that is broader in scope than that provided for in the provisions of the WTO Anti-Dumping Agreement, as the Council contends.
184 Second, it must be recalled that it is clear from the wording of Article 9(5) of the basic regulation that the determination of a countrywide dumping margin and the imposition of a countrywide anti-dumping duty is an exception to the general rule. A ‘broader’ interpretation of the term ‘impracticable’ such as is proposed by the Council would allow it an extremely broad discretion as regards the possibility of not imposing individual anti-dumping duties. Such an interpretation would run counter to the legislature’s objective of implementing the recommendations and rulings of the DSB in the ‘fasteners’ case in a manner that complies with its WTO obligations (see paragraph 134 above).
185 It is clear from the preamble to Regulation No 765/2012 that the legislature of the European Union intended to implement the decision of the WTO Appellate Body in that case in full. Specifically, by Article 1 of Regulation No 765/2012, the legislature of the European Union deleted, in the first subparagraph of Article 9(5) of the basic regulation, the reference to Article 2(7)(a) of that regulation, as well as the second subparagraph, which specified the conditions under which individual exporting producers in non-market economy countries could demonstrate that they satisfied the conditions for individual treatment. In addition, it is apparent from recital 2 of Regulation No 765/2012 that the legislature of the European Union inserted a new second subparagraph into Article 9(5) of the basic regulation in order to include the clarifications made by the WTO Appellate Body as to the circumstances in which the authorities may determine a single dumping margin and a single dumping duty for several exporters constituting a single entity.
186 Moreover, as stated in paragraph 137 above, the amendments made to Article 9(5) of the basic regulation do not relate, in essence, to the part that is relevant to the present case and according to which the regulation imposing the duty is to specify the duty for each supplier or, if that is impracticable, the supplying country concerned.
187 It follows that the Council is wrong in contending that the wording of Article 9(5) of the basic regulation and Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, to the extent that it is relevant to the present case, is substantially different. Therefore, the Council’s argument that the term ‘impracticable’, used in Article 9(5) of the basic regulation, is broad in scope must be rejected.
188 It follows from the foregoing that the term ‘impracticable’ used in Article 9(5) of the basic regulation must be interpreted in a manner that is consistent with the analogous term used in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. Consequently, where the authority uses sampling, the term ‘impracticable’ used in Article 9(5) of the basic regulation allows, in principle, for two exceptions to the determination of individual dumping margins and the imposition of individual anti-dumping duties for operators which have cooperated in the investigation, namely, first, in the case of producers or exporters not included in the sample, apart from those in respect of whom Article 17(3) of the basic regulation provides for an individual margin of dumping, and, second, in the case of operators constituting a single entity. In other words, where the institutions use sampling, as in the present case, in principle, an exception to the determination of individual dumping margins and the imposition of individual anti-dumping duties is possible only in respect of undertakings which do not form part of a sample and which do not otherwise have a right to have their own individual anti-dumping duty. In particular, Article 9(5) of the basic regulation does not allow for any exception to the obligation to impose an individual anti-dumping duty on a sampled producer which cooperated in the investigation where the institutions consider that they are not in a position to establish an individual export price for that producer.
189 Therefore, it follows from Article 9(5) of the basic regulation that, where producers and/or exporters form part of a sample, the institutions are required to specify the anti-dumping duties payable by each supplier.
190 In the third place, it is in the light of those considerations that the Court should examine whether, in the present case, the Council was entitled to rely on an exception to the obligation to determine an individual margin of dumping for each known exporter or producer concerned that might justify the imposition of a countrywide anti-dumping duty.
191 In the present case, it is clear from recitals 6 to 10 of the contested regulation that, because of the large number of exporting producers in the United States, the Commission decided to use sampling pursuant to Article 17 of the basic regulation.
192 Recital 64 of the contested regulation states that a countrywide dumping margin was established for the United States. Consequently, the contested regulation imposes a countrywide anti-dumping duty at a rate of EUR 62.30 per tonne net, applicable in proportion, by weight, of the total content of bioethanol.
193 In recital 63 of the contested regulation, the Council justifies the determination of a countrywide dumping margin in the present case by stating that the structure of the bioethanol industry and the way the product in question was produced and sold in the US market and exported to the European Union made it impracticable to establish individual dumping margins for US producers. According to the Council, the producers in the US sample did not export the product concerned to the European Union and the investigated traders/blenders sourced bioethanol from various producers, blended it and sold it, in particular for export to the European Union. Therefore, the Council states that it was not possible to trace all purchases individually and compare the normal values with the relevant export prices, nor was it possible to identify the producer at the moment of the export to the European Union.
