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Language of document : ECLI:EU:T:1997:134

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber,Extended Composition)

25 September 1997 (1)

[234s(Dumping State-trading country Like product Individual treatment Calculation of the dumping margin)[s

In Case T-170/94,

Shanghai Bicycle Corporation (Group), a company incorporated under Chineselaw, established in Shanghai (People's Republic of China), represented by Izzet M.Sinan, Barrister, with an address for service in Luxembourg at the Chambers ofArendt and Medernach, 8-10 Rue Mathias Hardt,

applicant,

Council of the European Union, represented by Bjarne Hoff-Nielsen and JorgeMonteiro, Legal Advisers, acting as Agents, assisted by Hans-Jürgen Rabe andGeorg M. Berrisch, of the Hamburg and Brussels Bars, with an address for servicein Luxembourg at the office of Alessandro Morbilli, Manager of the LegalDiretorate, European Investment Bank, 100 Boulevard Konrad Adenauer,Kirchberg,

defendant,

supported by

Commission of the European Communities, represented by Eric White, LegalAdviser, and Nicolas Khan, of its Legal Service, acting as Agents, with an addressfor service in Luxembourg at the office of Carlos Gómez de la Cruz, of its LegalService, Wagner Centre, Kirchberg,

and

The European Bicycle Manufacturers' Association (EBMA), established in Paris,represented by Jacques H.J. Bourgeois, of the Brussels Bar, with an address forservice in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

interveners,

APPLICATION for annulment of Council Regulation (EEC) No 2474/93 of 8September 1993 imposing a definitive anti-dumping duty on imports into theCommunity of bicycles originating in the People's Republic of China and collectingdefinitively the provisional anti-dumping duty (OJ 1993 L 228, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber, ExtendedComposition),

composed of: R. García-Valdecasas, President, V. Tilli, J. Azizi, R.M. MouraRamos and M. Jaeger, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the oral procedure on 11March 1997,

gives the following

Judgment

Facts

The applicant, Shanghai Bicycle Corporation (Group), a company governed byChinese law, is one of the largest producers and exporters of bicycles in China. Italso exports to the European Community.
In July 1991, the European Bicycle Manufacturers' Association ('EBMA)submitted a complaint to the Commission alleging that bicycles originating in thePeople's Republic of China had been dumped, causing serious injury.
Following that complaint, the Commission initiated an anti-dumping procedureconcerning imports into the Community of bicycles originating in Taiwan andChina, pursuant to Council Regulation (EEC) No 2423/88 of 11 July 1988 onprotection against dumped or subsidized imports from countries not members ofthe European Economic Community (OJ 1988 L 209, p. 1, 'the basic anti-dumpingregulation). Notice of initiation of the procedure was published on 12 October1991 (OJ 1991 C 266, p. 6).
During this procedure the Commission sent a questionnaire to the non-Communityproducers and exporters. The applicant replied by letter of 17 December
Several other exporters also answered it.
On 5 February 1992 the Commission requested further information concerning thetypes and models of bicycles exported to the Community. In its reply, the applicantenclosed documents altering its original answer. Those alterations concern thequantities of bicycles sold by the applicant and the value of the quantities sold,exports to the Community and further particulars of the models of bicyclesexported to the Community.
On 9 June 1992 a hearing was held by the Commission for various Taiwanese andChinese exporters.
The Commission subsequently adopted Regulation (EEC) No 550/93 of 5 March1993 imposing a provisional anti-dumping duty on imports of bicycles originatingin the People's Republic of China (OJ 1993 L 58, p. 12, 'the provisionalregulation), fixing the provisional rate of duty applicable at 34.4%.
By letter of 8 April 1993, the applicant submitted its written observations on theprovisional regulation, raising a number of objections. It also asked for informationregarding the methodology adopted by the Commission.
On 21 June 1993 the Commission provided the applicant with a document entitled'Disclosure Document, containing the principal facts and considerations relatingto the grounds on which it contemplated proposing that the Council should imposea definitive anti-dumping duty. In due course, the applicant submitted writtenobservations on that document and met the Commission's case handlers.
The Council subsequently adopted Regulation (EEC) No 2474/93 of 8 September1993 imposing a definitive anti-dumping duty on imports into the Community ofbicycles originating in the People's Republic of China and collecting definitively theprovisional anti-dumping duty (OJ 1993 L 228, p. 1, 'Regulation No 2474/93 or'the contested regulation), fixing the definitive rate of duty applicable at 30.6%.

Procedure
The applicant lodged the application initiating these proceedings at the Registry ofthe Court of Justice on 23 December 1993, where it was registered as CaseC-477/93.
Council Decision 94/149/ECSC, EC of 7 March 1994 amending Decision93/350/Euratom, ECSC, EEC amending Decision 88/591/ECSC, EEC, Euratomestablishing a Court of First Instance of the European Communities (OJ 1994 L 66,p. 29) provides that as from 15 March 1994 the Court of First Instance is toexercise jurisdiction in actions brought by natural or legal persons pursuant toArticles 173, 175 and 178 of the EC Treaty relating to measures to protect tradein the case of dumping and subsidies. Accordingly, by order of 18 April 1994 theCourt of Justice referred the case to the Court of First Instance, where it wasregistered as Case T-170/94.
By order of 14 September 1994, the President of the Third Chamber of the Courtof First Instance granted the Commission leave to intervene in support of the formof order sought by the defendant. By letter of 17 October 1994, the Commissionstated that it did not intend to submit a statement in intervention.
By order of 20 October 1994, the President of the Third Chamber (ExtendedComposition) of the Court of First Instance granted EBMA leave to intervene insupport of the form of order sought by the defendant and granted confidentialtreatment in respect of two documents annexed to the application. EBMAsubmitted its statement in intervention on 6 January 1995. The applicant lodgedits observations concerning that statement on 3 March 1995. At the defendant'srequest, the written procedure was reopened by decision of this Court of 26 April1995 in order to enable it to express its views on the applicant's observationsconcerning EBMA's statement in intervention. The defendant submitted itsobservations on 2 June 1995.
Following the accession of the Republic of Austria, the Republic of Finland and theKingdom of Sweden to the European Communities, the case was reassigned on 23January 1995 to the Third Chamber (Extended Composition) and a new JudgeRapporteur designated. Since he was later attached to the Fifth Chamber(Extended Composition), the case was in consequence assigned to that chamber.
Upon hearing the Report of the Judge-Rapporteur, the Court of First Instance(Fifth Chamber, Extended Composition) decided to open the oral procedure andto adopt measures of organization of procedure. Before the date of the hearing,the defendant produced the documents requested by the Court.
The parties presented oral argument and replied to the Court's questions at thehearing on 11 March 1997.

