ORDER OF THE GENERAL COURT (Sixth Chamber)
7 March 2014 (*)
(Action for annulment – Dumping – Extension of the definitive anti-dumping duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and China, as extended to imports of certain footwear with uppers of leather coming from Macao – Association representing independent importers – Lack of individual concern – Regulatory act entailing implementing measures –Inadmissibility)
In Case T‑134/10,
Fédération européenne de l’industrie du sport (FESI), established in Brussels (Belgium), represented by E. Vermulst and Y. van Gerven, lawyers,
applicant,
v
Council of the European Union, represented initially by J.‑P. Hix and B. Driessen, acting as Agents, assisted by G. Berrisch, lawyer, and N. Chesaites, Barrister, and subsequently by J.‑P. Hix and B Driessen, acting as Agents,
defendant,
supported by
European Commission, represented by H. van Vliet and M. França, acting as Agents,
intervener,
APPLICATION for annulment of Council Implementing Regulation (EU) No 1294/2009 of 22 December 2009 imposing a definitive antidumping duty on imports of certain footwear with uppers of leather originating in Vietnam and the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 (OJ 2009 L 352, p. 1),
THE GENERAL COURT (Sixth Chamber),
composed, at the time of the deliberation, of H. Kanninen, President, G. Berardis and C. Wetter (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant – the Fédération européenne de l’industrie du sport (FESI) (Federation of the European Sporting Goods Industry) – is a trade association for the sportswear industry. Some of its members are undertakings engaged in the sale of sports footwear.
2 On 5 October 2006, the Council of the European Union adopted Regulation (EC) No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1; the ‘initial regulation’).
3 By the initial regulation, the Council imposed a definitive anti-dumping duty on imports of footwear with uppers of natural or reconstituted leather, excluding sports footwear, footwear involving special technology, slippers and other indoor footwear and footwear with a protective toecap originating in China and Vietnam and falling within a number of combined nomenclature codes appearing in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended (Article 1(1) of the initial regulation). The rate of the definitive anti-dumping duty applied to the net freeatCommunity-frontier price, before customs clearance, was established at between 9% and 16.5% for footwear produced in China, and at 10% for footwear produced in Vietnam (Article 1(3) of the initial regulation). Pursuant to Article 3 of the initial regulation, that rate was to apply for a period of two years.
4 On 29 April 2008, following an anti-circumvention investigation carried out pursuant to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended (‘the basic regulation’) (replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, with corrigendum OJ 2010 L 7, p. 22)), and specifically on the basis of Article 13(3) of the basic regulation (now Article 13(3) of Regulation No 1225/2009), the Council adopted Regulation (EC) No 388/2008 extending the definitive anti-dumping measures imposed by Regulation No 1472/2006 on imports of certain footwear with uppers of leather originating in the People’s Republic of China to imports of the same product consigned from the Macao SAR (Special Administrative Region), whether declared as originating in the Macao SAR or not (OJ 2008 L 117, p. 1).
5 On 27 June 2008, following a notice announcing the impending expiry of the measures adopted in Regulation No 1472/2006, published in the Official Journal of the European Union on 26 March 2008 (OJ 2008 C 75, p. 25), the Commission received a request for an expiry review, submitted under Article 11(2) of the basic regulation (now Article 11(2) of Regulation No 1225/2009). The request was lodged by the European Footwear Industry Confederation (EFC), on behalf of producers representing a significant proportion – in this case, more than 35% – of the total Community production of certain footwear with uppers of leather. The EFC submitted that the expiry of the measures would be likely to result in the continuation or recurrence of dumping and injury to the Community industry.
6 On the view that there was sufficient evidence to warrant an expiry review, the Commission announced, by notice published in the Official Journal on 3 October 2008 (OJ 2008 C 75, p. 25), the initiation of an expiry review in accordance with Article 11(2) of the basic regulation. The review investigation period for assessing the likeliness of the continuation or the recurrence of dumping and injury to the European industry fell between 1 July 2007 and 30 June 2008.
7 Given the high number of exporting producers in the countries concerned and the large numbers of EU producers and importers concerned by the investigation, the use of sampling techniques as provided for under Article 17 of the basic regulation (now Article 17 of Regulation No 1225/2009) was contemplated for the purposes of the review procedure. Among the independent importers concerned by the sampling were four FESI members, namely, Adidas AG, Nike European Operations BV, Puma AG and Timberland Europe AG.
