JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

30 April 2015 (*)

(Dumping — Imports of certain seamless pipes and tubes, of iron or steel, originating in Russia and Ukraine — Definitive anti-dumping duty — Expiry review — Likelihood of recurrence of injury — European Union interest — Manifest error of assessment — Obligation to state reasons)

In Case T‑432/12,

Volžskij trubnyi zavod OAO (VTZ OAO), established in Volzhsky (Russia),

Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), established in Taganrog (Russia),

Sinarskij trubnyj zavod OAO (SinTZ OAO), established in Kamensk-Uralsky (Russia),

Severskij trubnyj zavod OAO (STZ OAO), established in Polevskoy (Russia),

represented by J.-F. Bellis, F. Di Gianni, G. Coppo and C. Van Hemelrijck, lawyers,

applicants,

v

Council of the European Union, represented by S. Boelaert, acting as Agent, assisted initially by G. Berrisch and A. Polcyn, lawyers, and subsequently by A. Polcyn and D. Geradin, lawyers,

defendant,

supported by

European Commission, represented by M. França and A. Stobiecka-Kuik, acting as Agents,

intervener,

APPLICATION for annulment of Council Implementing Regulation (EU) No 585/2012 of 26 June 2012 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel, originating in Russia and Ukraine, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain seamless pipes and tubes, of iron or steel, originating in Croatia (OJ 2012 L 174, p. 5), in so far as it applies to them,

THE GENERAL COURT (Fifth Chamber),

composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 16 October 2014,

gives the following

Judgment

 Background to the dispute and the contested decision

1        The applicants, Volžskij trubnyi zavod OAO (VTZ OAO), Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), Sinarskij trubnyj zavod OAO (SinTZ OAO) and Severskij trubnyj zavod OAO (STZ OAO), are Russian companies which manufacture and export seamless pipes and tubes and form part of the TMK group (‘the TMK Group’ or ‘TMK’).

2        By Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4), an anti-dumping duty of 35.8% was imposed on all of the applicants in relation to their exports to the European Union.

3        Following a partial interim review of Regulation No 954/2006 in relation to TMK, the definitive anti-dumping duty applicable to it was set at 27.2% by Council Regulation (EC) No 812/2008 of 11 August 2008 amending Regulation No 954/2006 (OJ 2008 L 220, p. 1).

4        After receiving a reasoned opinion from a complainant on 29 March 2011, the European Commission, on 28 June 2011, initiated an expiry review and published a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain seamless pipes and tubes of iron or steel originating in Croatia, Russia and Ukraine (OJ 2011 C 187, p. 16).

5        Like the other Russian exporting producers, the applicants did not respond to the questionnaire referred to in Article 6(2) 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 Council of the European Union therefore considered that the applicants had not cooperated in the investigation.

6        By e-mail of 4 April 2012, the Commission sent the applicants a definitive disclosure document in which it proposed, inter alia, to maintain the definitive anti-dumping duties on imports of seamless pipes and tubes originating in Russia and Ukraine, in accordance with Article 11(2) of Regulation No 1225/2009. On 24 April 2012, the applicants presented their observations on the definitive disclosure document.

7        At the request of the applicants, submitted on 12 April 2012, and on the date proposed by them, a hearing took place on 2 May 2012 before the Hearing Officer.

8        On 26 April 2012, the Commission obtained the opinion of the Anti-Dumping Advisory Committee, pursuant to Article 15 of Regulation No 1225/2009, on its proposal for definitive anti-dumping duties. On 4 June 2012, the Commission adopted its proposal for a definitive regulation, which it forwarded to the Council on the same day.

9        By Council Implementing Regulation (EU) No 585/2012 of 26 June 2012 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel, originating in Russia and Ukraine, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain seamless pipes and tubes, of iron or steel, originating in Croatia (OJ 2012 L 174, p. 5) (‘the contested regulation’), a definitive anti-dumping duty of 27.2% was imposed on the applicants in relation to their exports of seamless pipes and tubes, of iron or steel, to the European Union. The contested regulation entered into force on 5 July 2012.

 Procedure and forms of order sought

10      By application lodged at the Registry of the General Court on 26 September 2012, the applicants brought the present action.

11      By separate document lodged at the Court Registry on 21 December 2012, the Commission applied for leave to intervene in support of the Council.

12      By order of the President of the Second Chamber of the General Court of 27 February 2013, the Commission was granted leave to intervene.

13      By document lodged at the Court Registry on 12 April 2013, the Commission announced that it would not be lodging a statement in intervention and that it would be attending the hearing.

14      Following an alteration of the composition of the Court, the Judge-Rapporteur was attached to the Fifth Chamber, to which this case has therefore been assigned.

15      The applicants claim that the Court should:

–        annul the contested regulation in so far as it applies to them;

–        order the Council to pay the costs.

16      The Council contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

17      In support of their application for annulment, the applicants have put forward four pleas in law. By the first plea in law, they submit that the Council made a manifest error of assessment of the facts, breached Article 3(4) of Regulation No 1225/2009 and infringed the principle of equal treatment by cumulating imports from Russia and Ukraine. By the second plea in law, they submit that the Council breached the principle of equal treatment, made a manifest error of assessment of the facts and breached Article 11(2) of the regulation by concluding that the expiry of the measures would, ‘in all likelihood’, lead to a recurrence of injury. By the third plea in law, they submit that the Council breached Articles 9(4) and 21 of that regulation and the principle of equal treatment by making a manifest error of assessment when analysing the EU interest. By the fourth plea in law, they submit that the Council infringed the principle of sound administration, the duty to state reasons and their rights of defence.

18      As a preliminary matter, it is appropriate to examine some of the Council’s arguments, submitted mainly in response to the second plea in law, which concerns the implications of an expiry review in respect of the expiry of anti-dumping measures and the non-cooperation of the exporters of a country affected by such a review, and the applicants’ arguments in that regard.

 Preliminary considerations on the expiry review in respect of the expiry of anti-dumping measures and on cooperation

19      In its defence, first, the Council argues that, in the context of an expiry review in respect of anti-dumping measures provided for in Article 11(2) of Regulation No 1225/2009, the institutions are required only to demonstrate the likelihood of recurrence of injury, in the light of a prospective analysis of the determining factors to that effect, such as the trends in imports or sales prices. Secondly, the Council insists on the fact that, in the review which led to the contested regulation, neither the applicants nor any other Russian exporting producer cooperated, and the applicants’ cooperation in the interim expiry review of anti-dumping measures imposed by Regulation No 954/2006 — provided for in Article 11(3) of Regulation No 1225/2009, conducted in parallel — did not amount to such cooperation.

 Establishment of the recurrence of injury in an expiry review by virtue of the expiry of anti-dumping measures

20      According to the first subparagraph of Article 11(2) of Regulation No 1225/2009, an anti-dumping measure is to expire five years from its imposition, ‘unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury’.

21      It is clear from that provision that retention of a measure depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned. It is also clear that the mere possibility that injury might continue or recur is insufficient to justify retaining a measure; that is dependent on the likelihood of continuation or recurrence of injury being established (judgment of 20 June 2001 in Euroalliages v Commission, T‑188/99, ECR, EU:T:2001:166, paragraph 42).

22      In that regard, it is of no relevance that the French version of the first subparagraph of Article 11(2) of Regulation No 1225/2009, unlike the other language versions, does not use words meaning ‘likely’ or ‘likelihood’ (judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 43).

23      Regulation No 1225/2009 must be interpreted in the light of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade of 1994 (GATT) (OJ 1994 L 336, p. 103; ‘the Anti-Dumping Agreement’), contained in Annex 1A to the Agreement establishing the World Trade Organisation (‘the WTO’) (OJ 1994 L 336, p. 3) (judgment of 27 January 2000 in BEUC v Commission, T‑256/97, ECR, EU:T:2000:21, paragraphs 66 and 67), Article 11.3 of which provides that any definitive anti-dumping duty is to be terminated not later than five years from its imposition ‘unless the authorities determine, in a review ..., that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury’. In that regard, the use of the verbs ‘établir’ and ‘favoriser’ in the French version of Regulation No 1225/2009 implies that the measures can be retained only if the review has shown that their expiry would create conditions that would encourage the continuation or recurrence of injury. It is not necessary therefore for there to be proof of the continuation or recurrence of injury, merely that there should exist a likelihood of this. A requirement of likelihood therefore appears implicitly in the French text of Regulation No 1225/2009 (judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 44).

24      In the present case it is common ground that the injury was removed while the measures at issue were in force. The Commission had, therefore, to consider the likelihood of injury recurring (see, to that effect, judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 45).

25      Such consideration calls for an appraisal of complex economic questions in which the EU institutions have a wide discretion. Judicial review of that appraisal must, accordingly, be limited to verifying whether the procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there have been manifest errors of appraisal of the facts or a misuse of power (judgments of 30 March 2000 in Miwon v Council, T‑51/96, ECR, EU:T:2000:92, paragraph 94, and Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 46).

26      In the light of the case-law cited in paragraphs 21 to 25 above, the Council is correct in its submission that, at the end of an anti-dumping expiry review, the institutions may determine that the expiry of those measures would encourage the recurrence of injury by demonstrating only the likelihood of such recurrence, in the light, in particular, of a prospective assessment of imports from the country or countries concerned by that procedure, in this case Russia and Ukraine.

 The applicants’ cooperation

27      It is apparent from recital 17 in the preamble to the contested regulation that the applicants, like the other Russian exporters of the goods at issue, did not cooperate in the anti-dumping expiry review investigation.

28      The applicants, however, are of the opinion that their cooperation in the context of the interim review of the anti-dumping measures imposed by Regulation No 954/2006 should have led the institutions to use the information which they had provided in that context as facts available within the meaning of Article 18(1) of Regulation No 1225/2009 or as best available information within the meaning of the WTO case-law. They are also of the opinion that the fact that they did not respond to the questionnaire provided for in Article 6 of Regulation No 1225/2009 does not allow the institutions to disregard their views and representations with respect to the aspects of the investigation other than the finding that dumping had occurred. On this point, the applicants rely, in the application, on the documents concerning the aspects of the investigation relating to injury which they sent to the Commission during the anti-dumping expiry review, as a result of which they take the view that they fully cooperated in the investigation.

29      It follows from the case-law that while, in the context of Regulation No 1225/2009, it is for the Commission, as the investigating authority, to determine whether the product which is the subject of the anti-dumping investigation has been dumped and causes injury when it is put into free circulation in the European Union, and while it is not for that institution, in that context, to discharge part of the burden of proof resting upon it in that regard (see, to that effect, judgments of 17 December 1997 in EFMA v Council, T‑121/95, ECR, EU:T:1997:198, paragraph 74; 12 October 1999 in Acme v Council, T‑48/96, ECR, EU:T:1999:251, paragraph 40; and 13 July 2006 in Shandong Reipu Biochemicals v Council, T‑413/03, ECR, EU:T:2006:211, paragraph 65), the fact remains that Regulation No 1225/2009 does not confer on the Commission any investigative powers enabling it to compel producers or exporters which are the subject of a complaint to participate in the investigation or to produce information. In those circumstances, the Council and the Commission depend on the voluntary cooperation of the parties in supplying the necessary information within the time-limits set. In that context, the replies of those parties to the questionnaire referred to in Article 6(2) of Regulation No 1225/2009, and the subsequent on-the-spot verification which the Commission may carry out under Article 16 of that regulation, are essential to the conduct of the anti-dumping procedure. The risk that, where the undertakings concerned in the investigation do not cooperate, the institutions may take into account information other than that supplied in reply to the questionnaire is inherent in the anti-dumping procedure and is designed to encourage the honest and diligent cooperation of those undertakings (see, to that effect, judgments in Acme v Council, EU:T:1999:251, paragraphs 42 to 44; of 28 October 1999 in EFMA v Council, T‑210/95, ECR, EU:T:1999:273, paragraph 71; and Shandong Reipu Biochemicals v Council, EU:T:2006:211, paragraph 65).