Forms of order sought
The applicant claims that the Court should:
- annul Regulation No 2474/93;
- order the defendant to pay the costs.
The defendant contends that the Court should:
- declare the application inadmissible;
- alternatively, dismiss it as unfounded;
- order the applicant to pay the costs.
The intervener, EBMA, contends that the Court should:
- declare the application inadmissible;
- alternatively, dismiss it as unfounded;
- order the applicant to pay the costs of intervention.
The other intervener, the Commission, contended at the hearing that the Courtshould:
- dismiss the application;
- order the applicant to pay the costs of intervention.
Admissibility
Supported by the interveners, the defendant raises essentially three pleas ofinadmissibility. The first concerns the applicant's status as a legal person. Thesecond alleges that the applicant is not directly and individually concerned. Thethird alleges that the scope of the application is excessively wide.

The first plea of inadmissibility

Arguments of the parties
The defendant and interveners contend that the applicant cannot be regarded asa legal person within the meaning of the fourth paragraph of Article 173 of theTreaty. The information supplied concerning the links between the applicantcompany and the 13 entities which form part of its group and the share held by oneof those entities in another company is contradictory and does not make it possibleto determine satisfactorily the applicant's legal status and activities. Furthermore,none of the information communicated by the applicant makes it clear whether thelatter is a manufacturing company or a trading company.
In addition, the defendant points out that, contrary to the requirements of Article38(5) of the Rules of Procedure of the Court of Justice, the application was notaccompanied by an instrument constituting or regulating the applicant company ora recent extract from the register of companies, firms or associations.
The applicant challenges the defendant and interveners' argument that it is not alegal person. For that purpose, it has annexed to the reply a copy of itscommercial registration and notes that the 13 entities forming part of the group areproduction units and not separate companies. Furthermore, the explanationscontained in its reply to the Commission's questionnaire concerning its holding inthe capital of another company are perfectly clear and have been confirmed by thatcompany.

Findings of the Court
The admissibility of an action for annulment brought by an entity under Article 173of the Treaty depends primarily on the legal personality of the applicant. Underthe Community judicial system, an applicant is a legal person if it has acquired legalpersonality in accordance with the law governing its constitution (Case 50/84Bensider v Commission [1984] ECR 3991, paragraphs 7 and 8), or if it has beentreated as an independent legal entity by the Community institutions (Case 175/73Union Syndicale and Others v Council [1974] ECR 917, paragraphs 11 to 13, andCase 18/74 Syndicat Général du Personnel v Commission [1974] ECR 933,paragraphs 7 to 9; Case T-161/94 Sinochem Heilongjiang v Council [1996] ECRII-695, paragraph 31).
In accordance with Article 38(5)(a) of the Rules of Procedure of the Court ofJustice and Article 44(5)(a) of the Rules of Procedure of the Court of FirstInstance, where the applicant is a legal person governed by private law, itsapplication must be accompanied by the instrument or instruments constituting orregulating that person or a recent extract from the register of companies, firms orassociations or any other proof of its existence in law.
In this case, the applicant is the principal company of the Shanghai BicycleCorporation Group, an undertaking engaged in both manufacturing and exporting. It is composed of 13 production units. At the reply stage it produced a copy of thecommercial register evidencing its registration by the Shanghai provincial authoritieson 21 May 1993. According to that document, the applicant is a 'corporate legalperson owned by the People's Republic of China and possessing legal personalityunder Chinese law. Since the fact that legal personality has been conferred bynational law gives rise to the presumption that the conditions for acquiring legalpersonality for the purposes of the fourth subparagraph of Article 173 of the Treatyhave been satisfied (see Bensider, cited above, paragraphs 7 and 8) and since thedocument showing commercial registration is evidence of legal personality underChinese law, that document must be regarded as equivalent to an extract providingproof of the applicant's existence in law, within the meaning of the abovementionedRules of Procedure of the Court of Justice and the Court of First Instance.
Furthermore, the applicant was treated as an independent legal entity by theCommunity institutions at the time of the administrative procedure. TheCommission accordingly corresponded with it on a regular basis and accepted it asan interlocutor at the hearing. That being so, the Community institutions cannotmaintain that, in the judicial proceedings following the administrative procedure,the applicant is not an independent legal person (Sinochem, cited above, paragraph34).
In the light of all the above considerations, it is clear that at the time of making theapplication, the applicant was a legal person within the meaning of Article 173 ofthe Treaty.