8 In view of the findings of the investigation, the Council adopted Implementing Regulation (EU) No 1294/2009 of 22 December 2009 imposing a definitive anti‑dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following a review pursuant to the expiry of the measures implemented in accordance with Article 11(2) of Council Regulation No 384/96 (OJ 2009 L 352, p. 1; ‘the contested regulation’).
Procedure and forms of order sought
9 By application lodged at the Court Registry on 19 March 2010, FESI – stating that it was acting in the name of its members and, in particular, the four members who underwent sampling in the course of the review investigation, namely, Adidas, Nike European Operations, Puma and Timberland Europe – brought the present action.
10 By separate document lodged at the Court Registry on 17 May 2010, the Council raised a preliminary plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court. FESI submitted its observations on that preliminary plea on 5 August 2010.
11 By document lodged at the Court Registry on 21 May 2010, the European Commission sought leave to intervene in the present proceedings in support of the Council. By order of 6 July 2010, the President of the Eighth Chamber of the General Court granted the Commission leave to intervene. The Commission lodged its statement in intervention, in which it addressed solely the question of admissibility, and the other parties lodged their observations on that statement within the prescribed periods.
12 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Sixth Chamber, to which the present case was accordingly allocated. Subsequently, the case was reassigned to a new Judge‑Rapporteur sitting in the same chamber.
13 FESI claims that the General Court should:
– declare the application admissible or, in the alternative, reserve the decision on admissibility until it has ruled on the substance;
– annul the contested regulation in its entirety or, in the alternative, to the extent to which it concerns FESI and its members;
– order the Council to disclose, for each sampled Union producer, the production data on the basis of which samples were selected in the review investigation, as well as the employment data for each sampled Union producer;
– order the Council to pay the costs.
14 The Council contends that the Court should:
– dismiss the action as inadmissible;
– order FESI to pay the costs.
15 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– in the event of doubt as to the admissibility of the action, hold a hearing confined to that issue.
Law
16 Under Article 114(1) and (4) of the Rules of Procedure, if a party submits a separate document seeking a ruling from the Court on a preliminary plea of inadmissibility, the Court may decide on the application or reserve its decision for the final judgment. In the present case, the Court has decided to rule on the preliminary plea of inadmissibility raised by the Council, without addressing the substance of the case.
17 Under the fourth paragraph of Article 263 TFEU, ‘(a)ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
18 In the present case, the Council, supported by the Commission, raises two preliminary pleas of inadmissibility, alleging respectively that the contested regulation entailed implementing measures and that it is not of individual concern to FESI.
19 In relation to the admissibility of FESI’s action, it must be stated at the outset that an action brought by an association acting in place of one or more of its members who could themselves have brought an admissible action will itself be admissible (see, to that effect, Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 39).
20 Accordingly, in order to determine whether the present action is admissible, it is necessary to establish whether, by reference to at least one of the two situations contemplated by the fourth paragraph of Article 263 TFEU – other than the situation of being the person to whom the act is addressed – one or more FESI members would have standing to bring an action challenging the contested regulation.
The first preliminary plea of inadmissibility: the contested regulation entails implementing measures
21 The Council, supported by the Commission, contends in essence that, pursuant to the fourth paragraph of Article 263 TFEU, the action is not admissible as the contested regulation entails implementing measures.
22 FESI submits, inter alia, that the contested regulation does not entail any implementing measures. The contested regulation does not require Member States to adopt implementing measures because, under that regulation, the anti-dumping duties are automatically due and payable. In the circumstances, therefore, unless the present action is ruled admissible, FESI will be denied an effective remedy enabling it to dispute the lawfulness of the contested regulation.
23 First of all, it should be noted that the term ‘regulatory act’, as used in the fourth paragraph of Article 263 TFEU, must be understood as covering all acts of general application apart from legislative acts (Order of 4 June 2012 in Case T‑381/11 Eurofer v Commission [2012] ECR, paragraph 42).
24 In the present case, the contested regulation, adopted by the Council on the basis of Article 11(2) of the basic regulation, is a regulatory act for the purposes of the fourth paragraph of Article 263 TFEU. The contested regulation is of general application in that it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract.