30      On the one hand, the applicants’ argument alleging that the institutions did not use the information which they had provided in the interim review of anti-dumping measures as facts available within the meaning of Article 18(1) of Regulation No 1225/2009 or as best information available within the meaning of the WTO case-law must be set aside as irrelevant, since, while it is true that the applicants cooperated in the investigation conducted within the context of the interim expiry review, they provided, in that context, only information relating to aspects of the dumping without addressing the issue of prejudice.

31      On the other hand, with regard to the fact that the applicants informed the Commission of aspects other than those relating to dumping as part of the anti-dumping expiry review, it should be noted that the Council does not dispute the facts as they are presented in the application. These include, first, a letter from the applicants, dated 22 August 2011, containing explanations on the fact that there was no continuation or recurrence of injury upon expiry of the anti-dumping measures, with enclosures; second, a module presenting the applicants’ arguments during a hearing with representatives of the Commission, which took place on 6 March 2012; and, third, written observations submitted on 23 March 2012.

32      Moreover, the Council submits, implicitly referring to the documents mentioned in paragraph 31 above, that the institutions did not completely rule out the applicants’ views and representations with respect to the aspects other than the finding that dumping had occurred and that they treated the latter as interested parties, took account of their observations on injury, granted them a hearing and sent them the definitive disclosure.

33      None the less, it is apparent from recital 17 in the preamble to the contested regulation that, in view of the lack of response to the questionnaire that it had sent to all Russian exporting producers, the Council took the view that none of those producers had cooperated.

34      It should be noted that paragraphs 1 and 3 of Article 18 of Regulation No 1225/2009 are worded in such a way as to enable the institutions to use the data available when an interested party does not respond to the questionnaire sent to it by the Commission, thereby failing to provide the necessary information within the permitted timeframe (see, to that effect and by analogy, judgment of 25 October 2011 in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, T‑192/08, ECR, EU:T:2011:619, paragraph 267).

35      Paragraphs 1 and 3 of Article 18 of Regulation No 1225/2009 concern the institutions’ use of the facts available to the detriment of the facts which are specific to one or more of the interested parties. While Article 18(1) of Regulation No 1225/2009 defines the cases in which the facts available may be used, Article 18(3) of that regulation sets out the cases in which the facts available do not necessarily have to be used. Under Article 18(1) of Regulation No 1225/2009, there are four cases in which recourse may be had to the facts available: (i) where any interested party refuses access to necessary information; (ii) where it does not provide necessary information within the time-limits provided; (iii) where it significantly impedes the investigation; or (iv) where it supplies false or misleading information. Article 18(3) of Regulation No 1225/2009 provides that, where the information submitted by an interested party is not ideal in all respects, it should nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability (judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, paragraph 34 above, EU:T:2011:619, paragraph 268).

36      It follows that paragraphs 1 and 3 of Article 18 of Regulation No 1225/2009 concern different situations. Thus, whereas Article 18(1) of Regulation No 1225/2009 sets out in general terms cases in which the information needed by the institutions for the purposes of the investigation has not been supplied, Article 18(3) of Regulation No 1225/2009 contemplates the cases in which the information necessary for the purposes of the investigation has been supplied but is not ideal in all respects (judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, paragraph 34 above, EU:T:2011:619, paragraph 269).

37      Since it is common ground that the applicants did not respond to the Commission’s questionnaire and that, accordingly, they did not provide any information on aspects of dumping as part of the expiry review of anti-dumping measures, it must be concluded that the Council correctly found that the applicants had not cooperated with the investigation and that, pursuant to Article 18(1) of Regulation No 1225/2009, it used the available data to reach its conclusions as to the conditions for the imposition of anti-dumping duties.

 The first plea in law, alleging a manifest error in the assessment of the facts, and infringement of Article 3(4) of Regulation No 1225/2009 and of the principle of equal treatment, as a result of the cumulation of imports from Russia and Ukraine

38      The first plea is divided into three parts. In the first part, the applicants submit that the Council was not entitled to cumulate imports from Russia and Ukraine without breaching Article 3(4) of Regulation No 1225/2009, since, during the review investigation period (‘the RIP’), which ran from 1 April 2010 to 31 March 2011, imports from Russia amounted to less than 1% of the EU market. In the second part of the plea, the applicants maintain that the Council infringed the principle of equal treatment, referred to in Article 9(5) of Regulation No 1225/2009, by treating imports from Russia differently from imports from Croatia. In the third part, the applicants submit that the available evidence should have led the Council not to cumulate imports from Russia and from Ukraine.

39      It is appropriate to begin by examining the first part of the plea, followed by the third and, finally, the second part.

 The first part of the plea, alleging breach of Article 3(4) of Regulation No 1225/2009

40      The applicants submit that the Council breached Article 3(4) of Regulation No 1225/2009 by cumulating imports from Russia and from Ukraine, even though imports from Russia were negligible, since they amounted to less than 1% of the EU market during the RIP. Just as in an initial investigation, the assessment of the level of imports being dumped should, they argue, be conducted in the light of the actual volumes of imports achieved during the RIP. 

41      The Council disputes the applicants’ arguments.

42      It should be noted that Article 3(4) of Regulation No 1225/2009 provides that, where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports have to be cumulatively assessed only if it is determined that the margin of dumping established with respect to the imports from each country is more than de minimis as defined in Article 9(3), if the volume of imports from each country is not negligible, and if a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between the imported products and the like EU products.

43      In essence, the applicants are asking the institutions to record the cumulative effects of the dumped imports on the basis of actual imports during the RIP.

44      The Council disputes that proposition.

45      Since it is apparent from recital 3 in the preamble to Regulation No 1225/2009 that the purpose of the regulation is, inter alia, to transpose into EU law, as far as possible, the rules set out in the Anti-Dumping Agreement, it follows that the provisions of that regulation must be interpreted, as far as possible, in the light of the corresponding provisions of the Anti-Dumping Agreement (see, to that effect, judgments of 14 July 1998 in Bettati, C‑341/95, ECR, EU:C:1998:353, paragraph 20, and Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, paragraph 34 above, EU:T:2011:619, paragraphs 34 and 35). Moreover, there is nothing to prevent the Court from referring to the interpretations of the Anti-Dumping Agreement by the WTO’s dispute settlement body, where, as in the present case, Article 3(4) of Regulation No 1225/2009 falls to be interpreted (judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, paragraph 34 above, EU:T:2011:619, paragraph 36).

46      Thus, it is appropriate to recall that, in its report on the case ‘United States — Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina’, adopted on 29 November 2004 (WT/DS268/AB/R, points 302 and 304), the WTO’s appellate body held that the conditions set out in Article 3.3 of the Anti-Dumping Agreement did not automatically apply to likelihood-of-injury determinations in sunset reviews. Article 3(4) of Regulation No 1225/2009 represents the transposition into EU law of Article 3.3 of the Anti-Dumping Agreement.

47      Moreover, it is apparent from paragraphs 21 to 25 above that, following an anti-dumping expiry review, the institutions are required to establish that the expiry of those measures would encourage recurrence of the injury by demonstrating only the probability of such a recurrence, in the light, in particular, of a prospective assessment of imports from the country or countries concerned by that procedure, in this case Russia and Ukraine.

48      Accordingly, it follows from the rules governing the expiry review in respect of the expiry of anti-dumping measures that, in order to determine the volume of imports being dumped, the Council is entitled to use the likely volume of imports from exporting countries instead of the actual volume of imports during the RIP and to cumulate them in order to establish the likelihood of recurrence of injury, given that the conditions set out in Article 3(4) of Regulation No 1225/2009 — specifically that relating to the fact that the volume of imports from each country is not negligible — are not automatically applicable in the case of such a review (see paragraph 46 above), since the risk of recurrence of injury is then determined through the use of a prospective analysis of dumped imports.

49      Consequently, the Council did not err in law in cumulating imports from Russia and those from Ukraine on the basis of likely import volumes.

 The third part of the plea, alleging a manifest error of assessment with respect to the cumulation of imports from Russia and from Ukraine

50      The applicants submit that, on the basis of the evidence available, the Council should not have cumulated imports from Russia and those from Ukraine, in the light of the significant difference in import volumes during the RIP, the divergent developments since 2009 and the unlikelihood of any spare capacity in the Russian industry being used for exports to the European Union.

51      The Council takes issue with that argument, which is based essentially on the idea that imports from several countries may be cumulated only if those imports have similar characteristics or tendencies.

52      It should be noted that, in their reply, the applicants submit that, by having ignored the factors differentiating the imports from those two countries when it decided that imports from Russia were not negligible for the purposes of Article 3(4) of Regulation No 1225/2009, the Council erred in its assessment of the facts.

53      On that point, the applicants link their arguments to the condition that imports from one country must not be negligible in order for imports from several countries to be cumulated. In so doing, they are, however, unable to show that there are differences between imports from Russia and imports from Ukraine such as would be liable to reveal that a manifest error of assessment was committed by the Council when applying Article 3(4)(b) of Regulation No 1225/2009, according to which a cumulative assessment of the effects of imports is possible only if it is appropriate in the light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like EU product.

54      With respect to their other arguments, the applicants rely on three characteristics of imports from Russia and Ukraine, which do not directly affect the criterion relating to the conditions of competition between imported products and the conditions of competition between the imported products and the like EU product. They argue, first, that there is a significant difference in import volumes during the RIP, which amounts to 10 785 tonnes or 0.6% of EU consumption, for imports from Russia and 27 323 tonnes, or 1.6% of EU consumption, for imports from Ukraine; second, that imports from those two countries have developed differently since 2009, with imports from Russia having fallen sharply while imports from Ukraine have witnessed a significant increase; and, third, that there is no evidence supporting the proposition that imports from Russia would increase beyond the levels observed during the RIP given the spare production capacity in Russia.

55      With respect to the third item identified by the applicants, it is clear that, of itself, the Council’s finding that imports from Russia would increase as a result of the spare production capacity in that country is not indicative of any difference in the characteristics of imports from Russia and Ukraine, whether that conclusion is well founded or not. That item is therefore not relevant to the claim that the Council committed a manifest error of assessment with respect to the cumulation of imports from Russia and Ukraine.

56      As regards the first two items relied on by the applicants in support of their contention that it was not possible to cumulate imports from Russia and from Ukraine, these merely reflect differences in volumes of imports on the EU market from those two countries during the RIP and the differences in how those imports have developed since 2009. Of themselves, such data do not show that the conditions of competition between imported products and the conditions of competition between the imported products and the like EU product prohibited the Council from cumulating imports from Russia and from Ukraine.