The second plea of inadmissibility

Arguments of the parties
The defendant and interveners maintain that the applicant is not directly andindividually concerned by the contested regulation within the meaning of the fourthparagraph of Article 173.
They point out that, in countries which do not have a market economy, exportersare controlled by the State and that, in consequence, anti-dumping proceedings andregulations are directed against the latter and not against the various exporters. Intheir view, the applicant cannot rely on the judgment in Case 113/77 NTN ToyoBearing Company and Others v Council [1979] ECR 1185, paragraph 11, in whichthe Court held that an anti-dumping regulation, by analogy with a 'collectivedecision, is none the less of direct and individual concern to the producersspecifically named in it. Nor can it rely on the judgment in Joined Cases 239/82and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005,paragraphs 11 and 12, in which the undertakings, and not the State, were chargedwith dumping practices. According to the defendant, in so far as Regulation No2474/93 concerns exports from a State-trading country it does not have thecharacter of a 'collective decision against undertakings specifically named in theregulation. In addition, it contends that the applicant cannot plead the judgmentin Allied Corporation v Commission either, since in this case it is the People'sRepublic of China, and not the applicant or other manufacturers and/or exporters,which has been charged with dumping practices.
The applicant takes the view that it is directly and individually concerned by thecontested regulation. First, it is specifically named in the regulation. Second, itparticipated in every stage of the investigation. It maintains that it satisfies theconditions for admissibility set out by the Court of Justice in Allied Corporation vCommission, cited above. Although it had always been treated as a party to theproceedings by the Commission's case handlers, the Commission and the Councilrefused to use the information supplied by it. It is precisely that refusal which gaverise to the dispute.
The applicant claims to be a bicycle manufacturer and accordingly denies that itcan be treated as an importer.

Findings of the Court
Although, in the light of the criteria set out in the second paragraph of Article 173of the Treaty, regulations imposing anti-dumping duties are indeed, as regards theirnature and their scope, of a legislative character in that they apply to all the tradersconcerned taken as a whole, their provisions may none the less be of individualconcern to certain traders (Case C-358/89 Extramet Industrie v Council [1991] ECRI-2501, paragraph 13, and Sinochem, cited above, paragraph 45).
It has thus been acknowledged that measures imposing anti-dumping duties areliable to be of direct and individual concern to those producers and exporters whoare able to establish that they were identified in the measures adopted by theCommission or the Council or were concerned by the preliminary investigations(see Allied Corporation v Commission, cited above, paragraph 12; Case 53/83 AlliedCorporation and Others v Council [1985] ECR 1621, paragraph 4; and ExtrametIndustrie, cited above, paragraph 15) and, more generally, to any trader who canestablish the existence of certain attributes which are peculiar to him and which,as regards the measure in question, differentiate him from all other traders (seeExtramet Industrie, cited above, paragraphs 16 and 17, and Sinochem, cited above,paragraph 46).
The Court is unable to endorse the defendant's argument that Joined Cases 239/82and 275/82 Allied Corporation v Commission cannot be relied upon in this case onthe ground that it is not the various Chinese manufacturers and exporters who havebeen charged with dumping practices but the People's Republic of China as aState. It is clear from Regulation No 2474/93, and in particular from the 50threcital in the preamble thereto concerning the calculation of the dumping margin,that the dumping practices are attributed to Chinese undertakings exportingbicycles to the Community.
Moreover, the judicial protection afforded to individual undertakings concerned byan anti-dumping duty cannot be affected by the mere fact that the duty in questionis a single duty and is imposed by reference to a State and not to individualundertakings.
In the circumstances of the case, it must be recognized that the applicant isindividually concerned by the contested regulation. In the first place, the bicyclesit manufactures are subject to an anti-dumping duty. In the second place, itparticipated in the administrative procedure as far as it could (it replied to theCommission's questionnaire, took part in a hearing, made observations on theprovisional regulation and the 'Disclosure Document). Furthermore, itsparticipation is expressly referred to in the contested regulation, which consequently'identifies the applicant (see Case T-155/94 Climax Paper Converters v Council[1996] ECR II-873, paragraphs 50 and 51).
Moreover, the defendant has not produced evidence to support its assertion thatthe applicant is simply a trader in bicycles and may be placed on the same footingas an importer free to select its manufacturers (see paragraph 23 above).
The applicant is also directly concerned because a regulation which imposes ananti-dumping duty obliges the Member States' customs authorities to levy the dutyimposed without leaving them any discretion (Case 118/77 I.S.O. v Council [1979]ECR 1277, paragraph 26, and Climax Paper, cited above, paragraph 53).
It follows that the second plea of inadmissibility must be rejected.

The third plea of inadmissibility

Arguments of the parties
According to the defendant, the applicant cannot in any event seek annulment ofthe contested regulation in its entirety, but only in so far as the applicant has notbeen exempted from the anti-dumping duty (Case C-174/87 Ricoh v Council [1992]ECR I-1335, paragraph 7).
The applicant points out that in Ricoh, cited above, the Japanese companiesconcerned had been subjected by the Council to anti-dumping duties calculatedindividually for each of them. In its view, the reasoning of the Court of Justice, tothe effect that a company may seek annulment only of the provisions imposing aspecific anti-dumping duty on it, is irrelevant in the context of an anti-dumpingprocedure against undertakings from a non-market economy country such as thePeople's Republic of China. Consequently, the defendant's arguments revolve ina 'vicious circle, since the dumping practices in question are attributed toundertakings from a country with no market economy.
Furthermore, it is clear from the first page of the application that annulment of thecontested regulation is sought in so far as it affects the applicant.

Findings of the Court
Although it is not stated in so many words in the form of order sought by theapplicant, it is clear from the first page of the application as confirmed at thehearing that it seeks annulment of Regulation No 2474/93 'in so far as it affects theapplicant.
It follows that the application must be interpreted as seeking annulment of theregulation only in so far as it affects the applicant.
Accordingly, the third plea of inadmissibility alleging that the scope of the actionis too wide must be rejected (see also Climax Paper, cited above, paragraphs 54 to56).
It follows from all the foregoing considerations that the action is admissible.