25 Furthermore, the contested regulation is not a legislative act, since it was adopted neither in accordance with the ordinary legislative procedure nor in accordance with a special legislative procedure for the purposes of Article 289(1) to (3) TFEU (see Case T‑262/10 Microban International and Microban (Europe) v Commission [2011] ECR II‑7697, paragraph 21; orders in Eurofer v Commission, paragraph 23 above, paragraphs 43 and 44; and order of 5 February 2013 in Case T‑551/11 BSI v Council, not published in the ECR, paragraph 43).
26 As regards the criterion of direct concern, it is settled law that importers are directly concerned by anti-dumping regulations (see, to that effect, Case 113/77 NTN Toyo Bearing and Others v Council [1979] ECR 1185, paragraph 11). Direct concern is characterised by the lack of discretion enjoyed by the national customs authorities (see, to that effect, Case T‑170/94 Shanghai Bicycle v Council [1997] ECR II‑1383, paragraph 41). In the present case, it should be noted that the contested regulation directly concerns FESI’s members.
27 Against that background, it is appropriate to determine whether, for the purposes of the fourth paragraph of Article 263 TFEU, the contested regulation entails implementing measures.
28 FESI submits that the contested regulation is directly applicable in the Member States and that, as a consequence, it directly affects FESI’s legal position in that it alters it without the need for national implementing measures or measures adopted by the EU institutions.
29 It should be noted, however, that that line of argument is relevant only as regards the circumstances in which an applicant can be said to be directly concerned, and must therefore be disregarded. According to settled case-law, for an individual to be directly concerned by a EU measure, that measure must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone, without the application of other intermediate rules (see Case T‑80/97 Starway v Council [2000] ECR II‑3099, paragraph 61, and the order in BSI v Council, paragraph 25 above, paragraph 55 and the case-law cited).
30 However, the provision made under the fourth paragraph of Article 263 TFEU to the effect that the act must not entail implementing measures, constitutes a condition that is different from the condition regarding direct concern. In particular, it should be noted that the question whether the contested regulation leaves any discretion to the national authorities entrusted with the task of implementing it is not relevant for the purposes of determining whether the contested regulation entails implementing measures (see orders in Eurofer v Commission, paragraph 23 above, paragraph 59, and in BSI v Council, paragraph 25 above, paragraph 56).
31 On the other hand, it is appropriate to take into account, for the purposes of that analysis, the objective pursued by the fourth paragraph of Article 263 TFEU, which is to enable natural or legal persons to bring an action contesting regulatory acts which are of direct concern to them and which do not entail implementing measures, thereby avoiding a situation in which such persons would have to break the law in order to have access to justice (see orders in Eurofer v Commission, paragraph 23 above, paragraph 60, and BSI v Council, paragraph 25 above, paragraph 57).
32 In that regard, FESI’s circumstances are not those at which the objective of the second situation contemplated in the fourth paragraph of Article 263 TFEU is directed. It is common ground in the present case that, pursuant to Article 14(1) of the basic regulation (now Article 14(1) of Regulation No 1225/2009), the anti‑dumping duty imposed by Article 1 of the contested regulation is to be levied by the customs authorities of the Member States, with effect from the entry into force of that regulation, on imports of the goods concerned. This means that, as the Council and the Commission rightly contend, whenever goods subject to anti‑dumping duty are released for free circulation, a tax measure is addressed to the importer at the same time.
33 Under Article 217(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) ( ‘the Customs Code’), each and every amount of import duty or export duty resulting from a customs debt is to be calculated by the customs authorities as soon as they have the necessary particulars. Under Article 221(1) of that code, the amount of duty is to be communicated to the debtor as soon as it has been entered in the accounts, that is to say, established by the national authorities. Thus, that communication is the physical manifestation, vis-à-vis the debtor, of the measure taken in relation to the debtor by the national authorities in implementation of the contested anti-dumping regulation.
34 A measure of that kind, implementing an anti-dumping regulation like the regulation contested in the present case, exists even in the circumstances relied on by FESI, that is to say, where the amount of duty set out in the customs declaration corresponds to the amount determined by the customs authorities. Under the second subparagraph of Article 221(2) of the Customs Code, ‘release of the goods by the customs authorities shall be equivalent to communication to the debtor of the amount of duty entered in the accounts’.