57      The condition set out in Article 3(4)(b) of Regulation No 1225/2009 relates to the conditions of competition between imported products and between imported products and the like EU product. It requires a determination, on the one hand, as to whether those products have similar physical characteristics and whether their end use is interchangeable and, on the other hand, as to whether the market behaviour of exporters is similar. The institutions cannot therefore be required, in order to apply that provision, to examine the volumes of imports from different countries and the development of those imports. None the less, the issue of import volumes is relevant for the purpose of determining whether it is possible to cumulate imports from several countries, but is addressed through the condition set out in Article 3(4)(a) of Regulation No 1225/2009, which relates to the determination as to whether the nature of imports from each of the countries concerned is negligible or not.

58      Moreover, it should be noted that the WTO’s Appellate Body came to the decision set out paragraph 57 above, since Article 3.3 of the Anti-Dumping Agreement does not in any way provide for a country-by-country analysis of the potential negative effects of volumes, their development and the prices of dumped imports as a prerequisite for a cumulative assessment of the effects of all dumped imports (see report on the case ‘European Communities — Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil’, adopted on 22 July 2003 (WT/DS219/AB/R, paragraphs 110 and 117)).

59      Consequently, the applicants are not in a position, by their arguments, to show that the Council committed a manifest error in its assessment of the facts as a result of having cumulated imports from Russia and from Ukraine despite significant differences between those imports.

 The second part of the plea in law, alleging infringement of the principle of equal treatment, referred to in Article 9(5) of Regulation No 1225/2009

60      The applicants maintain that the Council infringed the principle of equal treatment, referred to in Article 9(5) of Regulation No 1225/2009, by treating imports from Russia differently from those from Croatia, even though they were both negligible, and that the Council recognised, in recital 92 in the preamble to the contested regulation, that the conditions of competition were similar as far as those two countries were concerned and that imports from Croatia could resume given the existence of production capacity.

61      The Council takes issue with that argument.

62      The principles of equality and non-discrimination, set out in Article 21 of the Charter of Fundamental Rights of the European Union, require that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such treatment is objectively justified (see judgment in Acme v Council, paragraph 29 above, EU:T:1999:251, paragraph 116 and the case-law cited).

63      On the one hand, while it is true that the Council considered, in recitals 89 and 90 in the preamble to the contested regulation, that the volume of dumped imports from Croatia was negligible and therefore did not include it in the cumulated imports for the assessment of damage, it should be noted that it also held that the volume of imports from that country was not likely to increase, on the ground that production had completely ceased there after the RIP (recital 89 in the preamble to the contested regulation). Moreover, it should also be remembered that, particularly in the case of imports from Russia, the Council correctly relied on the likely volume thereof in order to determine whether that volume was negligible or not (see paragraphs 46 to 49 above).

64      It follows from the findings in paragraph 63 above that the situation of imports from Russia was different from that of imports from Croatia, the likely volume of the former having been found to be non-negligible, whereas no likely volume of imports for the latter could be contemplated given the cessation of production of the products at issue.

65      On the other hand, as the applicants argue, there is indeed a contradiction between recital 91 and recital 92 in the preamble to the contested regulation, since it is stated, in the first of those recitals, that the products imported from the three countries concerned compete with those manufactured in the European Union, implying that the requirement in Article 3(4)(b) of Regulation No 1225/2009 is met, and, in the second of those recitals, that the conditions of competition between imported products were not met with regard to Croatia. However, that contradiction has no impact on the question whether imports from Croatia and from Russia were placed in the same situation because of the negligible nature of their respective volumes, which is, moreover, not the case, as was noted in paragraph 64 above.

66      Finally, the contradiction noted by the applicants between recitals 91 and 92 in the preamble to the contested regulation cannot be regarded as not permitting a proper understanding of the statement of reasons. Given that the requirement relating to competition between the products, provided for under Article 3(4)(b) of the contested regulation, is only one of the three cumulative conditions for the Council to cumulate imports from different countries, the fact that the products imported from Croatia do not compete with products imported from Russia and Ukraine and with the like EU products merely reinforces the finding that imports from Croatia must not be cumulated with those of the other two countries. Thus, the alleged contradiction in the statement of reasons is not likely to make it difficult to understand the reasoning on which the contested regulation is based.

67      It follows from the foregoing that the applicants have not demonstrated a disregard for the principle of equal treatment or a breach of Article 9(5) of Regulation No 1225/2009.

68      The first plea in law of the application must therefore be set aside.

 The second plea in law, alleging infringement of the principle of equal treatment, manifest error of assessment of the facts and breach of Article 11(2) of Regulation No 1225/2009 as regards the likelihood of recurrence of injury

69      The second plea in law comprises two parts. First, the applicants submit that the Council made a manifest error of assessment when analysing the conditions which must be satisfied in order to make a finding that a recurrence of injury is likely. Second, the applicants submit that the Council disregarded the principle of equal treatment in the assessment of the likelihood of a recurrence of injury and of the likelihood of a continuation of dumping, in the light of the situation of imports from Croatia.

 The first part of the plea in law, alleging a manifest error of assessment in the analysis of the conditions which must be satisfied in order to make a finding that a recurrence of injury is likely

70      The applicants set out two complaints. First, they submit that, in the contested regulation, the Council should have interpreted strictly the conditions for the continued imposition of anti-dumping measures, having regard to the exceptional nature of their continued imposition. Second, they argue that the Council made a manifest error of assessment by not establishing the likelihood of recurrence of injury in view of the investigation carried out by the institutions.

–       The first complaint, alleging an error of law as to the level of proof required to establish the likelihood of recurrence of injury

71      According to the applicants, the institutions should have strictly interpreted the conditions attached to the continued imposition of anti-dumping measures by reason of the likelihood of recurrence of injury. In that situation, the burden of proof resting on the institutions is heavier than when those institutions are deciding upon the likelihood of continuation of injury, which is confirmed by the case-law of the WTO’s appellate body.

72      Specifically, the applicants submit that a strict interpretation of the conditions for the continued imposition of the anti-dumping measures by reason of the likelihood of recurrence of injury was required, on the ground that the measures had been in force for 13 years for the vast majority of products concerned, that imports from Russia accounted for a very small volume and had only a small share of the EU market and that the EU industry was ‘extraordinarily healthy’.

73      It should be recalled that, following a review relating to the expiry of anti-dumping measures, the institutions are to establish that the expiry of such measures would encourage the recurrence of injury, by demonstrating only the likelihood of such recurrence, in the light, in particular, of a prospective assessment of imports from the country or countries concerned by that review (judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraphs 41 to 44).

74      It is apparent neither from the wording of Article 11(2) of Regulation No 1225/2009 nor from the case-law cited in paragraph 73 above that the evidence upon which the likelihood of recurrence of injury is assessed should be interpreted strictly. In order for the recurrence of injury to be validly accepted by the Council, that institution need only prove that there is a likelihood thereof, that standard of proof being, contrary to what the applicants submit, also required with respect to the finding of continuation of injury (see, to that effect, judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 42).

75      Consequently, it is only during the examination of the actual factual situation submitted to the institutions that it may be possible to determine whether the Council established a likelihood of recurrence of injury without making a manifest error of assessment of the facts. The argument expounded in the first complaint of the first part is not liable to reveal such a manifest error of assessment and must therefore be rejected.

–       The second complaint, alleging a manifest error of assessment as to the likelihood of recurrence of injury

76      According to the applicants, the Council has not established on an adequate factual basis, covering both the past and the present, the likelihood of recurrence of injury, but has, principally, merely speculated that there is Russian spare production capacity, without taking into account other factors such as the correlation between a reduction in anti-dumping duties and an increase in imports.

77      The applicants’ criticism can be divided into a number of different arguments. First, and foremost, they submit that the Council incorrectly based its finding of a likelihood of recurrence of injury on the spare capacity in Russia and the likely increase thereof, whereas the applicants had submitted arguments on the attractiveness of markets other than the EU market. Second, they argue that the Council took the view that the price of imports from Russia would be lower than the price in the European Union without taking account of other factors. Third, they submit that the Council failed correctly to assess the information available to it with respect to trends affecting imports from Russia, especially those from TMK. Fourth, they argue that the Council made a manifest error of assessment as to the health of the EU industry and as to the impact that the expiry of the anti-dumping measures would have on that industry.

78      The Council challenges that line of argument.

79      As a preliminary point, it should be recalled that the Council assessed the likelihood of recurrence of injury in recitals 123 to 127 in the preamble to the contested regulation. In recital 123, the Council found that it was possible for the Russian and Ukrainian exporting producers to increase the volume of their exports to the European Union by using their available spare capacity of approximately 1 750 000 tonnes, and that they could benefit from the expiry of the anti-dumping measures in order to regain the market share that they had lost as a result of those measures. In recital 124, the Council recalled the level of prices of imports from Russia and Ukraine, which were low and lower than those of the European Union, in order to make a finding of a probable downward pressure on prices prevailing on the EU market, with negative consequences for the economic situation of the EU industry, concluding, on that basis, that there was a likelihood of recurrence of injury upon expiry of the anti-dumping measures. In recital 125, the Council held that the EU industry had been unable to benefit fully from the anti-dumping measures, since the market shares held by imports from Russia and Ukraine had been taken up by imports from China, that the EU industry had not fully recovered and that it remained vulnerable to injury which could be caused by the presence of substantial amounts of dumped imports. In recitals 126 and 127, the Council set out the reasons for which imports from Croatia could not lead to the recurrence of injury.

80      It should also be noted that the review of the likelihood of recurrence of injury requires the assessment of complex economic matters in respect of which the EU institutions have a broad discretion. Judicial review of that assessment must, accordingly, be limited to verifying whether the procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there have been manifest errors of assessment of the facts or a misuse of power (judgments in Miwon v Council, paragraph 25 above, EU:T:2000:92, paragraph 94, and Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 46). Moreover, the choice of criteria to be used for the purposes of examining a likelihood of recurrence of injury falls, in each individual case, within the Commission’s discretion and can be censured only in the event of a manifest error (see, to that effect, judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 59).

81      It is in the light of those considerations that it is appropriate to examine the various arguments supporting the second complaint of the first part of the second plea in law.

82      Firstly, the applicants submit that the Council incorrectly based itself on the spare capacity in Russia and on the likely increase therein for the purpose of reaching a finding that a recurrence of injury was likely, whereas the applicants had presented arguments on the attractiveness of markets other than the EU market.

83      The applicants’ argument has two distinct aspects. On the one hand, they criticise the link made by the Council between the theoretical spare production capacity in Russia and the likelihood of recurrence of injury. On the other, they submit that the Council did not take account of a number of their arguments, presented during the administrative procedure, relating in particular to the attractiveness for the applicants of markets other than the EU market.

84      First, with respect to the relevance and scale of spare production capacity in Russia, it is clear from the contested regulation that the ‘installed’ capacity in Russia is estimated at 4 million tonnes and that Russian industry operates at only 70% of its production capacity. This results in an unused capacity of more than one million tonnes per annum, or nearly 65% ​​of EU consumption, it being noted that that capacity could increase further over the coming years. The Council also noted that, as a result of the Russian exporting producers’ lack of cooperation, information contradicting those findings could not be verified and was therefore not accepted (recital 71 in the preamble to the contested regulation).