Substance
The applicant relies on five pleas in law in support of its action. The first pleaalleges infringement of Article 2(12) of the basic anti-dumping regulation, andabuse of powers in determining which products should be subject to the anti-dumping duty. The second plea alleges infringement of Article 2(13) of the basicanti-dumping regulation in that the defendant used an improper samplingtechnique. In its third plea, the applicant alleges that, by refusing to grant it individual treatment, the Community institutions infringed Articles 2(5) and (9) and13(3) of the basic anti-dumping regulation and Article VI(2) of the GeneralAgreement on Tariffs and Trade ('GATT). According to the fourth plea, thedefendant infringed Article 7(4)(b) and (c) of the basic anti-dumping regulation byrefusing to disclose the method used to calculate the dumping margin. In its fifthplea, the applicant alleges infringement of Article 13(3) of the basic anti-dumpingregulation and abuse of discretion in that the anti-dumping duty imposed is said tobe excessive.

The first plea: error in defining 'like products (breach of Article 2(12) of the basicanti-dumping regulation) and abuse of powers in determining the products subject tothe anti-dumping duty

Arguments of the parties
The applicant claims that the defendant has grouped all types of bicycles togetheras a single like product, instead of distinguishing five separate categories, namelymountain bicycles, sports/racing bicycles, touring bicycles, children's bicycles and theresidual category of other bicycles. The Commission originally used thatclassification, as its questionnaire shows, but departed from it in the provisionalregulation. Accordingly, the defendant failed to classify the products correctly inorder to calculate the normal value and the dumping margin.
According to the applicant, all bicycles cannot be regarded as like products, thedifferences between the categories of bicycles listed above being fundamental. Each category is aimed at a different class of consumers and is used for a specificpurpose.
In order to determine 'like products within the meaning of Article 2(12) of thebasic anti-dumping regulation, the question is not how the product is actually usedonce it is purchased, but the criteria on which the purchaser bases his choice, sincethat is the stage at which competition takes place. Those criteria include physicalcharacteristics and 'functional substitutability (Joined Cases 294/86 and 77/87Technointorg v Commission and Council [1988] ECR 6077; Case C-176/87Konishiroku Photo Industry v Council [1992] ECR I-1493 and Case C-177/87 SanyoElectric v Council [1992] ECR I-1535; see also the Opinion of Advocate GeneralLenz in Case C-75/92 Gao Yao v Council [1994] ECR I-3141, point 82).
Moreover, the applicant alleges that the defendant abused its discretion by failingto determine the dumping margin and injury for each of the abovementionedcategories of bicycle. Unlike the Taiwanese manufacturers and Chinese joint-venture undertakings which mainly export mountain bicycles to the Community and,to a lesser extent, racing bicycles, the applicant exports a large number of children'sbicycles, a few mountain bicycles and virtually no racing bicycles.
As a preliminary point, the defendant observes that the concept of 'like productin the basic anti-dumping regulation does not allow any conclusion to be drawn asto the product or range of products which may be subject to an anti-dumpinginvestigation, but is intended to ensure that a proper price comparison is made inorder to establish the normal value and the dumping margin.
First of all, the defendant denies that it initially sought to distinguish between fivecategories of bicycle.
Second, it was correct in considering the whole range of bicycles to be a singleproduct, because the distinctions between the various categories are blurred andbecause the various categories are in competition with one another on account ofthe resemblances between bicycles of different types. Moreover, it is impossibleto establish clear-cut categories of bicycle, since new models displaying the featuresof various types of bicycles are constantly appearing on the market.
According to the defendant, since Article 2(12) of the basic anti-dumping regulationdefines 'like product as a product which is identical 'in all respects to theproduct under consideration, it would have been necessary, in keeping with theapplicant's reasoning, to divide bicycles into substantially more than five categories. No two bicycles are perfectly identical, that is to say 'alike in all respects.
First, it follows in its view from the judgment of the Court of Justice in Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 58, that in the absence ofgenerally accepted criteria for grouping products into distinct categories, allproducts concerned could validly be treated as like products. Second, according tothe Opinion of Advocate General Lenz in Gao Yao, cited above, the Communityinstitutions enjoy a broad discretion with regard to the comparability of theproducts concerned. Third, the Community institutions are entitled to treat someproducts as a single 'like product if the product segments are not clearlydelimited, if some product types can be classified in several different segments andif there is competition between product types in adjoining segments and betweenproduct types in various distinct segments (Case C-179/87 Sharp Corporation vCouncil [1992] ECR I-1635, paragraphs 26 to 28). The defendant submits that theCourt's reasoning in that case applies to the present case as well. In accordancewith that case-law, the burden of proving that the Community institutions made anerror of assessment in determining 'like products rests with the applicant. In thepresent case, however, the applicant has failed to establish any such error.
The intervener EBMA shares the defendant's view that the distinction betweenbicycles is unclear, as various categories overlap. In addition, there is a very highdegree of functional substitutability between the various types of bicycle, since it isvery easy to remove, add or replace various components according to thecustomer's wishes.