35 It should be noted in that regard that, on the basis of Article 236 of the Customs Code, any dispute contesting a customs debt falls within the exclusive competence of the national authorities, whose decisions are open to challenge before the national courts under Article 243 of that code (see order in BSI v Council, paragraph 25 above, paragraph 51 and the case-law cited).
36 Express provision has been made under secondary legislation for a remedy to be available to persons who believe that they have been wrongly charged with import duty by the customs authorities. That remedy is to be sought at national level, through the appeals procedure established by the Member State in question in accordance with the principles set out in Articles 243 to 246 of the Customs Code (see order in BSI v Council, paragraph 25 above, paragraph 52 and the case-law cited).
37 Consequently, the contested regulation does entail implementing measures for the purposes of the fourth paragraph of Article 263 TFEU.
38 In conclusion, it can be seen from the above analysis of the EU customs system that FESI’s members are not deprived of an effective legal remedy and, accordingly, are not compelled to act in breach of the law in order to dispute the measures at issue.
39 Contrary to the assertions made by FESI in its arguments relating to the right to effective legal protection, that finding is not called into question by the objective pursued by the fourth paragraph of Article 263 TFEU. In the circumstances, it is in principle possible, without being compelled first to act in breach of the contested regulation, to dispute the national measures implementing that regulation, specifically through the appeals procedure established by the Member State in question in accordance with the principles laid down in Articles 243 to 246 of the Customs Code (see, to that effect, order in BSI v Council, paragraph 25 above, paragraphs 51 and 52 and the case-law cited) and, in that context, to enter a plea of illegality in respect of that regulation before the national courts, which may, before giving judgment, have recourse to the procedure under Article 267 TFEU (see, to that effect, order in BSI v Council, paragraph 25 above, paragraph 63 and the case-law cited).
40 It follows from all the foregoing considerations that, to the extent that the present action is based on the second situation contemplated in the fourth paragraph of Article 263 TFEU, it must be dismissed as inadmissible.
The second preliminary plea of inadmissibility: FESI is not individually concerned
41 In order to determine whether the second preliminary plea of inadmissibility is well founded, it should be noted that, although it is true that, in the light of the criteria set out in the fourth paragraph of Article 263 TFEU, regulations imposing anti-dumping duties are, as regards their nature and their scope, of a legislative character, inasmuch as they apply to all the traders concerned, taken as a whole, some of the provisions of such regulations may none the less be of individual concern to certain traders (Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 11, and Case T‑597/97 Euromin v Council [2000] ECR II‑2419, paragraph 43; see also, to that effect, Case T‑598/97 BSC Footwear Supplies and Others v Council [2002] ECR II‑1155, paragraph 43).
42 It follows that, without losing their character as regulations, measures imposing anti-dumping duties may in certain circumstances be of individual concern to certain traders, who accordingly have standing to bring an action for their annulment (Case C‑358/89 Extramet Industrie v Council [1991] ECR I‑2501, paragraph 14).
43 In order to determine whether the present action is admissible, it is appropriate to examine whether the contested regulation is of individual concern to FESI or its members.
44 The Courts of the European Union have held that, generally speaking, in the case of producers and exporters who are alleged to be involved in dumping, particular provisions of regulations imposing anti-dumping duties may be considered to be of direct and individual concern to them on the basis of data concerning their commercial activities. That is the position where producers or exporters are able to demonstrate that they were identified in the measures adopted by the Commission or the Council, or were concerned by the preliminary investigations (see, to that effect, order in Case 279/86 Sermes v Commission [1987] ECR 3109, paragraph 15). It is equally necessary that such a factor should have in some way prompted the intervention of the EU institutions or have formed part of the raison d’être of the regulation itself. As a general rule, certain provisions of regulations imposing anti-dumping duties are also of direct and individual concern to independent importers whose resale prices were taken into account for the construction of export prices. Lastly, the Court of Justice has also recognised the admissibility of an action contesting such a regulation where it was brought by an independent importer in exceptional circumstances and, in particular, where that regulation seriously affected the importer’s business activities (see Euromin v Council, paragraph 41 above, paragraph 45 and the case-law cited).