85      According to the applicants, the finding of significant spare capacity in Russia is the sole ground supporting the conclusion, in recital 123 in the preamble to the contested regulation, that it is likely that, in the event of the expiry of the anti-dumping measures, significant quantities of products would enter the EU market in order to allow, in particular, Russia to regain the market share lost as a result of the anti-dumping duties. If, as the applicants submit, such a statement is the result of conjecture, it should be recalled that the likelihood of recurrence of injury should, in this case, be apparent from an assessment of prospective imports from Russia (see, to that effect, judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraphs 41 to 44).

86      Of itself, the criticism made by the applicants is no more conclusive in showing the existence of a manifest error of assessment of the facts by the Council than the parallel made with the reduction in anti-dumping duties, which occurred in 2008 following Regulation No 812/2008 (see paragraph 3 above). There was at that time no question whatsoever of the expiry of anti-dumping duties, but of a decrease from 35.8% to 27.2%, the potential impact of which on imports from Russia cannot be compared to those resulting from a total elimination of the anti-dumping duties.

87      More broadly, the applicants, relying on the case-law of the WTO’s dispute-settlement body, insist on the obligation of the EU institutions to determine the likelihood of recurrence of injury on the basis of the positive evidence resulting from a sufficient factual basis. It should be noted, as the Council does in it defence, that the level of spare production capacity, as indicated in the contested regulation, was not challenged by the applicants and that it relates to the situation existing at the time when the contested regulation was adopted, as required by the aforementioned case-law.

88      With more specific respect to the theoretical nature of the production capacity to which the contested regulation relates, the applicants submit that the Council erred in not examining the actual or technical production capacity. They appear to be arguing that that concept corresponds to the maximum possible production capacity, referring, by way of example to the record capacity utilisation rate of 80% achieved by the EU industry in 2008, to that of 67% achieved that same year by the EU industry for seamless tubes and pipes or to the complaint data, in the light of which the review was initiated, and from which it emerges that an EU industry capacity utilisation rate of between 75% and 77.9% is sufficient, according to the complainants.

89      However, as noted by the Council and, since the hearing, the Commission, several observations can be made on this point.

90      First, the Council notes that, as a result of the applicants’ lack of cooperation with the investigation, the institutions were not able to verify their actual production capacity and that, therefore, it acted correctly in using the available data to arrive at its conclusions as to the conditions for the imposition of anti-dumping duties, including with regard to the spare production capacity of other Russian exporting producers (see paragraph 37 above).

91      Second, the applicants did not challenge, in particular during the hearing, the Council’s statement that they had not raised the argument relating to actual production capacity at any point in the course of the investigation.

92      Third, when questioned at the hearing on this matter, the applicants explained what they meant by actual or technical capacity utilisation. While they submit that there is actual capacity utilisation corresponding to total production capacity around the clock seven days a week, less the time required for maintenance or repair of the installations, it is quite evident from their argument that, in reality, they are referring to the rate of use of the production capacity. However, the fact that the rate of use of the production capacity differs from the total production capacity does not call into question the appropriate nature of the Council’s taking account of spare capacity in Russia, which, as a result of the difference between total production capacity and the rate of use of such capacity, reflects the potential for production of the dumped products, which could, if the anti-dumping measures were to expire, be exported to the EU market.

93      Furthermore, in a context in which, as in the present case, the continuation of dumping is not disputed by the applicants, the fact that there is significant spare production capacity in the country of origin of the dumped products is a factor of which the institutions must take account when determining whether, upon expiry of the anti-dumping measures, there is a likelihood that the injury will recur.

94      Moreover, with respect to the attractiveness of markets other than that of the European Union, the applicants submit, first, that the contested regulation does not contain, in the context of the assessment of the likelihood of recurrence of injury, an assessment of the possible destination of unused Russian production capacity for the domestic market of that country or for markets other than that of the European Union. Observations on this point, they submit, were made in the part of the contested regulation relating to the likelihood of a continuation of dumping. Next, the applicants refer to the information which they claim to have provided to the Commission during the investigation, which shows that markets other than that of the European Union are more attractive for them. At issue are the observations submitted by TMK on 22 August 2011, the presentation made at the hearing on 6 March 2012 and the observations submitted after that hearing on 23 March 2012.

95      First, the applicants rely, implicitly, on a lack or inadequacy of reasoning, relating to the possible destination of the production resulting from the Russian spare production capacity.

96      It should be borne in mind in this regard that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (see, by analogy, judgments of 9 January 2003 in Petrotub and Republica v Council, C‑76/00 P, ECR, EU:C:2003:4, paragraph 81, and 12 September 2002 in Europe Chemi-Con (Deutschland) v Council, T‑89/00, ECR, EU:T:2002:213, paragraph 65).

97      In particular, the statement of the reasons on which regulations, which are measures of general application, are based does not have to specify the often very numerous and complex matters of fact or law dealt with in the regulations (judgments of 20 October 1999 in Swedish Match Philippines v Council, T‑171/97, ECR, EU:T:1999:263, paragraph 82, and Europe Chemi-Con (Deutschland) v Council, paragraph 96 above, EU:T:2002:213, paragraph 66).

98      First, the fact, noted by the applicants, that the assessment of the attractiveness of the EU market and other markets was not carried out as part of the evaluation of the likelihood of recurrence of injury, but took place during the assessment of the continuation of dumping, does not affect the legality of the contested regulation. The requirement to be satisfied by the statement of reasons is always assessed in the light of the context in which the contested act takes effect and, with respect to some of the grounds of that act, in the light of the whole of that act (see paragraph 96 above).

99      Next, having regard to the principles set out in paragraph 97 above, the Council cannot, in this case, be required to give specific grounds for the various elements of fact and of law which it had to take into consideration for the purpose of adopting the contested regulation. It is apparent from recitals 72 and 73 in the preamble to the contested regulation, the content of which is already set out in the definitive disclosure, that, under section 4.1.2.4 entitled ‘Attractiveness of the Union market and other third countries markets’, the Council assessed the attractiveness of various world markets for dumped products, by taking into consideration, in particular, that the EU market was one of the largest in the world and was continuing to grow, and that it was clear, on the basis of the information collected during the investigation, that Russian companies were eager to strengthen their presence in one of the largest markets in the world and to retain a significant share of the EU market.

100    While such an assessment is focused on the situation of the EU market and its attractiveness for Russian exporters, it should be noted that it was carried out, as claimed by the Council in its defence, by taking account of markets other than that of the European Union, since the grounds of the contested regulation reveal that the finding of the importance of the EU market was reached by conducting an — admittedly brief — comparison with other markets. It is expressly stated that the EU market is one of the largest in the world. It is also stated that that market continues to grow, a fact which is likely to strengthen its appeal to Russian exporting producers. In compliance with the principles set out in paragraphs 96 and 97 above, the Council cannot be criticised for having failed to give sufficient grounds for the contested regulation with respect to the possible destination of Russian spare production capacity to markets other than the EU market.

101    While the applicants pointed at the hearing to a contradiction in the contested regulation as regards the supposed attractiveness of the EU market, on the basis that much of the information set out therein demonstrates that that market, far from being attractive, is shrinking, it must be stated that this is a new argument, which is not connected with the second plea as it was raised in the application, and is therefore inadmissible pursuant to Article 44(1)(c) and Article 48(2) of the Rules of Procedure of the General Court (see, to that effect, judgment of 21 March 2002 in Joynson v Commission, T‑231/99, ECR, EU:T:2002:84, paragraph 154).

102    Secondly, the applicants take the view that the Council made a manifest error of assessment of the facts with respect to the attractiveness of the Russian domestic market and other markets as a destination for potential production resulting from spare capacity in Russia. The Council is alleged not to have taken account of the observations submitted by TMK on 22 August 2011, of the presentation made at the hearing on 6 March 2012 or of the observations submitted thereafter on 23 March 2012.

103    At the outset, it should be noted that the Council rightly found, in recital 17 in the preamble to the contested regulation, that no Russian exporting producer had responded to the questionnaire and that it was therefore held that none of them had cooperated with the investigation (see paragraph 37 above).

104    Next, it is appropriate to examine the elements of which the applicants availed themselves during the administrative procedure.

105    In TMK’s observations of 22 August 2011, it was argued that demand on the Russian domestic market and steel consumption had risen sharply in previous years and that that trend was set to continue in the following years; that, in the previous years, exports from Russia had become much diversified to the countries of the Commonwealth of Independent States (CIS), the Middle East and the United States, with exports to the European Union representing only a small share of Russian exports; that export prices, for identical or similar goods to those on which anti-dumping duties had been imposed, for Belarus, Kazakhstan and the United States were higher or comparable to those set for the EU market, account being taken of those duties; and that TMK wished to become a global player on the market for the products at issue and to continue diversifying the destinations for its exports. The arguments put forward in the observations of 22 August 2011 were supported by graphs included in a document submitted by the organisation ‘Russia Steel’ before the Steel Committee of the Organisation for Economic Co-operation and Development (OECD).

106    In the presentation which it made at the hearing on 6 March 2012, TMK focused its argument on the level of its export prices on markets other than that of the European Union, but also pointed out several other aspects relating to its exports. With respect to the level of its export prices, TMK submitted a comparative analysis of prices for the period from October 2010 to September 2011, relating, on the one hand, to its main export market, Kazakhstan, without making any adjustment to the price level in the light of the significant volumes which were sold there and, on the other hand, to the EU market, by including the anti-dumping duties in force in the price. With respect to the other aspects of TMK’s exports, it was noted that there was a strong demand for the products at issue on the Russian domestic market as a result of major oil and gas projects, that TMK had no interest in weakening its position on that market in order to divert sales to the EU market, that its main export markets were Kazakhstan, Belarus, Turkmenistan and the United States, that it had established subsidiaries in Kazakhstan and the United States, a fact which constituted a strong incentive to supply them with large quantities of the products at issue, and that, in the other countries mentioned, it acted as a supplier for major clients involved in large-scale projects.

107    In its observations of 23 March 2012, TMK first of all argued that it had no interest in supplying the EU market from its Russian production sites, since, in 2006, it had acquired TMK-Artrom in Romania, which was better placed to do so. TMK then reiterated the arguments set out at the hearing of 6 March 2012, regarding the prices charged on its main export markets, namely Kazakhstan, Belarus and Turkmenistan, stating the exact amount of sales and volumes involved, and regarding the reasons why it focused on the Russian domestic market and on export markets other than that of the European Union, having regard in particular to the particular characteristics and outlets for the products that it manufactures for the Russian energy industry.

108    While the facts set out in paragraphs 105 to 107 above — which, given the applicants’ lack of cooperation, could not be verified by the Commission — tend to show the orientation of Russian exports towards the Russian domestic market or the markets of the CIS States at prices higher than those obtained on the EU market, they do not, however, make it possible to take the view that the sales stemming from the Russian spare capacity would indeed follow the same path. In any event, it should be noted that, although the applicants submit that the rate of use of the Russian production capacity established in the contested regulation is not far from the ‘actual’ or ‘technical’ production capacity (see paragraph 88 above), forecasts for the production and consumption of steel in Russia reveal a significant decline in their growth rates from 2011. Furthermore, no evidence provided by TMK demonstrates the short-term outlook for the Kazakh, Turkmen or Belarusian markets. In a context of significant spare capacity, which is not disputed by the applicants, the Council was entitled to find, without making a manifest error of assessment, that it was likely that part of that capacity would be used for exports to the European Union at dumped prices.

