JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
29 April 2015 (*)
(Dumping — Imports of certain iron or steel fasteners originating in China — Amendment of the regulation imposing a definitive anti-dumping duty — Article 2(10) and (11) of Regulation No 1225/2009 — Calculation of the dumping margin — Adjustments — Obligation to state reasons)
In Joined Cases T‑558/12 and T‑559/12,
Changshu City Standard Parts Factory, established in Changshu City (China),
Ningbo Jinding Fastener Co. Ltd, established in Ningbo (China),
represented by R. Antonini and E. Monard, lawyers,
applicants,
v
Council of the European Union, represented by S. Boelaert, acting as Agent, assisted initially by G. Berrich and A. Polcyn, subsequently by A. Polcyn and finally by D. Geradin, lawyers,
defendant,
supported by
European Commission, represented by M. França and T. Maxian Rusche, acting as Agents,
and by
European Industrial Fasteners Institute AISBL (EIFI), represented by J. Bourgeois and R. Grasso, lawyers,
interveners,
ACTIONS for annulment of Council Implementing Regulation (EU) No 924/2012 of 4 October 2012, amending Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China (OJ 2009 L 275, p. 1),
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek (Rapporteur), President, I. Labucka and V. Kreuschitz, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 11 June 2014,
gives the following
Judgment
Background to the disputes
1 The applicant in Case T‑558/12, Changshu City Standard Parts Factory, and the applicant in Case T‑559/12, Ningbo Jinding Fastener Co. Ltd, (together ‘the applicants’) are companies established in China which manufacture certain iron or steel fasteners for sale on the national market or for export, in particular, to the European Union.
2 By Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1) (‘the original regulation’), the Council of the European Union imposed a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in China.
3 On 28 July 2011, the Dispute Settlement Body (‘DSB’) of the World Trade Organisation (WTO) adopted the Appellate Body Report and the Panel Report as modified by the Appellate Body Report in the dispute ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’. In those reports, it was found that the EU had infringed a certain number of provisions of WTO law.
4 On 6 March 2012, in accordance with Council Regulation (EC) No 1515/2001 of 23 July 2001 on the measures that may be taken by the Community following a report adopted by the WTO DSB concerning anti-dumping and anti-subsidy matters (OJ 2001 L 201, p. 10), the European Commission published a notice regarding the anti-dumping measures in force on imports of certain iron or steel fasteners originating in the People’s Republic of China, following the recommendations and rulings adopted by the DSB of the WTO on 28 July 2011 in the EC — Fasteners dispute (DS397) (OJ 2012 C 66, p. 29).
5 The purpose of the notice published by the Commission was to initiate a review of the anti-dumping measures on the basis of Regulation No 1515/2001 and to inform the interested parties of the manner in which the above conclusions would be taken into account in respect of the existing measures on imports of certain iron or steel fasteners originating in China, instituted by the original regulation. The investigation covered the period from 1 October 2006 to 30 September 2007.
6 On 30 May 2012, the Commission disclosed additional information to all interested parties regarding the product types used for the purposes of comparing normal value and export price.
7 On 13 June 2012, the applicants submitted their observations on that additional information which included, inter alia, requests for adjustments.
8 By letter of 25 June 2012, the applicants submitted additional observations in which they supplemented their requests for adjustments with a pricing analysis.
9 On 5 July 2012, following requests for additional information made by some of the interested parties, the Commission sent all the interested parties a second information document.
10 On 10 July 2012, the applicants sent the Commission requests for further information and clarifications.
11 On 11 July 2012, the Commission disclosed information on a reclassification of the normal value and a proposed recalculation of the dumping margins, and requested comments.
12 By letter of 19 July 2012, the applicants submitted additional comments.
13 On 31 July 2012, the Commission sent to the applicant a general disclosure document and a specific disclosure document.
14 By letter of 14 August 2012, the applicants submitted observations on those disclosure documents.
15 On 4 October 2012, the Council adopted Implementing Regulation (EU) No 924/2012 amending the original regulation (OJ 2012 L 275, p. 1), (‘the contested regulation’).
16 Article 1 of the contested regulation reduced the anti-dumping duty imposed by the original regulation on imports of certain iron or steel fasteners, other than stainless steel fasteners, imported by Changshu City Standard Parts Factory into the EU to 38.3% and maintained the duty established in respect of the products concerned imported by Ningbo Jinding Fastener at 64.3%.
Procedure and forms of order sought
17 By application lodged at the Court Registry on 24 December 2012, the applicants brought the present actions.
18 By separate documents lodged at the Court Registry on the same day, the applicants also made an application for an expedited procedure under Article 76a of the Rules of Procedure of the General Court. On 17 January 2013, the Council presented its observations regarding those requests.
19 By decision of 5 February 2013, the Court (Seventh Chamber) dismissed the application for an expedited procedure.
20 By documents lodged at the Court Registry on 27 March 2013, the Commission and European Industrial Fasteners Institute AISBL (EIFI) sought leave to intervene in the present action in support of the form of order sought by the Council.
21 In its observations of 29 April 2013, the Council raised no objection to the intervention of EIFI. The applicants lodged no observations.
22 By orders of 11 June 2013, the President of the Seventh Chamber of the General Court granted the Commission and EIFI leave to intervene. The interveners submitted their statements in intervention within the periods prescribed.
23 After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was, consequently, assigned.
24 By order of 6 May 2014 of the President of the Fourth Chamber of the Court, after the views of the parties were heard at the hearing, Cases T‑558/12 and T‑559/12 were joined for the purposes of the oral procedure and the decision closing the proceedings, in accordance with Article 50 of the Rules of Procedure.
25 The applicants claim that the Court should:
– annul the contested regulation in so far as it imposes a definitive anti-dumping duty on them;
– order the Council to pay the costs.
26 The Council contends that the Court should:
– dismiss the actions as being partly inadmissible and, in any event, unfounded;
– order the applicants to pay the costs.
27 The Commission and EIFI contend that the Court should:
– dismiss the actions as unfounded;
– order the applicants to pay the costs, including those incurred by the Commission and EIFI owing to their intervention.