45 FESI submits that in the light of the case-law of the Courts of the European Union, it is individually concerned, as are its members.
46 In the present case, FESI’s members are independent importers. It follows that, in order to determine whether they have a right to a direct remedy in the light of the case-law, it is appropriate to ascertain whether the existence of the dumping was established on the basis of the resale prices applied by FESI’s members or whether those members are original equipment manufacturers (OEMs) whose particular commercial relationships with producers were taken into account by the EU institutions in determining the profit margin rate for the purposes of constructing the normal value, which was subsequently taken into account in the calculation of the dumping margin on the basis of which the anti-dumping duty had been set (see, to that effect, Joined Cases C‑133/87 and C‑150/87 Nashua Corporation and Others v Commission and Council [1990] ECR I‑719, paragraphs 17 to 20, and Case C‑156/87 Gestetner Holdings v Council and Commission [1990] ECR I‑781, paragraphs 20 to 23).
47 In that regard, it does not appear from either the contested regulation or the initial regulation that the existence of dumping was established on the basis of the resale prices applied by FESI’s members or that their profit margin was used in determining the normal value. Indeed, no definitive anti-dumping margin was established in the contested regulation, as noted by the Commission and acknowledged by FESI.
48 FESI submits, however, that the information and data supplied by its members – including their design and research and development costs – were used to calculate the dumping margin and the injury margin and that that information was fundamental to the finding that the dumping and injury might continue. In that connection, FESI states that the costs incurred by its members in relation to research and development, design and other matters were taken into account in the adjustment of import prices, on the basis of which the calculation of the undercutting was made, together with the finding that further injury was likely. FESI also states that adjustments to the normal value were made on the basis of research and development costs – those incurred by FESI’s members, not those incurred by Chinese and Vietnamese exporters – and differences in the costs incurred for sales to the manufacturers of branded footwear, including FESI’s four members. The dumping margin calculated by using that normal value was therefore the fundamental basis for the finding that the dumping might continue.
49 It is apparent from the contested regulation that the EU institutions assessed a range of complex economic issues in order to predict the consequences of the expiry of the anti-dumping measures. Accordingly, the adjustment of the import price for the calculation of the undercutting margin, made in order to take into account importers’ design and research and development costs, is only one element among others making it possible to reach a conclusion as to injury and in no way makes it possible to distinguish the suppliers of that information and data in the same way as the traders in the cases which gave rise to the case-law referred to in paragraph 46 above.
50 It has not been established, in the present case, that the EU institutions based their finding that the injury would continue if the measures were repealed on the particular features of the commercial relationships between FESI’s members and their producers in the countries concerned (see, to that effect, Nashua Corporation and Others, paragraph 46 above, paragraphs 17 to 20, and Gestetner Holdings, paragraph 46 above, paragraphs 20 to 23).
51 It has not been established that the EU institutions based the calculation of the dumping margin on the information and data supplied by FESI’s members. It can be seen from recital 122 of the contested regulation and recitals 133 and 135 of the initial regulation that account was taken of the Brazilian producers’ design and research and development costs for the purposes of making an adjustment on the basis of the difference between those costs and the research and development costs borne by Vietnamese and Chinese producers. Admittedly, it is apparent from recital 135 of the initial regulation that the adjustment takes account of any differences between sales to OEMs and own brand sales, but that does not mean that the data and information supplied by FESI’s members were used to make an adjustment to the normal value, thereby distinguishing them from other traders.
52 As regards the argument that the EU institutions relied on the data and information supplied by FESI and its members in order to establish the Union interest, it should be pointed out that – as the Commission rightly observes – to accept that argument would be to render meaningless the requirement that the trader must be individually concerned. It can be seen from the contested regulation that the Union interest was determined on the basis of an assessment of all the various interests involved, that is to say, the interests of the Union industry, of other EU producers, importers, retailers/distributors, and consumers.
53 Admittedly, it is apparent from the contested regulation that the information and data supplied by FESI and its members and by the other importers who were part of the sample were used to calculate the resale price in the European Union as well as importers’ profit margins in order to determine the Union interest. None the less, it is important to note that those calculations were only one of the elements which made it possible to determine that interest. Also, FESI’s members were part of a sample which was representative of all Union importers. As can be seen from recitals 427 and 435 of the contested regulation, the EU institutions checked whether there was any evidence to suggest that the resale price and profit margins of the other importers had followed a direction different from that of the sampled importers, but ultimately found that there was nothing to suggest this.