109    In those circumstances, the Council was entitled to rely on Russian spare capacity for the purpose of reaching a decision as to the likelihood that injury would recur.

110    Secondly, the applicants argue that, with respect to the prices of imports from Russia, the Council found that those prices were lower than prices in the European Union without having taken account of other factors.

111    It should be recalled that, with respect to the price of imports from Russia, the applicants do not dispute the Council’s findings, in recitals 66 to 74 in the preamble to the contested regulation, relating to the likelihood of continuation of dumping. The Council has, in particular, noted that the price of dumped imports from Russia remained relatively low (recital 69 in the preamble to the contested regulation) and that those imports were still being dumped (recital 74 in the preamble to the contested regulation). In addition, the Council noted an undercutting of the prices of imports from Russia and Ukraine of between 20.4% and 55.4%, depending on the products concerned (recital 96 in the preamble to the contested regulation).

112    With respect to the possible factors liable to affect the pricing of imports from Russia of the products at issue on the EU market, it should be noted that the applicants merely express a general criticism to that effect, referring, without more, to the level of the prices of the relevant products on the major markets other than the EU market, on the basis of information presented as publicly accessible.

113    If it were appropriate to consider the export prices in the markets of the CIS States as they were set out in the presentation made at the hearing of 6 March 2012, it would be necessary to state that those prices could not be verified by the Commission as a result of the applicants’ lack of cooperation during the investigation, and that they relate to only four products, the share of which in the volume of exports to the EU market is not specified.

114    Consequently, the argument relating to the prices of imports from Russia must be rejected.

115    Thirdly, the applicants submit that the Council did not properly assess the information available to it with respect to trends affecting imports from Russia, especially those from TMK.

116    In this context, the applicants submit that, as a result of investments — referred to as significant — in TMK-Artrom in Romania, it is less worthwhile for TMK to export to the European Union and that exports from Russia to the European Union had continually declined since 2007, despite the decrease in the anti-dumping duty applied to TMK by Regulation No 812/2008.

117    With respect to the arguments concerning TMK-Artrom and the impact of its production and sales on imports from Russia, the file in the case shows that the information relating thereto was not submitted to the institutions during the administrative procedure.

118    In this regard, two observations must be made. First, it has not been shown, or even claimed, that TMK-Artrom’s situation was part of the available data which the institutions should have taken into account in order to reach their findings in accordance with Article 18(1) of Regulation No 1225/2009. Second, it is appropriate to recall the case-law according to which the lawfulness of an act which is subject to an action for annulment must be assessed in the light of the information available to the institution responsible for that act at the time when it was adopted (judgment of 22 May 2014 in Guangdong Kito Ceramics and Others v Council, T‑633/11, EU:T:2014:271, paragraph 79). In those circumstances, the applicants may not impugn the institutions’ failure, when determining the likelihood of recurrence of injury, to take account of an element which had not been brought to their attention.

119    With respect to the decline in imports from Russia of the products at issue to the EU market since 2007, it must be stated, as the Council has done, that that circumstance is not sufficient to demonstrate that the Council erred manifestly in its assessment of the facts which led it to regard as likely the recurrence of injury by reason of dumped imports, since the downward trend in imports may be explained in large measure by the imposition of anti-dumping measures by Regulation No 954/2006. That explanation also applies in regard to the continuation of the decline in imports following the entry into force of Regulation No 812/2008, as a result of which the anti-dumping duties imposed by Regulation No 954/2006 on TMK were reduced from 35.8% to 27.2%, that reduction being certainly insufficient for TMK to increase its exports to the EU market.

120    Furthermore, it should be noted, upon reading recital 95 in the preamble to the contested regulation, that the decline of imports from Russia and Ukraine to the EU market occurred essentially during 2009, decreasing from 72 328 to 40 611 tonnes, with the situation stabilising with a marginal decline at 38 108 tonnes during the RIP. With respect to the figures submitted by the applicants specifically relating to imports from Russia, these show a very sharp drop of those imports in 2008 from 54 590 to 19 333 tonnes, followed by a smaller decline over the following years: 15 360 tonnes in 2009, 14 561 tonnes in 2010 and 10 791 tonnes during the RIP.

121    Accordingly, the trend affecting imports from Russia since 2008 does not, of itself, prove that there was a manifest error of assessment.

122    Fourthly, the applicants take the view that the Council made a manifest error of assessment as to the health of the EU industry and as to the impact that the expiry of the anti-dumping measures would have on that industry.

123    In essence, the applicants submit that the Council relied on the assumption that, in the absence of anti-dumping measures, the EU industry would be exposed to injury. In the light of the EU industry’s results since 2007, in terms of increased market share and profitability levels, indicative of a removal of injury during the reference period, which was, moreover, noted by the Council, the applicants take the view that the cause of the likelihood of recurrence of injury lies in the structural problems of the industry and not in the imports allegedly being dumped.

124    It should, first of all, be noted that retention of an anti-dumping measure depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned, and that the mere possibility that dumping and injury might continue or recur is insufficient to justify retaining a measure; the latter is dependent on the likelihood of continuation or recurrence of dumping and of injury actually having been established (judgment in Euroalliages v Commission, paragraph 21 above, EU:T:2001:166, paragraph 42).

125    Thus, the fact that the EU industry has recovered from past dumping by increasing its market share and profitability is not sufficient to demonstrate a manifest error of assessment of the information in the light of which the likelihood of recurrence of injury was established. In a prospective analysis of the EU market in the event of the expiry of the anti-dumping measures, the institutions must take account of the likely developments of that market having regard to the various elements which may affect those developments, since an application by analogy of the provisions of Article 3(5) of Regulation No 1225/2009 is not possible, contrary to what the applicants submit, given that the purpose of an expiry review is not to examine the actual effects of dumping.

126    Moreover, the applicants fail to mention an important element in their analysis of the effects on the EU industry of imports from Russia of the products at issue, which they do not dispute, namely the finding in the contested regulation of a continuation of dumping in relation to those products and the undercutting of their prices (recitals 48 to 53 and 96 in the preamble to the contested regulation). It is in particular in the light of those findings that the Council concluded that there was a likelihood of a continuation of dumping (recitals 66 to 73 in the preamble to the contested regulation). As a result of those circumstances, which are not disputed, the Council was legitimately entitled to find that the recurrence of injury to the EU industry was probable, having regard to the significant spare production capacity. The applicants cannot, therefore, argue that the Council merely assumed that the injury would recur if the anti-dumping measures were discontinued.

127    Furthermore, whilst it cannot be denied that the recovery of the EU industry is a factor that the Council must take into account for the purpose of determining whether a recurrence of injury is likely, such a factor should be the subject of an overall assessment in conjunction with the other relevant factors of the case, without it being possible to attach pre-eminent importance to it in the analysis that the institutions must carry out.

128    Consequently, the Council did not make a manifest error of assessment in concluding that it was likely that the injury would recur, having taken into consideration the continuation of dumping with regard to the products at issue over the reference period, the existence of significant spare capacity, particularly in Russia but also in Ukraine (recitals 123 and 124 in the preamble to the contested regulation), and having found that the low prices for imports of the products at issue exerted a downward pressure on prices on the EU market.

129    Consequently, the first part of the second plea in law must be rejected.

 The second part of the second plea in law, alleging an infringement of the principle of equal treatment in the assessment of the likelihood of recurrence of injury and of the likelihood of continuation of dumping

130    The applicants argue that the Council infringed the principle of equal treatment by applying two different methods to Croatia and Russia in order to establish the likelihood of the recurrence of injury. In essence, they argue that, in order to assess the likelihood of recurrence of injury, the Council relied on the actual volume of imports from Croatia, indicating that the volumes exported to the European Union were negligible. Furthermore, the fact that the only Croatian factory ceased production at the end of the RIP and that it was for sale should not have been taken into consideration, since it did not in itself affect Croatian production capacity, which was 110 000 tonnes, or 6% of EU consumption. A similar infringement of the principle of equal treatment was made in assessing the likelihood of continuation of dumping.

131    It must be observed that the principle of equality and non-discrimination precludes, first, comparable situations from being treated differently, and second, different situations from being treated in the same way, unless such treatment is objectively justified (see judgment in Acme v Council, paragraph 29 above, EU:T:1999:251, paragraph 116 and the case-law cited).

132    It should be noted that, in assessing the situation of the Croatian exporting producers, the Council could not disregard the most specific aspects thereof. It is not disputed that there was only one Croatian producer of the products at issue, that that producer had ceased production at the end of 2011, having ceased taking new orders in autumn 2010, with production having completely stopped thereafter. In addition, on the date of the contested regulation, the company in question was still up for sale. That information therefore led the Council correctly to conclude that, for Croatia, it was necessary to disregard the approach followed in order to determine the likelihood of the continuation of dumping and recurrence of injury with respect to products from Russia, since the assessment of a likely volume of imports from Croatia was particularly difficult.

133    It follows from the foregoing that, without it being necessary to respond to the applicants’ other arguments, the second part of the second plea in law must be rejected and, consequently, the second plea in law in its entirety.

 The third plea in law, alleging infringement of Article 9(4) and Article 21 of Regulation No 1225/2009 and of the principle of equal treatment, as a result of a manifest error of assessment in the course of the analysis of the EU interest

134    The third plea in law in this action is divided into two parts. In the first part, the applicants argue that the Council made a manifest error of assessment in the assessment of the EU interest, in the absence of a thorough and careful analysis in that regard. In the second part, the applicants submit that the Council infringed the principle of equal treatment in its assessment of the EU interest, by having, at the same time as the expiry review at issue, found that it was not contrary to the EU interest to bring to an end the investigation relating to the same products from Belarus.

 The first part of the plea, alleging the existence of a manifest error of assessment in the appraisal of the EU interest

135    According to the first subparagraph of Article 11(2) of Regulation No 1225/2009, an anti-dumping measure is to expire five years from its imposition, ‘unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury’.

136    It is clear from that provision, first of all, that the expiry of a measure after five years is the rule, whereas its retention constitutes an exception. It is also clear that retention of a measure depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned. Lastly, it is clear from that provision that the mere possibility that injury might continue or recur is insufficient to justify retaining a measure; that retention is dependent on the likelihood of continuation or recurrence of injury actually having been established by the competent authorities on the basis of an inquiry (see judgment of 8 July 2003 in Euroalliages and Others v Commission, T‑132/01, ECR, EU:T:2003:189, paragraph 37 and the case-law cited).

137    Article 11(2) of Regulation No 1225/2009 does not refer expressly to the European Union interest as one of the conditions for retaining a measure that is due to expire (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 38).

138    However, Article 11(5) of Regulation No 1225/2009 provides that the expiry review should be conducted in accordance with the relevant provisions of that regulation concerning the procedures and conduct of investigations (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 39).

139    Moreover, Article 11(9) of Regulation No 1225/2009 provides as follows:

‘In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.’