Law
28 In support of their actions the applicants advance two pleas in law. By their first plea, they allege infringement of Article 2(7)(a), (8), (9) and (11) and Article 9(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010, L 7, p. 22) (‘the basic regulation’) and of the principle of non-discrimination and of Article 2.4.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’) set out in Annex 1A of the Agreement establishing the WTO (OJ 1994 L 336, p. 3). By their second plea, they allege infringement of Article 2(10) of the basic regulation and Article 2.4 of the Anti-Dumping Agreement. In the alternative, they argue that the Council infringed Article 296 TFEU.
First plea in law: infringement of Article 2(7)(a), (8), (9) and (11) and Article 9(5) of the basic regulation, and of the principle of non-discrimination and of Article 2.4.2 of the Anti-Dumping Agreement
29 The applicants claim that the contested regulation must be annulled because of the way in which the Council and the Commission (together ‘the institutions’) calculated the dumping margin, that is to say, by comparing, with the normal value, export prices solely of types of products manufactured and exported by the applicants for which the sale price of the producers in the analogue country, that is to say India, was available. Respectively, 38% and 43% of the applicants’ export sales were thus excluded from the calculation of the dumping margin.
30 That approach allegedly contravened, inter alia, Article 2(11) of the basic regulation read, in particular, in the light of paragraphs 7(a), 8 and 9, and Article 9(5) of that regulation, and the principle of non-discrimination. The contested regulation infringes all those provisions and that principle, and Article 2.4.2 of the Anti-Dumping Agreement.
31 The Council, supported by the Commission and EIFI, argues that the EU institutions are under an obligation to compare the normal value with all comparable exports, that that obligation falls within the framework of a general obligation to make a ‘fair comparison’ and that the solution adopted in this case was fair and reasonable.
32 Article 2(11) of the basic regulation, entitled ‘Dumping margin’, provides the following:
‘Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Community, or by a comparison of individual normal values and individual export prices to the Community on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Community, if there is a pattern of export prices which differs significantly among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. …’
33 That article transposes Article 2.4.2 of the Anti-Dumping Agreement into EU law.
34 It is common ground that the Council adopted the basic regulation in order to satisfy its international obligations arising from the Anti-Dumping Agreement and that, by means of Article 2(11) of that regulation, it intended to implement the particular obligations laid down by Article 2.4.2 of that agreement. To that extent, it is for the EU Courts to review the legality of the measure in question in the light of that provision (see, to that effect, judgment of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, ECR, EU:C:2003:4, paragraph 56).
35 Furthermore, it should be recalled that EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union (judgment in Petrotub and Republica v Council, cited in paragraph 34 above, EU:C:2003:4, paragraph 57).
36 Article 2.4.2 of the Anti-Dumping Agreement is worded as follows:
‘Subject to the provisions governing fair comparison in paragraph 4, the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions …’.
37 It is clear, therefore, that, unlike Article 2.4.2 of the Anti-Dumping Agreement, Article 2(11) of the basic regulation refers to the price of all exports, and not all comparable exports. Since that article has to be interpreted in the light of the corresponding article of the Anti-Dumping Agreement (see paragraph 35 above), it must be read as referring to all comparable exports or, in accordance with the terminology of the latter article, to ‘all comparable export transactions’ (see, to that effect, judgment of 27 September 2007 in Ikea Wholesale, C‑351/04, ECR, EU:C:2007:547, paragraph 56).
38 With regard to the reference to the relevant provisions governing fair comparison in Article 2(11) of the basic regulation, paragraph 10 of that article, entitled ‘Comparison’ provides that ‘[a] fair comparison shall be made between the export price and the normal value’ and that ‘[w]here the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability’. Thus, in order to ensure a fair comparison, paragraph 10 requires the EU institutions to determine the comparability of the prices for the purposes of Article 1(2) of the basic regulation by the adjustment method.
39 Those provisions follow the rationale of the Anti-Dumping Agreement, Article 2.4.2 of which has the following introductory wording: ‘[s]ubject to the provisions governing fair comparison in paragraph 4’. Likewise, Article 2.4 of that agreement provides that ‘[a] fair comparison shall be made between the export price and the normal value’ and that ‘[d]ue allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability’.
40 In the present case, the institutions chose to make a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the EU (‘the first symmetrical method’) (recital 105 of the contested regulation). In view of the matters set out in the preceding paragraphs, that provision must be understood as requiring the institutions of the EU to compare with the normal value only those transactions which are comparable with it, but that all such comparable transactions are to be compared. To that end, the institutions, where possible, had to make the transactions comparable by making adjustments.
41 Given that the applicants did not receive market economy treatment, the normal value was determined in accordance with Article 2(7)(a) of the basic regulation on the basis of prices in the analogue country (recitals 29 and 31 of the contested regulation). Furthermore, considering the conditions of competition and openness of the Indian market, and the fact that the cooperating Indian producer sold product types comparable to those exported by the exporting producers from China, it was concluded that India was a suitable market economy third country within the meaning of Article 2(7) of the basic regulation (recital 31 of the contested regulation). In the context of the present proceedings, the applicants do not contest that choice.
42 Even if the cooperating Indian producer sold product types comparable to those exported by China, it was found, at the comparison stage, that the Indian producer did not produce and did not sell all the product types concerned that were exported by the Chinese exporting producers. The appellants do not contest that fact.
43 In those circumstances, the contested regulation provides the following:
‘A comparison between export price and normal value was made on a weighted average basis only for those types exported by the Chinese exporting producer for which a matching type was produced and sold by the Indian producer. This was considered [by the institutions] to be the most reliable basis for establishing the level of dumping, if any, of this exporting producer; to attempt to match all other exported types to closely resembling types of the Indian producer would [in the institutions’ opinion] have resulted in inaccurate findings. On this basis, [the institutions considered it] correct to express the amount of dumping found as a percentage of those export transactions used in calculating the amount of dumping — this finding [was] considered to be representative for all types exported. The same approach was used in calculating the dumping margins of the other exporting producers’ (recital 109 of the contested regulation).
44 Certain types of the product concerned, exported to the EU and covered by the investigation, were therefore excluded from the comparison when the dumping margin was determined.