54 In the light of the foregoing, it must be found that FESI is not individually concerned by dint of the fact that its members provided information and data during the review period. The argument relating to the case-law cited in paragraph 46 above must therefore be rejected.
55 As regards FESI’s active participation in the procedure, it should be noted that participation in an investigation conducted by the Commission before an anti‑dumping duty is imposed is not sufficient to confer on an independent importer the right to contest a measure such as the contested regulation, since the distinction between a regulation and a decision is based ‘on the nature of the measure itself and the legal effects which it produces and not on the procedures for its adoption’ (Case 307/81 Alusuisse Italia v Council and Commission [1982] ECR 3463, paragraph 13).
56 Nor is it sufficient to be mentioned in the contested regulation in order to be individually concerned. FESI’s argument in support of its claim to be individually concerned is that it is mentioned in the contested regulation and that numerous recitals of that regulation refer to FESI and to its members.
57 However, the fact that a person has been referred to in an anti-dumping regulation is not sufficient for that person to be regarded as individually concerned by the regulation, since the reference in question merely attests to the person’s participation in the procedure (see, to that effect, judgment of 19 April 2012 in Case T‑162/09 Würth and Fasteners (Shenyang) v Council, not published in the ECR, paragraph 35).
58 Admittedly, it can be seen from recitals 34 to 38, among others, and from paragraph 5.4 (under the title ‘A. Procedure’) of the contested regulation that FESI’s members, like other independent importers, were sampled and that they cooperated with the EU institutions. With regard to that participation, however, it should be borne in mind that, according to settled case-law, although participation by an undertaking in an anti-dumping proceeding may be taken into account, along with other factors, in order to establish whether that undertaking is individually concerned by the regulation introducing anti-dumping duties adopted at the conclusion of that proceeding, if there are no other factors giving rise to a particular situation which distinguishes that undertaking from all other traders, with respect to the measure in question, such participation does not, of itself, give rise to a right enabling the undertaking to bring a direct action contesting that regulation (BSC Footwear Supplies, paragraph 41 above, paragraph 61, and order of 27 January 2006 in Case T‑278/03 Van Mannekus v Council, not published in the ECR, paragraph 127).
59 It follows that the argument relating to the participation of FESI and its members in the review investigation must be rejected.
60 Next, it is appropriate to consider whether FESI and its members may be regarded as individually concerned by the contested regulation owing to certain attributes peculiar to them which differentiate them from all other persons (see, to that effect, Extramet Industrie v Council, paragraph 42 above, paragraph 16).
61 In that regard, it should be noted that the action in the case that gave rise to the judgment in Extramet Industrie v Council, paragraph 42 above, was held admissible because of the particular situation in which the applicant found itself, specifically as a result of the fact that it was the biggest importer and the final user of the product covered by the anti-dumping measures and the fact that there was a limited number of producers of the relevant product and only one producer in the Community, from whom the applicant was having difficulty in obtaining supplies (see, to that effect, Extramet Industrie v Council, paragraph 42 above, paragraph 17).
62 However, the situation of FESI and of its members is in no way similar to that of the applicant in the case that gave rise to the judgment in Extramet Industrie v Council, paragraph 42 above. The 18% market share collectively held by FESI’s members and by another of the sampled undertakings is not sufficient to establish that, collectively or individually, they are regarded as the biggest importers of the European Union (see, to that effect, Extramet Industrie v Council, paragraph 42 above, paragraph 17).
63 FESI also submits that the contested regulation has a serious impact on its members’ economic activities, in the sense that the profits of the sampled importers fell by 16% in the course of the review period. According to FESI, that decrease is attributable to the fact that, because of the extension of the anti-dumping measures, FESI’s members had to take measures to reduce costs.
64 In order to substantiate that argument, FESI states, inter alia, that its members paid a total of EUR 67.5 million in anti-dumping duties during the period from April 2006 to November 2010. FESI also refers to the analysis made by the European Union institutions in the contested regulation, according to which, in essence, costs have risen for the sampled importers and may rise further, because the economic parameters have changed a lot. Lastly, FESI submits that, in any event, profitability is not the only measure of injurious effects, which may instead take the form of a loss of opportunity to make a profit or less favourable development.