Findings of the Court
The basic anti-dumping regulation does not specify exactly how the product orrange of products which may be subject to an anti-dumping investigation is to bedefined or require an intricate classification of the product.
It refers to the concept of 'like product in the context of establishing normal valueand injury. Article 2(5) provides that the normal value of a dumped product is tobe defined by reference to a 'like product of a market economy third countrywhich is actually sold. In accordance with Article 2(12), 'like product" means aproduct which is identical, i.e. alike in all respects to the product underconsideration or, in the absence of such a product, another product which hascharacteristics closely resembling those of the product under consideration. According to Article 4(4), 'the effect of the dumped or subsidized imports shall beassessed in relation to the Community production of the like product whenavailable data permit its separate identification.
The institutions enjoy a wide discretion in analysing complex economic situations(see, for instance, Case T-164/94 Ferchimex v Council [1995] ECR II-2681,paragraph 66) and the determination of 'like products in establishing normalvalue pursuant to those provisions falls within that context.
Judicial review of such assessment must be limited to verifying whether the relevantprocedural rules have been complied with, whether the facts on which thecontested choice is based have been accurately stated and whether there has beena manifest error of appraisal of the facts or a misuse of power (Case 255/84 NachiFujikoshi v Council [1987] ECR 1861, paragraph 21; Case C-156/87 GestetnerHoldings v Council and Commission [1990] ECR I-781, paragraph 63; andFerchimex, cited above, paragraph 67).
This Court must therefore consider whether, in this instance, the Communityinstitutions have exceeded their wide discretion (see paragraph 63 above) bytreating as 'Community production of the like product bicycle production as awhole, all segments merged together.
The Court of Justice held in its judgments concerning anti-dumping duties imposedon plain paper copiers originating in Japan (see, for example, Case C-171/87 Canonv Council [1992] ECR I-1237, paragraphs 47, 48 and 52; Ricoh, cited above,paragraphs 35, 36 and 40; and Sharp Corporation, cited above, paragraphs 25, 26and 30) that the Community institutions did not make an error of assessment byconsidering, with a view to determining the injury suffered by the Communityindustry, that 'Community production of the like product meant production of allphotocopiers, in all segments merged together, excluding machines not producedin the Community, since according to the market surveys on which the institutionshad relied, there was no clear delimitation in the segment classification ofphotocopiers inasmuch as, on the one hand, some photocopiers could be classedin several different segments in view of certain of their characteristics and technicalfeatures and, on the other, there was competition both between machines inadjoining segments and between those classified in non-adjoining segments.
As indicated in the provisional regulation (see the 9th to 11th recitals in thepreamble) and the contested regulation (see the eighth recital in the preamble), theinstitutions concluded that it was not possible to define clearly distinct categoriesof bicycles based on end-users' application or consumers' perception.
It must be stated that several models of bicycle exist which are distinguished chieflyby their particular accessories. Bicycles are usually classified in five sub-categories:mountain bicycles, sports/racing bicycles, touring bicycles, children's bicycles and theresidual category of other bicycles.
None the less, it is clear from the documents before the Court and the explanationssupplied by the parties at the hearing that those models are not clearly delimited,since some bicycles can be classified in several sub-categories in view of certain oftheir characteristics and technical features. Furthermore, there is competition bothbetween bicycles in adjoining sub-categories and between those classified in thevarious sub-categories.
Those differences between bicycles are not sufficient to establish that all thosemodels have different functions or answer different needs. As is apparent,moreover, from the eighth recital in the preamble to the contested regulation, thefact that consumers tend to use multi-purpose bicycles and that it is possible toalter models by adding various components weakens, even eliminates entirely, therelevance of any distinction drawn between various categories of bicycles for thepurposes of an anti-dumping procedure.
In any event, the applicant has not established that the institutions committed amanifest error in their appraisal of the facts by considering that, in this instance,the concept of 'like product within the meaning of Article 2(12) of the basic anti-dumping regulation covers all bicycles, all categories merged together.
It follows that the first plea must be rejected.

The second plea: improper sampling technique (breach of Article 2(13) of the basicanti-dumping regulation)

Arguments of the parties
In its second plea, the applicant claims that the defendant infringed Article 2(13)of the basic anti-dumping regulation, which allows the use of sampling techniquesonly where a significant volume of transactions is involved. In those circumstances,the defendant should use the most frequently occurring or representative prices.
In the present case, according to the applicant, the sample used is notrepresentative. The defendant did not take into account data relating to the State-owned undertakings which replied to the questionnaire, with just one exception. Admittedly, that undertaking had the largest volume of exports, but its prices weremuch lower than those of the other exporters concerned. Since the number oftransactions by State-owned undertakings was relatively low, the defendant, if itwished to adopt the sampling technique, could and should have set price bands orreferred to the most frequently occurring transactions by all State-owned exporters. At the very least the defendant ought to have taken into consideration data relatingto State-owned undertakings more representative than the company it used,especially the data supplied by the applicant. The latter is the second largest Stateexporter operating on the market under consideration and sells at 'more normalprices.
Furthermore, the applicant alleges that the defendant made a fundamental errorin its sampling by treating Waimanly Bicycle Manufactory ('Waimanly) as a State-owned company, whereas it does not fall into that category of undertakings.
According to the defendant, supported by the interveners, the conditions for theapplication of Article 2(13) of the basic anti-dumping regulation were satisfied. Itnotes, first, that the investigation concerned exports of bicycles from the People'sRepublic of China and not exports from individual Chinese companies. Second,prices varied greatly and the number of transactions was very high. For each typeof Chinese bicycle a corresponding model sold on the Taiwanese market had to befound in order to establish normal value, and a model sold on the Communitymarket in order to assess undercutting. Extending the sample to other exportersand their types of bicycle would have significantly increased the number oftransactions to be analysed and, consequently, prolonged the proceedingsunreasonably.
According to the defendant, the applicant is wrong to complain that it did notinclude all the exporters in its sample. The provision in question allows samplingbased on a representative selection of exporters, especially where, as in this case,a large number of exporters are involved.
In this case, it submits, the sample was representative since it covered 88% of allexports to the Community by the 20 companies which replied to the questionnaire. It included exports made by Guangzhou Five Rams Bicycle Group and Waimanly,two State-owned companies. Those exports account for more than 85% of allexports effected during the investigation period by those State-owned companieswhich replied to the questionnaire.
Contrary to the applicant's assertion, the defendant maintains, Waimanly is a State-owned company since it is wholly owned by the 'Foreign Trading Company of PoOu Province, which in turn is wholly owned by the People's Republic of China.