140    It may be inferred from those provisions that the conditions for retaining a measure that is due to expire are, mutatis mutandis, the same as those for the imposition of new measures (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 40).

141    In that regard, Article 9(4) of Regulation No 1225/2009 states:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [Union] interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. ...’

142    Consequently, the European Union interest requirement, provided for in Article 9(4) and Article 21 of Regulation No 1225/2009, must also be taken into consideration during a review when deciding whether to retain measures that are due to expire (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 42).

143    In that context, an assessment of the European Union interest also requires the interests of the various parties concerned to be balanced against the public interest and is therefore based on choices of economic policy. In that regard, the last sentence of Article 21(1), which provides that the authorities may cease to apply measures where they ‘can clearly conclude that it is not in the [Union] interest’ to apply them, requires the Commission in particular to balance the interests in a transparent manner and to justify its findings, setting out the facts justifying the decision and the legal considerations on the basis of which it adopted that decision. The Commission is therefore required to state the reasons for its assessment in a sufficiently precise and detailed manner so as to enable the General Court effectively to conduct a judicial review of that determination (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 48).

144    Finally, it is for the EU Courts, when dealing with an action for annulment against a Commission decision terminating an anti-dumping proceeding on grounds of the European Union interest, to verify whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been any error of law or manifest error of assessment of those facts or a misuse of powers (see judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 49 and the case-law cited).

145    The first part of the third plea must be answered in the light of the foregoing considerations.

146    The applicants set out several arguments by which they submit that the Council has strongly linked the EU interest to that of the industry in question, without taking account of the interests of the other parties. First, the applicants argue that, since the continued imposition of anti-dumping measures constitutes an exception to the normal course of trade, the measures may be maintained only if they are justified in the light of the EU interest. Secondly, they take the view that, like the excellent health of the EU industry, the excessive duration of the anti-dumping measures in this case, of almost 20 years, should have been taken into account in the analysis of the EU interest. Thirdly, they take the view that the Council’s assessment is vitiated by a manifest error, since it provides no more compelling justification than the pursuit of profit derived by the EU industry from the continued imposition of anti-dumping duties. Fourthly, they argue that the Council failed to analyse in depth the effects of the continued imposition of anti-dumping measures on the competitive environment, including users and end customers, and the need to preserve that environment.

147    First of all, it must be stated that, by their argument on the continued imposition of anti-dumping measures only in the case where those measures are justified having regard to the EU interest, the applicants are not in a position to challenge the legality of the contested regulation.

148    The applicants are thus merely stating the rule set out in Article 9(4) and Article 21 of Regulation No 1225/2009 that, even when the likelihood of continuation or recurrence of dumping and injury has been established, that regulation does not confer on the EU industry which is bringing the complaint a right to continued imposition of the protective measures. In order to reach that conclusion, the institutions must verify, in accordance with those provisions, that protective measures are justified in the light of EU interest.

149    Consequently, the argument has no bearing on the legality of the contested regulation.

150    Secondly, the applicants argue that, on the one hand, the excessive duration of the anti-dumping measures — of almost 20 years — and, on the other, the excellent health of the EU industry should have been taken into consideration by the institutions as part of the analysis of the EU interest.

151    It should be noted that the Council took into consideration the argument concerning the duration of the anti-dumping measures relating to the products in question originating in Russia. In recital 142 in the preamble to the contested regulation, the Council noted the argument of certain interested parties as to the excessive length of the anti-dumping measures. It noted that this was the first expiry review relating to the ‘product’ at issue, which had been covered by such measures only since 2006. On that point, it stated that the measures that had been in force from 1997 to 2004 for imports from Russia related to a product the definition of which was much more limited. Finally, it took the view that, since it had been found that the conditions in Article 11(2) of Regulation No 1225/2009 for the continued imposition of the measures were met, the duration of the measures was not a relevant argument.

152    Accordingly, it should be noted that the Council did indeed take into consideration the question of the duration of the anti-dumping measures when assessing whether or not it was in the European Union’s interest to continue to impose those measures, and that the applicants’ argument is therefore unfounded.

153    Finally, whilst it is true that the institutions have sometimes taken into consideration the duration of the anti-dumping measures when holding that it was not in the interest of the European Union to impose or maintain such measures, it should be noted, as the Council did in its defence, that it was found, in this case, that the EU industry had taken advantage of the anti-dumping measures imposed in 2006 (see recital 121 in the preamble to the contested regulation and, with respect to the increase in market share of the EU industry, recital 110 in the preamble to the contested regulation). With respect to the users of the products at issue, the Council found that, given the fact that the proportion of those products in the users’ production costs was relatively low, the effect of the continued imposition of the anti-dumping measures was insignificant.

154    In the present case, it has not been shown that the Council made a manifest error of assessment in its appraisal of the EU interest with respect to the duration of the anti-dumping measures. Quite to the contrary, the Council has acted in accordance with the principles noted in paragraphs 141 and 143 above, by balancing against each other the various interests involved and in concluding that it was appropriate to continue to impose the anti-dumping measures, having noted the positive aspects for the EU industry of their imposition by Regulation No 954/2006 and the likelihood of recurrence of injury if the measures were not maintained (recitals 130 and 131 in the preamble to the contested regulation).

155    Consequently, the argument relating to the excessive length of the anti-dumping measures must be rejected.

156    With respect to the argument concerning the Council’s obligation to take account of the excellent health of the EU industry in its assessment of the EU interest, it should be noted that this argument was raised by the applicants in their reply.

157    The parties having been questioned at the hearing on this point, the Council concluded that this argument was inadmissible.

158    Pursuant to Article 44(1)(c) and Article 48(2) of the Rules of Procedure, it must be held that that argument, which is made in support of the third plea, is out of time, since it was raised in the reply, and must be rejected as inadmissible (see, to that effect, judgment in Joynson v Commission, paragraph 101 above, EU:T:2002:84, paragraph 154).

159    In any event, while the applicants argue that, in the light of ‘the healthy situation of the Union industry and the high market share of the Union industry’, it could not validly be held that the continued imposition of the anti-dumping measures was in the interest of the European Union, it must be stated that, by its brevity, that argument does not explain how the health of the EU industry should have led the Council to conclude that the continued imposition of the measures was not in the interest of the European Union.

160    Thirdly, the applicants take the view that the Council’s assessment is vitiated by a manifest error inasmuch as it provides no more compelling justification, in the analysis of the EU interest, than the pursuit of the profit derived by the EU industry from the continued imposition of the anti-dumping measures.

161    By that argument, the applicants appear to be challenging the method of assessment of the EU interest implemented by the institutions with a view to the adoption of the contested regulation, by arguing that the analysis of the grounds for the continued imposition of the anti-dumping measures should have been conducted in a particularly thorough and meticulous manner. The applicants allege that this was not the case, since the reason given by the Council for the continued imposition of the measures is inadequate.

162    It is admittedly true that the EU industry does not have the right to retain a measure that is due to expire even where the likelihood of dumping and injury continuing and recurring has been established, the maintenance of such a measure depending on the finding that, in accordance with Article 9(4) and Article 21 of Regulation No 1225/2009, the measures are justified in the light of the EU interest (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 44).

163    However, it should be recalled that, when assessing the EU interest, after having balanced against each other the interests of the various parties concerned and the public interest, the institutions may cease to apply the measures where they ‘can clearly conclude that it is not in the [EU] interest’ to apply them (judgment in Euroalliages and Others v Commission, paragraph 136 above, EU:T:2003:189, paragraph 48). This means that, under the second and third sentences of Article 21 of Regulation No 1225/2009, when the other conditions for the imposition of an anti-dumping duty — which are dumping, injury and causal link — are met, the institutions may refrain from applying the duties only when they can conclude clearly that it is not in the interest of the European Union to follow that approach (see, to that effect, judgment of 9 December 2009 in Apache Footwear and Apache II Footwear v Council, T‑1/07, EU:T:2009:483, paragraph 113).

164    The applicants’ argument, which relates, in essence, to the inadequacy of the justification for the continued imposition of the anti-dumping measures on the basis of the EU interest, cannot demonstrate that the EU interest required the non-application of the measures. Moreover, it should be noted that the Council took into consideration the interests of the importers and users but found that the impact of the continued imposition of the anti-dumping measures on the situation of those economic operators was limited or negligible, a finding which the applicants do not challenge with respect to the importers.

165    Fourthly, the applicants submit that the Council found that the purpose of the anti-dumping measures was to enable the EU industry to continue to increase sales, prices and profits and that it did not conduct a thorough analysis of the effects of the continued imposition of the anti-dumping measures on the competitive environment, particularly on users and end users, or on the need to preserve that environment.

166    It is appropriate to note, as the Council did in its defence, first of all, the lack of specific argument alleging that the anti-dumping measures are contrary to the interests of the users.

167    Next, as regards the preservation of a competitive environment, the applicants’ argument assumes that the continued imposition of the measures is liable to create barriers to the exports of the products at issue from Russia to the EU market. It should be noted that anti-dumping measures, as a result of both their subject-matter and desired effect, must permit, rather, competition to be restored in a given market by seeking to eliminate the distortions to which that market is subject and which result from dumping practices. It is therefore, in principle, contrary to the purposes of the anti-dumping legislation that, having established the existence or likelihood of the continuation or recurrence of dumping causing injury, the institutions should refrain, in the interest of the European Union, from imposing or maintaining anti-dumping duties, in order to ensure effective competition on the EU market. Such an option rather risks restricting competition on that market by providing an additional benefit to exporters selling dumped products, which could allow them to oust EU producers.

168    Consequently, it cannot be accepted that, in the present case, the Council should have concluded that it was not in the interest of the European Union to maintain the anti-dumping measures on the sole ground that a reliable competitive environment should have been preserved, without that notion otherwise being specified.

169    It follows from paragraphs 146 to 168 above that the first part of the third plea in law must be rejected.

 The second part of the third plea in law, alleging infringement of the principle of equal treatment in the assessment of the EU interest

170    The applicants submit that the Council infringed the principle of equal treatment in its assessment of the EU interest, on the ground that, at the same time as it adopted the contested regulation, it terminated an investigation brought against Belarus, which exported five times more of the products at issue at a price that the complainant regarded as lower, the complainant having asserted that there was no point in imposing anti-dumping duties on Russia while failing to impose such measures on Belarus. Those differing assessments are alleged to point to the inconsistency of the reasoning set out in the contested regulation in the assessment of the EU interest.

171    It should again be recalled that the principles of equality and non-discrimination require that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such treatment is objectively justified (see judgment in Acme v Council, paragraph 29 above, EU:T:1999:251, paragraph 116 and the case-law cited).

172    It must be stated that, having regard to the broad discretion which the institutions had when assessing the EU interest for the purpose of adopting Commission Decision 2012/247/EU of 7 May 2012 terminating the anti-dumping proceeding concerning imports of certain seamless pipes and tubes of iron or steel, excluding seamless pipes and tubes of stainless steel, originating in Belarus (OJ 2012 L 121, p. 36), the applicants’ argument fails to demonstrate that that decision was contrary to the principle of equal treatment.