45 The institutions justified that choice by relying, inter alia, on Article 2.4.2 of the Anti-Dumping Agreement. In recital 102 of the contested regulation, they stated that that approach was ‘in full compliance with Article 2.4.2 of the WTO Anti-Dumping Agreement, which refers to comparable export transactions’, that ‘[i]n this case, all comparable transactions (by product types) [had] been used for the comparison’, and that is the reason why ‘it [had] been reasonable [in their opinion] to express the amount of dumping found as a percentage of those export transactions used in calculating the amount of dumping.’ Furthermore, they stated that ‘for all the sampled Chinese exporting producers, significant matching between the domestic sales and exports sales [had been] found so as to arrive at a fair representation of the sales made by the different parties’ (recital 82 of the contested regulation).
46 In that regard, it must be stated that, in the area of trade defence measures, the EU institutions have a broad discretion due to the complexity of the economic situations which they have to examine (see judgment of 16 December 2011 in Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09, ECR, EU:T:2011:764, paragraph 40 and the case-law cited).
47 The implementation by the EU institutions of the provisions of Article 2(11) of the basic regulation entails complex economic assessments on the part of those institutions (judgment of 24 October 2006 in Ritek and Prodisc Technology v Council, T‑274/02, ECR, EU:T:2006:332, paragraph 82). In particular, the broad discretion of the EU institutions extends, in principle, to appraisal of the facts relied on to demonstrate the fairness of the comparison made, the concept of fairness being vague in character and needing to be specifically defined by the EU institutions in each individual case having regard to the relevant economic context (judgment in Dashiqiao Sanqiang Refractory Materials v Council, cited in paragraph 46 above, EU:T:2011:764, paragraph 41).
48 It follows that review by the Court of such assessments by the EU institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power (see judgment of 28 October 2004 in Shanghai Teraoka Electronic v Council, T‑35/01, ECR, EU:T:2004:317, paragraph 49 and the case-law cited).
49 The Court must examine, on the basis of those considerations, whether, in the present case, by excluding from the comparison those transactions which did not have a match in India, the institutions committed a manifest error of assessment with regard to EU law when determining the dumping margin.
50 To that end, it is necessary to consider briefly the facts which led the institutions to make such a determination in the present case, set out in the contested regulation, in particular in recitals 82, 85, 87, 92, 95, 102, 105 and 109.
51 On 30 May 2012, the Commission disclosed to all the interested parties information regarding the product types used for the purposes of comparing normal value and export price. At that stage, as was the case with the initial regulation, the Commission considered only two criteria in order to distinguish between the different types of fasteners. The Indian domestic sales were divided into sales of ‘standard’ and ‘special’ fasteners, and both those categories were subdivided into different strength classes. A normal value per kilogramme was calculated for each product type which had been defined in that manner by the variables entitled ‘standard/special’ and ‘strength’.
52 On 13 June 2012, the applicants submitted their observations on that information. In particular, they asked the Commission to take into account the differences in the physical characteristics of the products, such as length, diameter, coating and the use of chrome in the coating, and to make adjustments to that effect.
53 On 25 June 2012, the applicants submitted additional observations, and again requested adjustments for the different coating types, the use of chrome in the coating, the diameter and the length.
54 On 5 July, the Commission submitted an information note in which it proposed to take the applicants’ suggestions partially into account. It introduced additional criteria for defining product types, that is to say, coating, diameter and length. In that context, the Commission proposed to base normal value on electro-plated fasteners (coating type ‘A’) and, in that respect, stated the following:
‘The Commission proposes to consider that the normal value falls under coating type ‘A’ and therefore compares the normal value … with coating type A for exported models.
Where an exporter does not have exports of A coated fasteners, the Commission can use the coating type closest to type A for those exports, to compare them to the A coated normal value.
Fasteners that fall outside these two paragraphs above would not be used to calculate the dumping margin for the company concerned.’
55 Furthermore, with regard to the diameter and the length used, the Commission divided the fasteners into three ranges: small, medium and large. It proposed to use those data to refine further the normal value and calculate dumping margins on that basis. The Commission also stated that ‘[w]here exported fasteners [did] not fall into these ranges they [were] not … used in the dumping calculation [and that] affect[ed] only a very small amount of exports’.
56 Finally, the Commission presented a summary of the new product types which it intended to distinguish.
57 The applicants responded to that information note first of all by the letter of 10 July 2012 in which they summarised the export transactions that would be excluded from the comparison and requested confirmation from the Commission that it had correctly understood the scope of the transactions that would be excluded.
58 Next, by letter of 19 July 2012, the applicants challenged the approach suggested by the Commission in so far as it failed to take into account all the export transactions. According to the applicants, in order to comply with Article 2(11) of the basic regulation, the institutions had two options: they could either limit the scope of their investigation to the product types for which there were sales in the analogue country, or they would be obliged to take into account all the applicants’ export transactions, and assume that, for the product types for which there were no sales in the analogue country, the dumping margin was zero or even negative. The applicants also made a further request for the introduction of additional product types.
59 On 31 July 2012, the Commission sent to the parties the general disclosure document pursuant to Article 20(2) to (5) of the basic regulation.
60 Having regard to the foregoing, it is clear that, following the observations and proposals of the parties, including the applicants, the institutions carried out an increasingly differentiated classification of the product concerned. Taking that differentiation into account, they also adjusted the normal value used to determine the dumping margins (see, inter alia, recitals 95, 96 and 102 of the contested regulation). The institutions decided to compare the export price with that normal value by the product type thus defined, whilst excluding from the comparison export transactions for product types which were not manufactured and sold in India. It must therefore be stated that, although initially the comparison could have been more precise, the amount of dumping thus determined was then extended to cover all product types concerned.
61 It is necessary to examine whether such an approach is possible on the basis of Article 2(11) of the basic regulation and Article 2.4.2 of the Anti-Dumping Agreement which provide, first, that the EU institutions must take into account the prices of all export transactions which are comparable with the normal value, and which, secondly, refer to the relevant provisions governing fair comparison. In that context, it is necessary to examine in particular the interpretation of the terms ‘comparable prices’ and ‘fair comparison’, whilst noting that the articles concerned do not require the comparison to be ‘the most fair’, but only that it be ‘fair’.
62 First, with regard to the term ‘comparable prices’, the applicants claim that the rulings of the WTO bodies have confirmed that the fact that products manufactured in China and exported to the EU and those manufactured by the Indian producer were found to be similar made those products by definition comparable, and that consequently the institutions should have taken into account all such products, regardless of their classification type.