Findings of the Court
Article 2(13) of the basic anti-dumping regulation provides that 'where prices vary(...) sampling techniques, [i.e.] the use of the most frequently occurring orrepresentative prices may be applied to establish normal value and export pricesin cases in which a significant volume of transactions is involved.
In determining the normal value of goods, undertakings may be chosen on accountof the degree to which they are representative as regards their exports to theCommunity market (see, inter alia, Case 246/87 Continentale Produkten-Gesellschaft[1989] ECR 1151, paragraph 12).
There is not the slightest indication either in the aforesaid provision or in the case-law that the Community institutions are required to take into account the priceswhich occur most frequently or the most representative prices of each exporterindividually rather than the prices of all exporters taken together.
As the Community institutions point out, it is clear from the 15th recital in thepreamble to the provisional regulation and the 28th recital in the preamble to thecontested regulation that the undertakings concerned were selected on account ofthe degree to which they are representative in terms of exports to the Communitymarket. In that regard, the applicant does not deny that the six companiesincluded in the sample represented 88% of all exports to the Community made bythe companies which replied to the questionnaire (28th recital in the preamble tothe contested regulation).
As regards the applicant's assertion that Waimanly cannot be regarded as a State-owned undertaking, it appears from the documents produced by the Commissionbefore the Court on 25 February 1997 and in particular from a fax sent to theCommission on 1 July 1992 by Waimanly's legal adviser that Waimanly is anundertaking wholly owned by the Foreign Trading Company of Po Ou Province, anorgan of the People's Republic of China. Consequently, the Community institutionshad good reason to consider Waimanly to be a State undertaking.
Finally, Article 2(13) of the basic anti-dumping regulation grants the institutions awide discretion (see Ferchimex, cited above). As a result, this Court's review mustbe limited to verifying whether the relevant procedural rules have been compliedwith, whether the facts on which the contested choice is based have been accuratelystated and whether there has been a manifest error of appraisal of the facts or amisuse of power (see the judgments cited in paragraphs 63 and 64 above: NachiFujikoshi, paragraph 21; Gestetner Holdings, paragraph 63; and Ferchimex,paragraph 67).
In light of the foregoing, the mere fact that the defendant took account of therepresentative prices of the largest exporters in each of the categories it hadestablished and not of the prices of all exporters is not such as to demonstrate thatthe sampling on which the imposition of the disputed anti-dumping duty was basedwas patently unrepresentative.
It follows that the second plea must be rejected.

The third plea: refusal to grant individual treatment to the various exporters concerned(breach of Articles 2(5) and (9) and 13(3) of the basic anti-dumping regulation andArticle VI(2) of the GATT)

Arguments of the parties
The applicant points out, as a preliminary matter, that as regards the impositionof anti-dumping duties, the Community institutions have for some years applied apolicy which consists of refusing to grant individual treatment to undertakings innon-market economy countries (see the 33rd and 34th recitals in the preamble tothe provisional regulation). Accordingly, a single anti-dumping duty is imposed inrespect of all exporters in the country concerned and applied to all productsexported to the European Community, regardless of the dumping marginsestablished for each of the producers or exporters concerned. According to theapplicant, the Commission and Council considered that the imposition ofdifferentiated duties for undertakings in centrally planned economies wouldencourage the State to channel all exports through the company bearing the lowestanti-dumping duty.
The applicant maintains that application of such a policy is contrary to the basicanti-dumping regulation, which requires the Community institutions to grantindividual treatment as far as possible to exporters, irrespective of the products'country of origin, at least where the undertaking has fully cooperated in theproceedings.
The policy of the Community institutions not to impose anti-dumping dutiesaccording to the individual position of each of the exporters concerned implies notonly that the data specifically relating to each exporter had been disregarded incalculating normal value concerning them but also that differences affecting eachexporter's prices and volume of exports had been ignored. A practice of that kindleads to violation of one of the fundamental principles of the GATT with regardto anti-dumping duties (Article VI(2) of the GATT), embodied in Article 8(3) ofthe Agreement on Implementation of Article VI of the GATT of 12 April 1979 (OJ1980 L 71, p. 90, 'the GATT Anti-Dumping Code), and incorporated in Article13(3) of the basic anti-dumping regulation, which provides that 'the amount of suchduties shall not exceed the dumping margin (...) provisionally estimated or finallyestablished; it should be less if such lesser duty would be adequate to remove theinjury. Finally, that practice prevents the undertakings concerned, including theapplicant, from receiving a fair hearing.
According to the applicant, the defendant cannot plead the fact that the applicantis a company from a non-market economy country , since the only distinction drawnby the legislature between companies from those countries and others relatespurely to the method of calculating normal value.
In addition, the applicant maintains that even in the context of the disputed policythe Community institutions ought to have granted it individual treatment. Inprevious cases concerning products from the People's Republic of China, theCommunity institutions allowed individual treatment where the exporters inquestion had demonstrated that they were independent of the State in the conductof their export policy and in establishing their export prices (16th recital in thepreamble to the contested regulation).
So far as concerns precisely its independence from the State, the applicantconsiders that it meets the conditions laid down by the Community institutions ina Commission memorandum of 1 December 1992 specifying the line of conduct itintended to adopt with regard to dumping by joint ventures in non-market economycountries. The applicant claims that it is entirely free to sell its products abroadwithout any authorization and that generally it sells direct to unrelated importersestablished in the Community on terms which are freely negotiated.
In any event, it is for the Community institutions to prove the existence of Statecontrol of exports and not simply to assume it. In the circumstances, they have notadduced any evidence to that effect.
Last, the applicant claims that the People's Republic of China is not a State-tradingcountry but a 'socialist market economy which, while it does not permitcompanies' shares to be owned by individuals, does require undertakings to beresponsible for their profits and losses. In this respect the applicant refers toseveral articles of economic literature which attest that the Chinese economy is inthe process of being transformed into a market economy. The fact that theChinese State, like any other State, can at any time change its legislation does notcall into question the independence of the undertakings vis-à-vis the State.
The defendant contends that the basic anti-dumping regulation does not require theCommunity institutions to treat exporters individually. It maintains that it is evidentfrom Article 7(1)(a) of that regulation that anti-dumping proceedings concernexports from one or more countries and not exports from one or more companiestaken individually. Article 13(2) merely stipulates that anti-dumping regulationsshould always indicate the country of origin or export and, if practicable, the nameof the supplier.
It submits that there is no provision in the basic anti-dumping regulation, includingArticle 13(3), which requires individual dumping margins to be calculated for eachexporter and that the same holds true for the GATT Anti-Dumping Code. Thelatter, however, is inapplicable in the present case since the People's Republic ofChina is not a contracting party to the GATT.
The defendant maintains that in the present case the applicant could not be treatedindividually. It points out that it has not been demonstrated that the applicant wasfree to act independently of the Chinese State. It would not have been possible toindividualize exporters without reducing the effectiveness of the protectionmeasures adopted. Because the State is able to control subcontractors' prices, thecosts of export companies do not necessarily reflect economic reality. Consequently, taking into consideration individual dumping margins might give oneof the export companies an unjustified competitive advantage, since the State wouldbe able to circumvent the protection measures by channelling exports through theexporter bearing the lowest duty.
Even if State control in the People's Republic of China has been reduced in certainsectors, Chinese export companies such as the applicant are still wholly owned andcontrolled by the State and cannot, therefore, be regarded as independentcompanies comparable to those operating in a market economy. Accordingly, theState may at any time withdraw from any exporter authorization to engage inexport transactions. In any event, even by conducting an on-the-spot investigation,it is impossible to ascertain the exact degree of State control: on the one hand,some laws are not published and foreigners do not have access to them and, on theother, certain practices take precedence over the law.