65 It should be noted in that regard that, despite the information set out above, FESI’s members have not provided any evidence to show that their imports were significantly affected by the contested regulation. Even so, a substantial impact on the imports of FESI’s members is not sufficient in itself to establish that they were individually concerned. It should be borne in mind that, in the case that gave rise to the judgment in Extramet Industrie v Council, paragraph 42 above, paragraph 17, the applicant was found to be individually concerned because of a number of factors other than a substantial impact on imports. In addition, the amounts paid by FESI’s members do not support the conclusion that the economic consequences suffered by those members were more significant than the consequences with which other traders were confronted.
66 FESI submits that sourcing from countries other than China or Vietnam, in particular from EU producers or from third countries, is impossible on account of the heavy investments made by FESI’s members in order to develop production and to foster relationships with producers in China and Vietnam. As a result, according to FESI, its members – who must continue to obtain supplies in China and Vietnam – are individually concerned by the contested regulation.
67 It should be noted that, as is pointed out in recital 452 of the contested regulation, the imposition of the relevant anti-dumping measures was a step taken in order to correct market distortions. Accordingly, it is not prohibitive, in the sense that it neither brings imports from the countries concerned to a halt nor requires importers to obtain supplies from other countries.
68 Contrary to the assertions made by FESI, it is not impossible for its members to change supply sources. As can be seen from recital 451 of the contested regulation, the sampled importers – in particular, the global branded footwear undertakings – argued that ‘changing sources by relocating production would incur high costs and long lag times (12 to 18 months)’. In addition, recital 452 of the contested regulation relates how a large importer outside the sample has referred to an increase in imports from other Asian countries, at the expense of imports from the countries concerned. It follows – as the EU institutions correctly noted – that, even though it may entail extra costs and additional delays, transferring production from one country to another may be regarded as not too cumbersome.
69 What is more, those difficulties – as well as any consequent rise in prices – affect all importers who do not change their supply source or who have to turn towards other supplier countries.
70 FESI has adduced no further evidence of the difficulties confronting FESI and its members in seeking other supply sources.
71 In addition, the obtaining of supplies on the Union market is a matter that the EU institutions had already addressed in recitals 417 and 431 of the contested regulation, noting that most of the sampled importers had managed to change leather footwear suppliers within 12 to 24 months. Similarly, it is pointed out in recital 431 of the contested regulation that most of the sampled importers had adapted their supply chains and their pricing structure to the change in circumstances.
72 More generally, and as is apparent from recital 452 of the contested regulation, it is conceivable that the contested regulation may have had a negative impact on the importers who had to readjust and that that negative impact depends on the specific position that those importers occupy on the market and their relationships with Chinese and Vietnamese producers and exporters. However, even if FESI’s assertions were correct, they would apply to a large number of importers. The Commission correctly observes that the argument put forward was also raised, during the expiry review investigation, by the European Footwear Alliance (EFA), an association which groups together FESI and other associations representing many small and medium undertakings and larger European footwear brand undertakings. It follows that the information from the EFA should be regarded as having been submitted in the name of each of the members of that association and, accordingly, as representing a large number of importers. Consequently, the situation of FESI and of its members is no different from that of other traders.
73 It must therefore be found that FESI has not adduced the evidence needed to establish the existence of a set of factors making up a specific situation capable of differentiating its members, with respect to the contested regulation, from all other traders (see, to that effect, Extramet Industrie v Council, paragraph 42 above, paragraph 16).
74 It follows from the foregoing that the contested regulation is of concern to FESI and its members, not because it 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, but because it affects them as a result of their objective status as importers of the relevant products, in the same way as any other traders in a similar situation in the European Union.
75 Consequently, the contested regulation is not of individual concern, for the purposes of the fourth paragraph of Article 263 TFEU, to FESI’s members.
76 The present action must therefore be declared inadmissible.
Costs
77 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since FESI has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Council in accordance with the latter’s pleadings.
78 In accordance with Article 87(4) of the Rules of Procedure, the Commission must bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action as inadmissible;
2. Orders the Fédération européenne de l’industrie du sport (FESI) to bear its own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Luxembourg, 7 March 2014.