63 In the present case, the normal value was calculated on the basis of the prices in the analogue country, and it became apparent, following the differentiation of the product types concerned, that the Indian producer providing data for that calculation could not give the prices of some of the types thus differentiated, since it did not produce them and did not sell them. It must thus be observed that, although the different product types concerned which could all be regarded as a ‘similar’ product could certainly be regarded as comparable, that was not automatically the case for the prices of some of those types, which were not manufactured or sold by the Indian producer. The absence of the prices of some of those types, despite their similarity, prevented that comparison from being made.
64 Accordingly, the applicants’ argument cannot be accepted. Furthermore, the decisions taken in that regard by the WTO bodies, to which the applicants refer, cannot call that conclusion into question (see paragraphs 86 to 89 below).
65 Secondly, as regards ‘fair comparison’, Article 2(10) of the basic regulation requires the EU institutions to take due account of the differences affecting the comparability of prices. During the administrative procedure and in the present proceedings, the applicants relied on a number of options which, in their opinion, would have enabled the institutions to calculate the normal value of the product types not sold by the Indian producer, which would have made it possible to take account of all the transactions for the product concerned. Thus, during the administrative procedure, but not in the present proceedings, they suggested either limiting the scope of the investigations by narrowing the definition of the product range to the product types sold in the analogue country, or taking into account all the export transactions made by them, on the basis that, for the product types not sold in the analogue country, the dumping margin was zero or even negative (see paragraph 58 above).
66 Conversely, the applicants claimed, only before the Court, that the institutions should either have used the adjustment method, or partially constructed the prices or resorted to any other reasonable method in order to determine the normal value.
67 Without it being necessary to consider the admissibility of those arguments, it is appropriate to examine whether the institutions should, subject to the requirement for a fair comparison, have made use of one of those methods laid down in the basic regulation in order to obtain the normal value for product types which did not have a match with the Indian producer, which would have enabled them to take into account the prices of all the export transactions when making the comparison, and thus satisfy the letter of Article 2(11) of that regulation.
68 First, with regard to ‘any other reasonable basis’ for determining the normal value in accordance with Article 2(7)(a) of the basic regulation, it must be noted that once the institutions had chosen one of the two priority methods laid down in that article for the determination of the normal value (see, to that effect, judgment of 22 March 2012 in GLS, C‑338/10, ECR, EU:C:2012:158, paragraphs 24 and 25), they could not then ‘supplement’ that method using the method of determination ‘on any other reasonable basis’.
69 The discretion enjoyed by the EU institutions in the choice of an analogue country does not authorise them to disregard the requirement to choose a market economy third country where such a choice is possible. Thus, they may choose not to apply the general rule set out in Article 2(7)(a) of the basic regulation for the determination of the normal value of products originating in non-market economy countries, using some other reasonable basis, only when it is impossible to apply that general rule (judgment in GLS, cited in paragraph 68 above, EU:C:2012:158, paragraph 26). The option put forward by the applicants would require a previous finding that India was not an appropriate analogue country. As the Council maintains, the prices of the cooperating Indian producer were available for most of the product prices and no interested party, above all the applicants, claimed that those prices were not reliable.
70 On the other hand, secondly, since the institutions chose the method for the determination of the normal value on the basis of the price or constructed value in the analogue country, in principle they could have constructed the values for the missing product types. In that respect, Article 2(3) of the basic regulation provides that the normal value may be ‘constructed’ on the basis of either the production cost (in the country of origin), or the export prices. In the present case, the cooperating Indian producer did not produce and therefore did not sell or export those product types. At the hearing, the Commission stated, in particular, that it did not have at its disposal a breakdown of the Indian producer’s production costs which would have enabled it make such a construction. It must also be noted that the applicants do not claim that the institutions could have partially constructed the normal value on the basis of other data which it may have had at its disposal. Therefore, it must be found, as the Council, supported by the Commission, claims, that the institutions did not have at their disposal data enabling them to calculate the normal value for those product types.
71 Nor can the applicants’ argument based on the institutions’ past practice be accepted. As was noted in paragraphs 41 to 47 above, it is for the institutions of the European Union, in exercising their discretion on the basis of Article 2(10) of the basic regulation, to make a fair comparison between the normal value and the export price, using for that purpose one of the methods laid down in Article 2(11) of that regulation. That discretion must be exercised on a case-by-case basis, by reference to all the relevant facts (see, to that effect, judgments of 14 March 1990 in Gestetner Holdings v Council and Commission, C‑156/87, ECR, EU:C:1990:116, paragraph 43, and of 17 December 2010 in EWRIA and Others v Commission, T‑369/08, ECR, EU:T:2010:549, paragraph 93). In the present case, it is clear from the analysis in the preceding paragraphs that the institutions could reasonably consider that having recourse, at such a late stage in the investigation, to another potential method for determining the normal value for the missing products types would not have ensured a more accurate or a fairer comparison of the normal value with comparable export prices than the one which was made.
72 Thirdly, it is necessary to examine whether, if they had made adjustments, the institutions could have obtained valid values for the product types which did not have a match with the Indian producer. In that respect, it must be noted that the differences found, and which led to the differentiation of the product concerned, were in particular physical, and that Article 2(10) of the basic regulation makes express provision for adjustments of prices as a result of physical differences in the products.
73 It is clear from the Court file that the applicants had, first of all, requested adjustments on the basis of physical differences in the products (see paragraphs 52 and 53 above) but that, in reply, the Commission chose instead the method of differentiating products by type. According to the Commission, that approach made it possible to take into account, as far as possible, all the different types of the product concerned and thus to satisfy the applicants’ requests.
74 The institutions state that they considered that the method thus applied was fair. If the applicants considered that additional adjustments were necessary for that purpose, they should have asked for them during the administrative procedure and provided evidence to that effect. In the absence of that evidence, such adjustments would necessarily have been arbitrary, since the institutions were not in possession of the Indian producer’s data enabling them to make an exact calculation.