Findings of the Court
There is no provision in the basic anti-dumping regulation which prohibits theimposition of a single anti-dumping duty for State-trading countries (Climax Paper,cited above, paragraph 92).
Article 2(5) merely indicates the criteria on the basis of which normal value is tobe determined in the case of imports from non-market economy countries. Article2(9) concerning the comparison of normal value with export price concerns onlythe comparability of prices and the adjustments that are intended to take accountof the differences affecting such comparability.
It follows from Article 2(13) that, where prices vary, export prices are as a rule tobe compared with normal value on a transaction-by-transaction basis. In this case,the comparison was made on that basis (see the 28th recital in the preamble to theprovisional regulation). However, contrary to the applicant's claim, that does notmean that a single anti-dumping duty could not be fixed.
Neither Article 13(3) of the basic anti-dumping regulation nor Article 8(3) of theGATT Anti-Dumping Code, irrespective of whether or not the latter is applicablein this case, prohibits the imposition of a single duty or requires calculation of adumping margin for each exporter individually. All they require is that thereshould be a connection between the amount of duty, even if a single duty, and thedumping margin, even if determined singly.
While Article 2(14)(a) of the basic anti-dumping regulation defines the 'dumpingmargin as the amount by which the normal value exceeds the export price, Article2(14)(b) provides that 'where dumping margins vary, weighted averages may beestablished.
Finally, Article 13(2) provides that an anti-dumping regulation is to 'indicate inparticular the amount and type of duty imposed, the product covered, the countryof origin or export, the name of the supplier, if practicable, and the reasons onwhich the regulation is based. In that regard (see Climax Paper, cited above,paragraph 93), although it does indeed follow from both the scheme and purposeof that provision that the obligation to indicate the name of the supplier in anti-dumping regulations in principle implies an obligation to fix a specific anti-dumpingduty for each supplier, the wording of that provision nevertheless specifies that thename is to be indicated only 'if practicable. The legislature has thereforeexpressly limited the obligation to indicate the name of the supplier, and thus theobligation to fix a specific anti-dumping duty for each supplier, strictly to thosecases where such specific particulars are practicable.
In pursuing the disputed policy the institutions did not misinterpret the expression'if practicable. The fact is that it is not practicable to indicate the name of eachsupplier if, in order to avoid the risk of circumventing anti-dumping duties, it isnecessary to impose a single duty for an entire country. That is particularly sowhere, in the case of a State-trading country, the Community institutions haveexamined the situation of the exporters concerned and are not convinced that thoseexporters are acting independently of the State (see Climax Paper, cited above,paragraph 94).
Nor is the disputed policy contrary to the purpose and spirit of the basic anti-dumping regulation. As the Court of First Instance has already held in ClimaxPaper, cited above, paragraph 95, the purpose of that regulation is inter alia toprotect the Community against dumped imports. As to its spirit, it follows from itsvarious provisions that the normal value and the export prices must normally beestablished individually for each exporter. However, that does not mean that theCommunity institutions are obliged to do so in each case, or that they are obligedto impose an individual anti-dumping duty for each exporter. The spirit of theregulation leaves the Community institutions with a wide discretion in decidingwhen the most appropriate solution is to grant individual treatment to the exportersconcerned. That follows inter alia from Article 2(14)(b) and Article 13(2), whichleave to the Community institutions the possibility of establishing a weightedaverage of the dumping margins, and thus a single dumping margin, for an entirecountry and of imposing a single anti-dumping duty for that country.
It follows from the foregoing that a policy which results in the imposition of a singleanti-dumping duty in respect of an entire country is not contrary to the letter orpurpose, or to the spirit of the basic anti-dumping regulation, if that policy isnecessary in order for the Community to protect itself against dumping and againstthe risk of protection measures being circumvented (see Climax Paper, cited above,paragraph 96).
The question whether an exporter in a State-trading country is acting with sufficientindependence of the State for individual treatment to be granted to him involvesan assessment of complex factual situations which are at one and the same time ofan economic, political and legal nature. In that regard, it is established case-lawthat the institutions enjoy a wide discretion in regard to the assessment of complexeconomic matters (see Ferchimex, cited above, paragraph 131), and that judicialreview of such an assessment must be limited to verifying whether the relevantprocedural rules have been complied with, whether the facts on which thecontested choice is based have been accurately stated and whether there has beena manifest error of appraisal of the facts or a misuse of power (see the judgmentscited in paragraph 64 above: Nachi Fujikoshi, paragraph 21, and Gestetner Holdings,paragraph 63). The position is the same in regard to factual situations of a legaland political nature in the country concerned which the Community institutionsmust assess in order to determine whether an exporter is acting with a sufficientdegree of independence from the authorities of a State-trading country in order toreceive individual treatment (see Climax Paper, cited above, paragraph 98).
In the circumstances of the case, the defendant's arguments set out in the 17thto 21st recitals in the preamble to the contested regulation and in its pleadings in favour of the imposition of a single duty are pertinent. In particular, the basicanti-dumping regulation does not make individual treatment mandatory; moreover,the Commission's inability, in the present situation, to verify the Chinese exporters'statements on the spot would seem plausible.
It should be noted, in particular, that the reasons set out in the 19th recital in thepreamble to the contested regulation to support the claim that in a country suchas the People's Republic of China it was extremely difficult to verify whether aChinese undertaking really was independent of the State do not appear to bemanifestly incorrect. Furthermore, the applicant has not rebutted the argument setout in the aforesaid recital that during the investigation period the People'sRepublic of China was in transition from a fully State-controlled economy to apartly market-orientated economy. Nor has it challenged the claim that Statecontrol subsisted in many aspects of economic life and that the law and institutionsnecessary for the functioning of a market economy were not sufficiently developedand familiar to the traders and officials concerned.
In addition, the applicant has not denied that a representative of the ChineseGovernment, claiming to represent all bicycle manufacturers in which the ChineseState had a shareholding, declared to the Commission that the State coordinatedthe activities of all bicycle manufacturers in China (26th recital in the preamble tothe contested regulation).
Furthermore, the applicant stated both in its application and at the hearing that theeconomy of the People's Republic of China is not, strictly speaking, a marketeconomy, but rather a 'socialist market economy, thus impliedly acknowledgingthat it remains a State-trading country.
As to the Commission's memorandum of 1 December 1992, suffice it to note thatit is an internal document, and thus the Commission's own working document, andas such cannot give rise to justified hopes on the part of the applicant (see ClimaxPaper, cited above, paragraph 115) or bind another Community institution.
It follows that the applicant has not succeeded in showing that it really wasindependent of the influence of the Chinese authorities. The Communityinstitutions have not therefore committed a manifest error in appraising the facts.
It follows that the third plea must be rejected as unfounded.