173    In addition, it should be noted that, in arguing that there was no infringement of the principle of non-discrimination on the ground that it was required to apply different criteria, the Council refers to the subject of the decision which was to be adopted in each of the two cases in question. With regard to imports from Belarus, it was appropriate to assess whether the termination of the investigation after withdrawal of the complaint by the EU industry was or was not in the interest of the European Union, whereas, in the present case, the Council was required to assess whether or not it was in the interest of the European Union to maintain anti-dumping duties.

174    Thus, while the assessment of the EU interest related to imports of similar products, in reality it had to be conducted in different settings. With a view to adopting Decision 2012/247/EU, the Council had to question the prospective EU interest in terminating the investigation. With a view to the adoption of the contested regulation, it had to determine whether it was in the interest of the European Union to maintain the anti-dumping measures covered by the expiry review. Accordingly, as the Council argues, the situations that the applicants seek to compare are different.

175    It is consequently necessary to reject the second part of the second plea in law, and therefore the plea in its entirety.

 The fourth plea in law, alleging infringement of the principle of sound administration, of the obligation to state reasons and of the applicants’ rights of defence

176    The fourth plea in law in this action comprises three parts. In the first part, the applicants submit that the Council infringed the principle of sound administration and their rights of defence by failing to examine the arguments which they had put forward during the investigation. In the second part, they submit that the Council did not provide an adequate statement of reasons to justify its finding as to the likelihood of a recurrence of injury. In the third part, they state that the Commission infringed the principle of sound administration and their rights of defence by providing the Member States with information on the case, on 11 April 2012, before it had received the applicants’ observations, and by convening the Anti-Dumping Advisory Committee before their hearing, which took place six days after the Committee had met.

177    It should be noted that, first, where the institutions enjoy a wide power of appraisal, as is clearly the case when determining the likelihood of the recurrence of injury in anti-dumping matters, respect for the safeguards guaranteed by the EU legal order in administrative procedures is of even greater fundamental importance. Those safeguards include, in particular, the requirement that the competent institution examine, carefully and impartially, everything relevant to the particular case, and the right of the person concerned to put forward his point of view and to have sufficient reasons given for the decision. Only in this way can the EU Courts verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (see judgment of 17 February 2011 in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, T‑122/09, EU:T:2011:46, paragraph 75 and the case-law cited).

178    As regards the right of the person concerned to put forward his point of view, Article 20 of Regulation No 1225/2009 sets out the means by which the parties concerned, including exporters, may exercise their right to be heard, which constitutes one of the fundamental rights recognised by the EU legal order and includes the right to be informed of the essential facts and considerations on the basis of which it is intended to recommend the maintenance of definitive anti-dumping duties (see judgment in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 76 and the case-law cited).

179    In that regard, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its assessment of the existence of dumping and the resultant injury (see judgment in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 77 and the case-law cited).

180    Moreover, it should be noted that the Court of Justice has held that natural or legal persons may not rely on an alleged breach of rules which are not intended to ensure protection for individuals but to organise the internal functioning of the institution’s services in the interests of good administration, such as rules relating to observance of the period laid down for the drawing-up of the provisional agenda for a Council meeting or making available all the language versions of a regulation on the day on which it is adopted (judgments of 7 May 1991 in Nakajima v Council, C‑69/89, ECR, EU:C:1991:186, paragraphs 48 to 51, and Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 102).

181    This does not, however, mean that an individual can never successfully plead infringement of a rule governing the decision-making process leading to the adoption of an act of the European Union. Among the provisions governing the internal procedures of an institution, a distinction must be made between those in respect of which natural and legal persons cannot plead infringement, because they concern only the rules governing the internal functioning of the institution and can have no effect on the legal situation of those persons, and those provisions which, if infringed, may be relied on because they create rights and contribute to legal certainty for those persons (judgment in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 103).

182    Thus, failure to comply with a rule relating to consultation of a committee can render the final decision of the institution concerned unlawful only if it is sufficiently substantial and has a detrimental effect on the legal and factual situation of the party alleging a procedural irregularity. The consultation of a committee is an essential procedural requirement, breach of which affects the legality of the act adopted following consultation, if it is proved that failure to forward certain material information did not allow the committee to deliver its opinion in full knowledge of the facts, that is to say, without being misled in a material respect by inaccuracies or omissions (see judgment in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 104 and the case-law cited).

183    That is not the case where the documents not sent to the committee, or sent only belatedly, do not contain any important new information not already contained in the file sent to the committee when it was convened. In such a situation, the fact that the Commission failed to send a document or sent it belatedly has no repercussions on the outcome of the consultation procedure. Such an omission cannot, therefore, render the whole administrative procedure invalid and thereby call into question the legality of the final measure (see judgment in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 105 and the case-law cited).

184    Moreover, the possibility that an infringement of provisions governing the consultation of a committee may affect the legality of the measure ultimately adopted is not called into question by the fact that the committee’s opinion is not binding (judgment in Zhejiang Xinshui Foods and Hubei Xinshui Foods v Council, paragraph 177 above, EU:T:2011:46, paragraph 106).

185    It is in the light of those considerations that the Court must examine the various parts of the fourth plea in law.

 The first part of the plea in law, alleging infringement of the principle of sound administration and of the applicants’ rights of defence as a result of the failure to examine their arguments

186    According to the applicants, the two principles mentioned above were infringed for two reasons. First, the Council failed to examine the arguments which the applicants had put forward on a number of occasions during the investigation concerning their main target market, the destinations of Russian exports, the level of their prices on the market of the European Union and on other markets, and the acquisition of a Romanian company enabling them to supply the EU market, since the contested regulation contains no reference, direct or indirect, to the applicants’ observations on the likelihood of a recurrence of dumping causing injury. Even though the applicants provided detailed information on sales outside the European Union, it is, in their view, for the EU institutions to demonstrate that Russian spare production capacity is likely to be sold in the European Union. Secondly, the applicants argue that respect for their rights of defence was not ensured, on the ground that the Council, with which responsibility for that obligation lay, neglected to disclose the essential facts and issues of the case to them, since they were not provided with any information relating to the calculation of the dumping margin or the price undercutting.

187    The Council contends that that argument must be rejected.

188    As a preliminary point, it should be observed that it follows from paragraphs 31 to 37 above that the applicants did not cooperate with the investigation, but rather confined themselves to participating in the examination procedure as interested parties. In that connection, they produced various documents, namely a letter of 22 August 2011 explaining the lack of a continuation or recurrence of injury following the expiry of the anti-dumping measures, together with annexes, a module containing the arguments which they had presented at a hearing with representatives of the Commission on 6 March 2012, and written observations submitted on 23 March 2012 (see paragraphs 31 and 37 above). They also responded to the definitive disclosure by way of observations submitted on 24 April 2012.

189    First of all, it should be noted that, with regard to the lack of review of the arguments put forward during the investigation, which related to their main target market, the destinations of exports from Russia, the level of their prices on the EU market and on other markets, as well as the acquisition of a Romanian company enabling them to supply the EU market, both the infringement of the principle of sound administration and that of respect for the rights of the defence are invoked.

190    In the absence of any reference in the contested regulation to their observations submitted on 24 April 2012 in response to the definitive disclosure, repeated at the hearing on 2 May 2012, the applicants submit that the Council did not examine the evidence produced with the requisite due diligence and impartiality and failed to take account of all relevant factors, thereby infringing the principle of sound administration and their rights of defence.

191    In this regard, it should be recalled that the statement of the reasons on which regulations, which are measures of general application, are based does not have to specify the often very numerous and complex matters of fact or law dealt with in the regulations. Consequently, if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (judgments in Swedish Match Philippines v Council, paragraph 97 above, EU:T:1999:263, paragraph 82, and Europe Chemi-Con (Deutschland) v Council, paragraph 96 above, EU:T:2002:213, paragraph 66).

192    It should be noted that, as regards the argument relating to the destinations of imports from Russia put forward in the letter of 22 August 2011, it is apparent from recitals 72 and 73 in the preamble to the contested regulation, which are already set out in the definitive disclosure and the content of which is the same, that, under section 4.1.2.4 entitled ‘Attractiveness of the Union market and other third countries markets’, the Council assessed the attractiveness of various world markets for dumped products, by taking into consideration, in particular, the facts that the EU market was one of the largest in the world and was still growing, and that it was clear, on the basis of the information collected during the investigation, that Russian companies were eager to strengthen their presence on one of the largest markets in the world and to retain a significant share of the EU market (see paragraph 99 above). In addition, no other arguments were put forward in the observations of 24 April 2012 on the definitive disclosure. As is apparent from paragraph 100 above, it should be noted that the Council took into consideration markets other than that of the European Union, since the statement of reasons underpinning the contested regulation reveals that the finding of the importance of the EU market was made by means of a comparison, admittedly brief, with other markets.

193    With respect to the argument relating to the export price of some of the TMK Group’s products sold in CIS countries, it should be noted that, in the absence of the applicants’ cooperation in the investigation and of any information on the actual export prices charged, those elements cannot be taken into account. Moreover, as argued by the Council in its defence, that argument cannot particularly affect the reasoning which led to the likelihood of recurrence of injury being established. The export prices on the markets of the CIS countries, as they appear from the presentation made at the hearing on 6 March 2012, relate to only four products, the share of which in the volume of exports in relation to the EU market is not stated. Finally, the applicants did not address this aspect of the case in their observations of 24 April 2012 relating to the definitive disclosure. Consequently, it was not necessary for the Council to respond specifically to those arguments in the contested regulation.

194    Finally, as regards the arguments concerning TMK-Artrom’s importance in supplying the EU market through the TMK Group, the Council noted that the products which were marketed by that company represented only a portion of the products which were dumped and subject to review. Accordingly, in this regard also, the Council was not required to set out specifically its reasoning in the contested regulation.

195    It is thus apparent from paragraphs 192 to 194 above that the argument alleging infringement of the principle of sound administration must be rejected.

196    As to the alleged infringement of the applicants’ rights of defence, it should be added that they were notified of the definitive disclosure to which they were given the opportunity to respond by submitting comments and at a hearing. The argument must therefore also be rejected on that point.

197    Secondly, it is sufficient to note that, as regards the argument that the Council infringed the applicants’ rights of defence by not providing them with any information relating to the calculation of the dumping margin and the undercutting, the Council was not under any obligation to provide details of the calculations sought, since, as it argued in its defence, the applicants had not in any way challenged those aspects of the examination procedure prior to the adoption of the contested regulation, nor had they asked to be provided with them.

198    It follows from the foregoing that that argument must be rejected, as must, consequently, the first part of the fourth plea in law also.

 The second part of the plea in law, alleging that the contested regulation is inadequately reasoned with respect to the likelihood of recurrence of injury

199    Principally, the applicants submit that the Council did not provide an adequate statement of reasons to justify its finding as to the likelihood of a recurrence of injury, since it did not take account of their arguments showing that the Russian industry’s spare capacity does not create a risk of recurrence of injury given the attractiveness of markets other than that of the European Union, and relating to the investments made in TMK-Artrom, the only reason given in the contested regulation for that risk being the fact that the EU market is one of the largest markets in the world and offers an attractive level of prices.

200    It follows from what was stated in response to the first part of the second plea in law (see paragraphs 99 and 100 above) and to the first part of the present plea (see paragraphs 192 to 194 above) that the contested regulation must be considered to be adequately reasoned.