75 In that respect, it must be stated that, in order to make a fair comparison, the institutions themselves could have found that it was appropriate to make adjustments of the prices enabling them to compare a greater number, or indeed all, of the product types. Accordingly, the case-law has established that the burden of proving the need for the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation lies with those who wish to rely on them, irrespective of who they are (see, to that effect, judgment of 16 February 2012, Council v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, ECR, EU:C:2012:78, paragraph 60).
76 In the present case, adjusting the prices of product types which were not manufactured or sold by the Indian producer would have involved constructing prices on the basis of the price of another product type and the existing price difference. In accordance with Article 2(10)(a) of the basic regulation ‘[t]he amount of the adjustment shall correspond to a reasonable estimate of the market value of the difference’.
77 However, in recital 109 of the contested regulation, the Council stated that ‘to attempt to match all [types exported by the applicants for which a matching type was not produced and sold by the Indian producer] to closely resembling types of [that] producer would have resulted in inaccurate findings’.
78 It cannot be said that the institutions committed a manifest error of assessment in that regard. They complied with the applicants’ request that account be taken of the differences in the physical characteristics of the products in the following manner: instead of simply making adjustments, given that they only had at their disposal data provided by a sole producer in India and that that producer had not provided them with a breakdown of the prices, the institutions differentiated those products by type, whilst making some adjustments of the normal value which proved to be necessary and possible as a result of that differentiation (see paragraph 60 above). The institutions considered that they had thus responded adequately and fairly to the applicants’ request.
79 In that respect, it must be noted that, after having been informed during the administrative procedure of the exclusion of certain product types, the applicants did not request an adjustment which might have prevented that exclusion, but instead they merely proposed other methods for determining the normal value of the non-matching product types (see paragraph 58 above) and requested adjustments on the basis of other specific differences, the latter requests being the subject of the second plea in law. It is clear from this that the applicants were not able to provide the institutions with any relevant information in respect of adjustments relating to physical characteristics. On the other hand, the fact that the applicants had initially requested that the physical differences of the products be taken into consideration and that the institutions had agreed to that approach shows that those differences were sufficiently concrete and significant.
80 At the hearing, the institutions accepted that they could have relied on data available from European industry in order to make such adjustments. It must be stated that that would involve adjusting the Indian price of an available product type by an estimate of the European market value of the difference compared with another type. The Court finds that, in circumstances where such a calculation presented a genuine risk of inaccuracy, and where the applicants had not made a request for additional adjustments to that effect, the institutions could conclude, without committing any manifest error of assessment, that the approach which they had proposed was fair, in particular given the purpose of the differentiation of the product concerned, which was to determine more precisely the dumping margin (see also paragraph 71 above).
81 Fourthly the institutions considered that ‘for all the sampled Chinese exporting producers, significant matching between the domestic sales and exports sales [had been] found so as to arrive at a fair representation of the sales made by the different parties’ and that ‘[that had been] considered to be the most reliable basis for establishing the level of dumping’ (see recitals 82 and 109 of the contested regulation and paragraph 45 above). At the hearing, they stated that, for the five most sold product types, the matching was 80%. Consequently, the amount of dumping thus obtained and found as a percentage of those export transactions was then considered to be representative of all the exported types and was applied to all of those types (recital 109 of the contested regulation).
82 The applicants claim that the approach adopted by the institutions in the contested regulation is not representative, fair, or the most reliable. They state that 38% and 43% respectively of their export sales had thus been excluded from the calculation of the dumping margin. The institutions simply assumed that the excluded export transactions were made at dumped prices and more particularly at the dumping margin found for the other transactions. Furthermore the institutions did not in any way demonstrate that the approach adopted was reliable.
83 Those arguments must be dismissed. First, it is clear from the contested regulation that the same approach was applied to all the exporting producers and that the overall amount of dumping calculated was then applied to all the product types concerned, whether the individual dumping margin calculated for those types was positive or negative. In that regard, the applicants do not put forward any evidence to show that, contrary to what is stated in recital 82 of the contested regulation, the matching between domestic sales and export sales for all the exporting producers was not significant. Secondly, it must be stated that the applicants, who merely rely on percentages of their products which had thus been excluded, provide no evidence to demonstrate the incorrectness of the institutions’ finding that the amount of dumping established as a percentage of the export transactions used to calculate that amount was representative of all the types exported. In particular, the applicants do not claim that, as regards their situation, the institutions excluded from the comparison (a category of) the product types concerned for which the amount of dumping was considerably different, if not non-existent, and that, as a consequence, the amount calculated for the product types with a matching type in India could not be regarded as representative of the other types exported by them. More generally, the applicants do not claim that, by taking into consideration all the product types, the dumping margin calculated would have been substantially different from the one defined in the contested regulation.
84 It follows from the foregoing that, in the present case, even if they were found to be feasible, the different methods examined, by which the normal value for all the product types concerned might be determined, would not have ensured a fairer comparison than the one made by the institutions.
85 On the basis of those considerations, it must also be stated that the approach adopted in Ikea Wholesale, cited in paragraph 37 above (EU:C:2007:547), to which all the parties refer, does not apply to the present case. In that judgment, the Court of Justice made a ruling on the legality of the practice of ‘zeroing’ negative dumping margins used to establish the overall dumping margin. The Court found, in particular, that that practice amounted to ‘modifying the price of the export transactions [and that] by using that method the Council [had] not calculated the overall dumping margin by basing its calculation on comparisons which fully reflect[ed] all the comparable export prices and [had] therefore … committed a manifest error of assessment with regard to [EU] law’. In the present case, it cannot be considered that the dumping margin was not calculated on the basis of a significant representation of the product types concerned which thus did not reflect all the comparable export prices.
86 Similarly, with regard to the report of the WTO Appellate Body entitled ‘European Communities — Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India’ (DS141/AB/R), to which the applicants refer (see paragraph 62 above), and without even needing to decide whether the Court is bound by the recommendations and decisions contained in the reports of the WTO Appellate Body, the Court considers that the applicants’ are wrong in arguing that the solution applied in that report is also applicable to the present case.