194 In essence, the Council submits therefore that it could not determine individual dumping margins under Article 9(5) of the basic regulation on the ground that it was not possible reliably to establish an export price and a dumping margin for the applicant given that it had not made any exports of the product concerned to the European Union during the investigation period, that it was therefore unable to trace the applicant’s products exported to the European Union and that the applicant generally had no idea of the timing of the export nor the price paid or payable by European Union importers (see recital 76 of the contested regulation).
195 In this connection, first, it must be pointed out that the Council has therefore based the application of the exception to the rule of determining individual dumping margins and of imposing individual anti-dumping duties on reasons other than the exception concerning producers or exporters not included in the sample when the authority uses sampling or the exception concerning operators constituting a single entity (see paragraphs 181 and 188 above).
196 Second, it must be noted that the Council has not contended that the exception it applied was based on another exception arising under the covered agreements, to which reference is made in paragraphs 174 and 176 above.
197 Therefore, the Council was wrong in concluding that the imposition of individual anti-dumping duties for the members of the sample of US exporters was ‘impracticable’ within the meaning of Article 9(5) of the basic regulation.
198 As regards the possibility of calculating individual dumping margins, it has been explained in paragraphs 157 to 166 above that, where the institutions encounter difficulties in determining the normal value or the export price for certain producers or exporters, Article 2(3) and (9) of the basic regulation sets out the rules to enable those values to be reconstructed.
199 Furthermore, as regards the considerations that it was not possible to trace the products of the sampled producers that had been exported to the European Union and that the sampled producers generally had no idea of the timing of the export nor the price paid or payable by European Union importers, suffice it to state that the Commission, exercising its broad discretion, could have excluded the applicant from the sample of producers and exporters on the ground that it was not a supplier involved in the export of bioethanol to the European Union, given that — according to the Commission and the Council — it was not identifiable at the moment of the export of the bioethanol to the European Union. Yet the Commission retained the applicant in the sample throughout the investigation.
200 Therefore, the fact that the institutions considered that there were difficulties in tracing individual purchases or in comparing the normal values with the corresponding export prices for the applicant did not permit the inference that, in the present case, the imposition of individual anti-dumping duties for the applicant as a member of the sample of US suppliers was ‘impracticable’ within the meaning of Article 9(5) of the basic regulation.
201 It must be concluded that the contested regulation infringes Article 9(5) of the basic regulation on the ground that it imposes a countrywide anti-dumping duty so far as the applicant is concerned.
202 It follows from the foregoing that the second part of the first plea in law must be upheld and, therefore, the first plea in law must be upheld in its entirety, and it is not necessary to examine the other parts of that plea in law, the other pleas in law in the application, or the arguments raised in the present part by which the applicant relies, in a generic manner, on breaches of the principles of legal certainty and legitimate expectations and of the obligation to state reasons.
203 Therefore, since the second part of the first plea in law has been upheld, and that plea in law has been upheld in consequence, the contested regulation must be annulled in so far as it concerns the applicant.
Costs
204 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.
205 In the present case, since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant in accordance with the form of order sought by the applicant.
206 In accordance with Article 138(1) and (3) of the Rules of Procedure, the Commission and ePure are each to bear their own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber),
hereby:
1. Annuls Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America in so far as it concerns Marquis Energy LLC;
2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Marquis Energy;
3. Orders the European Commission and ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol to bear their own costs.
Dittrich | Schwarcz | Tomljenović |
Delivered in open court in Luxembourg on 9 June 2016.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Application for joinder with Case T‑276/13 Growth Energy and Renewable Fuels Association v Council
Interventions
Measures of organisation of procedure and the oral part of the procedure
Applications for confidential treatment
Forms of order sought
Law
Admissibility
Standing to bring proceedings
– Direct concern
– Individual concern
– The existence of alternative legal remedies
Interest in bringing proceedings
Substance
Application of the WTO Anti-Dumping Agreement in the present case
Whether the applicant has a right to have applied to it an individual anti-dumping duty under Article 9(5) of the basic regulation
Whether it was impracticable to impose an individual anti-dumping duty in the present case
Costs