201    With regard to the more specific inadequacies in the reasoning alleged by the applicants, first, it should be recalled that the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments in Petrotub and Republica v Council, paragraph 96 above, EU:C:2003:4, paragraph 81, and Europe Chemi-Con (Deutschland) v Council, paragraph 96 above, EU:T:2002:213, paragraph 65). Moreover, it should also be recalled that the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasons given are correct, the latter being a matter going to the substantive legality of the contested measure (judgment of 15 December 2005 in Italy v Commission, C‑66/02, ECR, EU:C:2005:768, paragraph 26).

202    It should be noted that, while the applicants allege an incorrect indication of the share of the EU market held by imports from Russia of dumped products in recitals 48 and 71 in the preamble to the contested regulation, they are in reality alleging an error that would affect the substantive legality of the regulation, without providing evidence of that error.

203    With regard to the other alleged irregularities observed, first, it should be noted that section 4.1.2.4 of the contested regulation does contain an assessment of the attractiveness of other third-country markets, since the assessment of the situation of the EU market and of its attractiveness to Russian exporters in that section of the regulation was carried out whilst taking into account markets other than that of the European Union; the statement of reasons relating to recital 73 reveals that the finding of the importance of the EU market was reached by an admittedly brief comparison with other markets. As for the fact that the title of section 4.1.3.4 evokes the attractiveness of other third-country markets, it should be noted that that section concerns a part of the contested regulation which relates to the situation of imports from Ukraine on the EU market and that, therefore, that finding has no impact on the applicants’ situation.

204    Secondly, the fact that the reference in recital 90 in the preamble to the contested regulation to recital 88 thereof is wrong cannot constitute inadequate reasoning, since, as the Council argues, it is a clerical error, the actual intended reference being to recital 89. Since the adequacy of the reasoning of an act emerges from its context, the same is true of the statement of reasons relating to a provision or of the specific consideration of an act, which is supported by the content of other provisions or considerations of which it forms part.

205    Thirdly, the possible contradiction between recitals 91 and 92 in the preamble to the contested regulation as to the conclusions drawn from the assessment of the conditions of competition in the three countries under investigation cannot affect the adequacy of the statement of reasons for that regulation. Admittedly, in recital 91, the products in question imported from the three countries under investigation and those produced in the European Union were found to be competing products, whereas, in recital 92, the conclusion was reached that, since the criteria set out in Article 3(4) of Regulation No 1225/2009 were not fulfilled in the case of Croatia, in particular the conditions of competition between imported products, imports from that country were to be examined individually. However, in recital 92 in the preamble to the contested regulation, the Council concluded that there was no need to cumulate imports from Croatia of the products at issue with imports from Russia and Ukraine of the same products, on the ground, clearly stated in recital 90, that imports from that country are negligible. Accordingly, any alleged contradiction does not affect the finding in recital 92 in the preamble to the contested regulation.

206    Fourthly, it is appropriate to reach the same conclusion with respect to the second contradiction allegedly affecting recital 92 in the preamble to the contested regulation, this time in conjunction with recital 90. It follows from what has just been stated that the condition set out in Article 3(4) of Regulation No 1225/2009, which was found by the Council to have been unfulfilled, is that relating to the negligible volume of imports of the products at issue from Croatia.

207    Fifthly, the applicants point to the fact that recital 123 in the preamble to the contested regulation incorrectly refers to recitals 69, 70, 77 and 78 for a summary of the explanations on the basis of which the Council found that the Russian and Ukrainian exporting producers had the opportunity to significantly increase the volume of their exports to the EU market. Recitals 66 to 74 in the preamble to the contested regulation relate to the position of Russian production. It is clear that, in recital 123 in the preamble to the contested regulation, the Council made a mistake and ought to have referred to recitals 70 and 71, which deal with the question of spare Russian production capacity. Recitals 75 to 81 in the preamble to the contested regulation relate to the situation of Ukrainian production. It is also clear that the Council made a mistake in recital 123 in the preamble to the contested regulation, since it should have referred to recitals 78 and 79. However, since the adequacy of the statement of reasons of an act emerges from the context of that act, it cannot be argued that the errors made by the Council — which, moreover, are minor — render the statement of reasons inadequate as a result of inconsistency, since it is easy to understand the reasoning followed in the parts of the contested regulation of which the recitals referred to in recital 123 form part.

208    Sixthly, the applicants point to a contradiction between recitals 121 and 130 in the preamble to the contested regulation, on the one hand, and recital 125, on the other. In the analysis of the situation of the EU industry, the Council found, in recital 121 in the preamble to the contested regulation, that the economic and financial situation of the EU industry had improved after the adoption of Regulation No 954/2006, concluding that the measures thus introduced had been effective and that the EU industry had recovered from past dumping. In recital 130 in the preamble to the contested regulation, the Council found that the EU industry was structurally viable in view of its positive economic development. Finally, in recital 125 in the preamble to the contested regulation, the Council held that the recovery of the EU industry could not be considered complete, particularly given the fact that, until 2009, the market shares held by the three countries upon which anti-dumping duties had been imposed by Regulation No 954/2006 had been taken by imports from China, and that that industry remained vulnerable to injury liable to recur. Those considerations are in no way contradictory, but, on the contrary, demonstrate the logic of the Council’s conclusions as to the consequences of the likelihood of recurrence of injury as a result of imports of dumped products from Russia and Ukraine. In reality, the improvement of the situation of the EU industry and its viability do not prevent a finding to the effect that that industry nonetheless remains vulnerable in the event of a likelihood of recurrence of injury.

209    Consequently, the second part of the fourth plea in law must be rejected.

 The third part of the plea in law, alleging infringement of the principle of sound administration and of the applicants’ rights of defence as a result of the fact that the Member States were prematurely provided with information and that the Anti-Dumping Advisory Committee was prematurely convened

210    The applicants submit that the Commission infringed the principle of sound administration and their rights of defence by providing the Member States with information on the case, on 11 April 2012, before it had received the applicants’ own observations, and by consulting the Anti-Dumping Advisory Committee before their hearing, which took place six days after that committee had met. According to the applicants, it is not inconceivable that the documents not communicated to the Committee contained important information which ought to have been taken into account, in particular as regards the absence of any examination of certain of their arguments in the definitive disclosure document, as highlighted in their observations of 24 April 2012. The applicants therefore consider that they were not given the opportunity to make their views known effectively.

211    The applicants note that the members of the Anti-Dumping Committee had less than one working day in which to examine the information sent by the Commission, which is not enough. The applicants submit that it cannot be excluded that the Anti-Dumping Committee might have changed its position if their observations had been available to it in writing and orally.

212    While the consultation of a committee may constitute an essential procedural requirement, the breach of which affects the legality of the act adopted following consultation if it is established that the failure to communicate certain material information did not allow the committee to deliver its opinion in full knowledge of the facts, that is to say, without having been misled on an essential matter by inaccuracies or omissions (see the case-law referred to in paragraph 177 above), that is not the case where the documents not sent to the committee, or sent only belatedly, do not contain any important new information not already contained in the file sent to the committee when it was convened. In such a situation, the fact that the Commission failed to send a document, or sent it belatedly, has no repercussions on the outcome of the consultation procedure and cannot, therefore, render the whole administrative procedure invalid and thereby call into question the legality of the final measure (see the case-law referred to in paragraph 183 above).

213    With respect to the conduct of the final phase of the expiry review of the anti-dumping measures, it is not disputed that on 4 April 2012 the applicants received the definitive disclosure, which stated that 24 April 2012 was the deadline by which their observations had to be submitted, that, on 12 April 2012, they requested a hearing with the Hearing Officer, which was held on 2 May 2012, after they had refused the dates proposed by that officer, which were 23, 24 or 25 April 2012. The latter information, submitted by the Council in its defence, is not disputed by the applicants. On 26 April 2012, the Commission obtained the opinion of the Anti-Dumping Advisory Committee, provided for in Article 15 of Regulation No 1225/2009, on its proposal for definitive anti-dumping duties (see paragraph 8 above).

214    Moreover, the Council submits, without being contradicted, that the Commission sent to the Anti-Dumping Advisory Committee the applicants’ observations of 24 April 2012 in the form of two separate notes, the first before the Committee’s meeting and the second after the hearing of the applicants by the Hearing Officer. The parties agree that the Anti-dumping Advisory Committee had only one working day to view the content of the observations of 24 April 2012. The applicants do not dispute, moreover, the Council’s comment to the effect that the hearing on 2 May 2012 contained no new observations.

215    A reading of the observations of 24 April 2012 makes it clear that the applicants addressed questions on which they had not yet submitted any observations, such as the situation of the EU industry, the duration of the anti-dumping measures, the difference in treatment between imports from Croatia and imports from Russia, and the termination of the investigation relating to imports of the products in question originating in Belarus. However, it must also be noted that the new elements contained in the observations of 24 April 2012 are relatively short, amounting to barely five pages, and are hardly fleshed out. It is appropriate to find, as the Council did, that the Anti-Dumping Advisory Committee was in a position to take account of the content of those new elements and to appraise their significance in assessing the likelihood of recurrence of injury within one working day. Indeed, most of the comments made in the observations of 24 April 2012, with the exception of those relating to the termination of the investigation for imports from Belarus, consist of criticisms of the considerations set out in the draft regulation, of which the Committee was already aware, formulated in the light of the previous regulations or of the Commission’s practice. Those comments contain no new information on the situation of the imports from the TMK group or of the impact of certain aspects of those imports on the determination of injury. Regarding the comments relating to imports from Belarus, it should be recalled that, for the reasons set out in paragraphs 171 to 175 above, they are not relevant for the purpose of determining whether the regulation that the Council was at that time proposing to adopt should, or should not, have led to a finding that a recurrence of injury was likely.

216    In compliance with the case-law cited in paragraphs 211 and 212 above, it must be held that the evidence provided in response to the definitive disclosure does not constitute important information liable to have placed the Anti-Dumping Advisory Committee in a position in which it was unable to give its opinion in full knowledge of the facts because of the short time available to examine it. The consultation of the Committee is therefore not vitiated by illegality.

217    Finally, while it is true that the hearing of the applicants by the Hearing Officer was held after the meeting of the Anti-Dumping Committee, that circumstance is not, in the present case, such as to have placed the Anti-Dumping Advisory Committee in a position in which it was unable to give its opinion in full knowledge of the facts, since it is apparent from the minutes of the hearing, prepared by the Hearing Officer and not disputed by the applicants, that no new argument was raised by them at the hearing.

218    It follows that the third part of the fourth plea in law must be rejected, and, accordingly, the plea must be rejected in its entirety.

219    It follows from all of the foregoing that the action must be dismissed.

 Costs

220    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Council.

221    Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions and Member States intervening in the proceedings are to bear their own costs. The Commission must therefore be ordered to bear its own costs in the present case.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Volžskij trubnyi zavod OAO (VTZ OAO), Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), Sinarskij trubnyj zavod OAO (SinTZ OAO) and Severskij trubnyj zavod OAO (STZ OAO) to bear their own costs and to pay those incurred by the Council of the European Union;

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

Dittrich Schwarcz Tomljenović

Delivered in open court in Luxembourg on 30 April 2015.

[Signatures]

* Language of the case: English.