87 In that report, the WTO Appellate Body’s reasoning for condemning ‘zeroing’ between models in the first symmetrical method was based essentially on the wording in the part of Article 2.4.2 of the Anti-Dumping Agreement relating to that first method. Thus, in paragraph 55 of that report, the Appellate Body stated that,‘[u]nder this method, the investigating authorities are required to compare the weighted average normal value with the weighted average of prices of all comparable export transactions’, and expressly emphasised the word ‘all’. Furthermore in paragraph 58 of the report the Appellate Body stated that: ‘[a]ll types or models falling within the scope of a “like” product must necessarily be “comparable”, and export transactions involving those types or models must therefore be considered “comparable export transactions” within the meaning of Article 2.4.2’ It concluded that that zeroing did not allow the price of all the export transactions to be properly reflected, and that it was not applicable in the context of the first symmetrical method.
88 However, as was noted in paragraph 85 above, the present case does not concern the specific issue of zeroing, by which, when the comparison was being made, the entire category of types for which a negative dumping margin had been found was disregarded. Therefore it cannot be stated, as the Appellate Body finds in paragraph 55 of that report, that the approach of the institutions in the present case had the effect of inflating the result of the calculation of the dumping margin.
89 Moreover, with regard to the comparable nature of the prices, the Court notes that, unlike the case giving rise to the report of the WTO Appellate Body entitled ‘European Communities — Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India’ (DS141/AB/R), the particular feature of the present case is that the normal value calculated in the analogue country was used. In that context, even if the analogue country was chosen because the product sold there is similar, and therefore comparable, to the product concerned by the investigation, the obligation to make a fair comparison of the prices of those products may involve additional difficulties for the institutions (see paragraph 63 above).
90 Having regard to all of the foregoing, it must be concluded that the Council did not commit a manifest error of assessment by excluding from the calculation of the dumping margin the types of products manufactured and exported by the applicants for which the producer’s sale prices in the analogue country were not available. Therefore, the contested regulation does not infringe Article 2(11) of the basic regulation or Article 2.4.2 of the Anti-Dumping Agreement.
91 Similarly, no infringement of the other articles of the basic regulation, relied on by the applicants, can be found. According to the applicants, by excluding some of their export transactions, the export price used for calculating the dumping margin was not the ‘price actually paid or payable’ for the product when it is sold for export to the EU. The institutions therefore infringed Article 2(8) and (9) of the basic regulation, which does not state that the ‘price actually paid or payable’ may be disregarded in a situation such as the one in the present case. Furthermore, they state, it is for the institutions to determine the normal value, if necessary on any reasonable basis, in accordance with Article 2(7)(a) of the basic regulation.
92 Those articles concern the determination of the normal value and the export price, and not the comparison between them for the calculation of the dumping margin. Those operations constitute three separate stages of the investigation. The institutions could not have infringed those articles when calculating the dumping margin in accordance with Article 2(11) of that regulation. Furthermore, although Article 2(11) of the basic regulation refers to the price of all exports, Article 2(8) merely specifies which price must be used for the purposes of determining the export price and does not expressly require that the export price be determined for each of the types or models of the product concerned. The same is true in respect of the determination of the normal value calculated in accordance with Article 2(7)(a) of that regulation. The applicants do not claim that a price other than the one ‘actually paid or payable for the product when sold for export to the Community’ was taken into consideration in the calculation, or that the normal value was determined on the basis of a price in a country other than the ‘market economy third country’.
93 According to the applicants, by excluding certain export transactions from the calculation, the institutions infringed Article 9(5) of the basic regulation which provides that the anti-dumping duties must be imposed ‘on a non-discriminatory basis’, in accordance with the general principle of equality and non-discrimination. The contested regulation treats differently Chinese exporting producers which are in a similar situation, because their dumping margins are based on a percentage that is different from their export transactions, without that difference in treatment being justified on objective grounds.
94 That claim must also be rejected. It should be noted that, in a situation in which the dumping margin is calculated separately for different exporting producers, this must be done by taking into consideration the specific situations of those producers. That is indeed the reason why producers apply for individual treatment. However, with regard to the treatment given in the present case, the institutions applied exactly the same method to all the Chinese exporters: they used the same product type classifications and they took into consideration, when calculating the dumping margin, only the export transactions relating to product types for which they had found matching normal values.
95 Consequently, the first plea in law must be rejected.
Second plea in law: infringement of Article 2(10) of the basic regulation and Article 2.4 of the Anti-Dumping Agreement
96 The applicants claim that the institutions infringed Article 2(10) of the basic regulation and Article 2.4 of the Anti-Dumping Agreement by rejecting their requests for adjustments. In the alternative, the applicants allege a breach of the duty to state reasons set out in Article 296 TFEU in that the contested regulation fails to state the reasons why the institutions had refused to make the adjustments requested.
First complaint: infringement of Article 2(10) of the basic regulation and Article 2.4 of the Anti-Dumping Agreement
97 The applicants dispute the refusal of a number of the requests for adjustments which they had made in their observations, in particular of 13 June, 19 July, and 14 August 2012. This concerns, inter alia, the refusal to make (i) the adjustment for access to raw materials, which was easier for the applicants than for the Indian producer, (ii) the adjustment for additional production processes carried out by the Indian producer, and (iii) the adjustment for differences between the applicants and the Indian producer in terms of efficiency and employee productivity.
98 With regard to the first adjustment requested, the applicants argue that, while they did not import any of the raw materials, the Indian producer imported from abroad 80% of its raw material (wire rod) during the investigation period. It follows that the Indian producer incurred additional costs such as those related to freight, port expenses and customs duties, which were reflected in its prices. With regard to the second adjustment, they claim that the Indian producer was generating its own electricity, which resulted in significant additional costs compared with the applicants, which bought their electricity. Finally, with regard to the third adjustment, the applicants submit that during the investigation period, the Indian producer’s efficiency in terms of consumption of raw materials (wire rod) was significantly lower than theirs. In addition, the Indian producer’s power consumption per unit produced was significantly higher than their own, while the Indian producer’s productivity per employee was well below that of the applicants. According to the applicants, all those additional costs were reflected in the Indian producer’s prices.
99 Those requests for adjustments were refused for the reasons set out in recitals 41 and 103 as follows:
‘(41) [… t]hese parties repeated their claim that adjustments should be made to take into account the differences in cost of production such as differences in efficiency of consumption of the raw material; differences in wire rod consumption; in electricity consumption, in self-generated electricity, in productivity per employee, in reasonable profit level and in differences related to tooling. As stated above, Article 2(10) of the basic Regulation is referring to price and not cost. There was no evidence adduced by these parties that the alleged differences in cost translated into differences in prices. In investigations concerning economies in transition such as China, an analogue country is used when warranted to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of market forces. Thus, for the purpose of establishing the normal value, a surrogate of the costs and prices of producers in functioning market economies is used. Therefore, these claims for adjustments taking into account the differences in cost of production are rejected.
…
(103) Following the general disclosure, two Chinese exporting producers reiterated that adjustments should be made for alleged differences in efficiency of consumption of the raw material and easier access to raw material, more efficient electricity consumption and lower productivity per employee. It is recalled that none of the Chinese exporting producers received MET in the original investigation and their cost structure cannot be considered as reflecting market values that can be used as a basis for adjustments in particular with regard to access to raw materials. In addition, it should be noted that the production processes existing in [China] were found to be comparable to the Indian producer’s and the alleged differences were found to be very minor. In this case, the Indian producer was found to be competing with many other producers on the Indian domestic market, it is considered that its prices were fully reflecting the situation in the domestic market. As mentioned in recital 41 …, a surrogate of the costs and prices of producers in functioning market economies had to be used for the purpose of establishing the normal value.’
100 In that regard, the Council states that the institutions refused to make adjustments for alleged differences in production costs, because the applicants failed to prove that the differences in costs translated into differences in prices. In addition, adjustments for differences in efficiency and productivity were also rejected because, in a case such as the present, where the normal value was determined by the analogue country method, the institutions did not adjust the prices of the analogue country in order to take into account the use of factors of production in non-market economy countries, given that those factors are not considered the normal result of market forces. At the hearing, the Council stated that the two reasons were related.
101 It must also be noted that, in accordance with the case-law, it is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may be made only in order to take account of differences in factors which affect the prices and therefore their comparability. That means, in other words, that the purpose of an adjustment is to re-establish the symmetry between normal value and export price (see judgment of 23 September 2009 in Dongguan Nanzha Leco Stationery v Council, T‑296/06, EU:T:2009:347, paragraph 42 and the case-law cited).
102 Moreover, in accordance with the case-law of the Court of Justice, if a party requests adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purposes of determining the dumping margin, it must prove that its claim is justified. The burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them (see judgment in Council v Interpipe Niko Tube et Interpipe NTRP, cited in paragraph 75 above, EU:C:2012:78, paragraphs 58 to 60 and the case-law cited).
103 In that regard, the applicants claim, in particular, that they provided and analysed the Indian producer’s profit and loss statements and the average of monthly prices of steel wire rods on the Indian market, and compared them with the average prices paid by the Indian producer. The figures contained in the Indian producer’s profit and loss statements reveal that over the years the cost of manufacturing had always amounted to 80% of net sales income and that figures for selling, general and administration expenses and those concerning the profit margin were almost identical. That proves that the Indian producer had consistently set its prices in a way which provided for a full recovery of its costs, and consequently that all the differences in costs directly translated into differences in prices.
104 Moreover, the applicants state that, when they demonstrated and quantified the adjustments, they never referred to the costs and prices applicable in China, but to those applied in India. All information regarding prices paid for cost factors was based on the Indian producer’s financial accounts or on prices applicable in India resulting from public sources.
105 It is clear from recitals 29 and 31 of the contested regulation that, in accordance with Article 2(7)(a) of the basic regulation, normal value for the applicants was determined on the basis of the prices of the product concerned, sold on the domestic market by the cooperating producer in India. Accordingly, in order to calculate the dumping margin, the institutions compared export prices with the normal value thus established.
106 Article 2(10) of the basic regulation requires the EU institutions to take into account differences affecting price comparability of the products, not the costs incurred for their manufacture. In that regard, and particularly in respect of the first two requests for adjustments connected with alleged differences in production costs, it should be noted that India is considered a market economy country and that, as the Council found in recital 103 of the contested regulation, the cooperating Indian producer was competing with many other producers in the domestic market in India, so that there was reason to consider that its prices fully reflected the situation in that market.
107 In those circumstances, the institutions could legitimately consider that that Indian producer could not freely set its prices and that, even assuming that it paid the production costs concerned at a higher price than other manufacturers in India, it was bound to maintain its prices for the product concerned at the level of Indian market prices, for example, by paying other production costs which were cheaper, or by adapting its profit margin.
108 Furthermore, the applicants do not claim that the price of the similar product was consistently more expensive in India than on the markets of other countries, which would be contrary to the conclusion reached in recital 31 of the contested regulation that India was chosen as an analogue country having regard, in particular, to the conditions of competition and openness of its market (see paragraph 41 above). In the present case, the choice of the analogue country was not contested.
109 With regard to adjustments for alleged differences in efficiency and productivity, the applicants confirm that they relied on differences in consumption (quantity, not value) of raw materials, in the consumption (quantity, not value) of electricity and in productivity per worker between themselves and the Indian producer. According to the applicants, those data cannot be affected by China’s non-market economy status.
110 However, the applicants have not demonstrated how the differences in consumption efficiency and productivity found between them, operators in a non-market economy country, and the producer in India, which has such an economy, affected the possibility of comparing the normal value and the export price. In that regard, it should be noted that it is not only the prices and costs in the analogue country which must be taken into account when determining the normal value, but all data concerning that market. The Court has already held that the provisions of Article 2(10) of the basic regulation cannot be used in order to render Article 2(7)(a) of that regulation ineffective (see, to that effect, judgment 10 October 2012 in Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, EU:T:2012:531, paragraph 123).
111 In addition, the Council noted in recital 103 of the contested regulation that the production processes in China had been found to be comparable to those of the Indian producers, and that the alleged differences had been very minor. The applicants’ argument that that claim does not take into account their specific situation and that some adjustments did not concern the production process must be rejected. It should be observed that the reason for refusing to make the adjustments was given in general terms in order to respond to a number of requests. The applicants put forward no evidence to show that the institutions’ conclusion was wrong in general terms. In addition, since the applicants did not qualify for market economy status, the data relating to them could not be considered for the purposes of determining the normal value.
112 The Court must reject the applicants’ argument that the institutions were in breach of their obligation to indicate what information was necessary and not to impose on them an unreasonable burden of proof, especially in the present case in which the information on the normal value was kept confidential. It is clear from the Court file that, during the administrative procedure, the Commission had already explained the reasons for rejecting the requests for adjustments in the same terms as set out in recital 41 of the contested regulation. In addition, it is clear from the applicants’ own observations that they already knew the reasons why the institutions considered that they had not sufficiently proved the validity of the proposed adjustments during the administrative procedure. Finally, it is clear from the Court file that the institutions did not reject the requests for adjustments concerned due to a lack of information, but because they considered that such adjustments were not necessary in order to establish the symmetry between normal value and the export price of the product concerned.
113 The applicants also argue that, in their past practice, the institutions have consistently acknowledged that differences in costs had an influence on prices. Furthermore, in the context of the original regulation, the institutions granted an adjustment for quality control based on data relating to the costs of the Indian producer, which confirms that for the Indian producer, the differences in costs translated directly into differences in prices.
114 Those arguments cannot be accepted. First, the institutions have never disputed that adjustments could be made as a result of differences in costs, and that those costs could affect prices, provided, however, that, as the institutions stated in the present case and as is clear from Article 2(10) of the basic regulation, it is proved that those costs (or the differences between those costs) affect price comparability. Secondly, it should be noted that the past practice of the EU institutions, also relied on by the applicants in the abstract, cannot have any impact on the interpretation of Article 2(10) of the basic regulation. It is apparent from that provision that the institutions must refuse an adjustment for differences in factors which have not been shown to affect prices, and therefore their comparability. Even assuming that, in past proceedings, the institutions might have favoured another interpretation of the provision in question, that could not de facto cause a condition expressly provided for in the basic regulation to be inoperable (see, to that effect, judgment of 10 October 2012 in Ningbo Yonghong Fasteners v Council, T‑150/09, EU:T:2012:529, paragraph 119).
115 Moreover, the applicants claim that the institutions had already agreed to adjustments for differences in access to raw materials or in production processes, even though the normal value was computed in an analogue country, and adjustments due to differences in productivity and energy efficiency between an exporting producer from a non-market economy country and a producer from an analogue country.
116 It must be noted that, even if adjustments were made by the institutions in other factual circumstances for differences such as those identified by the applicants, that could not apply here where it has not been demonstrated that the alleged differences affected the price comparability of the products.
117 In that respect, the judgment of 22 October 1991 in Nölle, C‑16/90, ECR, EU:C:1991:402, to which the applicants refer, does not appear to be relevant to resolving the present dispute. The response to a specific argument of the Commission concerning the choice of the analogue country which that judgment dealt with cannot be applied as such to the present case. In any event, and contrary to what the applicants maintain, it cannot be considered that that case-law explicitly confirms that the adjustment for differences in access to raw materials requested by the applicant and, mutatis mutandis, the other adjustments requested should have been granted.
118 Finally, contrary to what the applicants claim, it cannot be considered that in order to make an adjustment, it is sufficient to demonstrate ‘that the Indian producer could be expected to have reflected the cost differences … in its prices’, as is apparent from the panel report in the case United States — Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea (WT/D179/R). While the EU institutions have a duty to take steps to clarify the adjustment requested, they cannot be required to make an adjustment each time there is a possibility that factors may have an impact on prices. That would run counter to the wording of Article 2(10) of the basic regulation and the relevant case-law (see paragraphs 101 and 102 above).
119 Accordingly, the present complaint must be dismissed.
Second complaint: failure to state reasons
120 In the context of that complaint, raised in the alternative, the applicants argue that the contested regulation does not mention why the evidence they had submitted was insufficient to justify their request for adjustments. In the final disclosure document, the Commission did not provide any information and did not raise any problematic issue concerning the arguments, evidence and calculations provided by the applicants. The only reason for the refusal is the one contained in the contested regulation. However, the institutions were required to provide reasons explaining why the applicants’ evidence had been considered insufficient to justify the adjustments requested.
121 It is clear from the case-law that the statement of reasons required by Article 296 TFEU must show clearly and unequivocally the reasoning of the institution adopting the contested measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and thus to defend their rights and the Court to exercise its power of review. It is not, however, 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 to all the legal rules governing the matter in question (judgments of 30 September 2003 in Eurocoton and Others v Council, C‑76/01 P, ECR, EU:C:2003:511, paragraph 88, and of 13 April 2011 in Far Eastern New Century v Council, T‑167/07, EU:T:2011:165, paragraph 103).
122 In the present case, it is apparent clearly and unequivocally from recitals 41 and 103 of the contested regulation (see paragraph 99 above) and from paragraphs 39 and 78 of the final information document of 31 July 2012 that, following the requests for adjustments and the evidence submitted for that purpose by the applicants, the institutions refused to make those adjustments and that they set out the main reasons for that decision.
123 In that regard, it should be noted that in their observations on the general disclosure document of 14 August 2012, the applicants challenged the decision of the institutions by referring to the relevant paragraphs of that document. Specifically, they mentioned two reasons for the refusal of their request by the Commission, that is to say, first, that no evidence had been produced by the parties claiming that the differences in cost were translated into differences in price, and secondly, that in the investigations concerning transition economies such as China, an analogue country was used when that was justified in order to avoid taking into consideration prices and costs in non-market economy countries where prices and costs are not the normal result of market forces. In that context, the applicants reiterated and developed their arguments in support of the adjustments and vigorously contested the reasons set out for the refusal (see paragraph 112 above). It must be concluded that, even though the applicants did not agree with the Commission on the need to make the adjustments requested, they had understood perfectly its reasoning and were able to defend their rights.
124 In addition, it is clear from the analysis of the present plea that the applicants were properly able to challenge the reasons for the refusal of their requests for adjustments in the context of their actions.
125 Therefore, that complaint and, accordingly, the second plea in its entirety must be rejected.
126 In the light of all the foregoing, the actions must be dismissed.
Costs
127 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 bear their own costs and to pay those of the Council and EIFI in accordance with the form of order sought by those parties.
128 The Commission shall bear its own costs, in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the actions;
2. Orders Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd to bear their own costs and to pay those of the Council of the European Union and European Industrial Fasteners Institute AISBL (EIFI);
3. Orders the European Commission to bear its own costs.
Delivered in open court in Luxembourg on 29 April 2015.
[Signatures]