The fourth plea: refusal to disclose the method of calculation (breach of Article7(4)(b) and (c) of the basic anti-dumping regulation)

Arguments of the parties
The applicant complains that the Commission has failed to fulfil its duty ofdisclosure under Article 7(4)(b) of the basic anti-dumping regulation, inasmuch asthe information imparted to it was insufficient. The Commission merelycommunicated, first, data relating to Guangzhou Five Rams Bicycle Group, thoughit disclosed none at all concerning the applicant, second, insufficient informationconcerning the models and prices of Taiwanese bicycles used as the basis forcalculating normal value and, third, global figures for total dumping and thedumping margin, instead of supplying information on a transaction-by-transactionbasis.
The defendant considers that the Community institutions complied with the criterialaid down by the Court in Case C-49/88 Al-Jubail Fertilizer and Saudi ArabianFertilizer v Council [1991] ECR I-3187, paragraph 17, and that the Commissionnotified the applicant of the method of calculating the anti-dumping duty in itsDisclosure Document. It also gave the six exporters included in the sampleinformation on all the calculations concerning them. That information could notbe divulged to the other undertakings, including the applicant, for reasons ofconfidentiality. Besides, that information would not have enabled thoseundertakings to provide meaningful comments. Moreover, the applicant had in anyevent had access to the non-confidential files open for inspection at theCommission's premises. The Community institutions could not supply further andbetter particulars of the dumping margin because no individual dumping marginhad been calculated. The applicant cannot complain that the institutions did notprovide it with any data concerning it. Such data were not used for the purposesof the contested provision, since the applicant was not included in the sample.

Findings of the Court
Article 7(4)(b) of the basic anti-dumping regulation provides that 'exporters (...)of the product subject to investigation (...) may request to be informed of theessential facts and considerations on the basis of which it is intended to recommendthe imposition of definitive duties (...). Such requests are to be addressed to theCommission in writing (Article 7(4)(c)(i)(aa)). They must be received, in caseswhere a provisional duty has been applied, not later than one month afterpublication of the imposition of that duty (Article 7(4)(c)(i)(cc)). Article 7(4)(c)(ii)and (iii) lay down the detailed rules in accordance with which the Commission maysupply the information sought and within what period it must do so.
According to established case-law, the rights of the defence are respected if theundertaking concerned has been afforded the opportunity during the administrativeprocedure of making known its views on the truth and relevance of the facts andcircumstances alleged and, where appropriate, on the documents used (see, forexample, the judgments of the Court of Justice in Case 85/76 Hoffmann-La Rochev Commission [1979] ECR 461, paragraph 11; Nakajima, cited above, paragraph108; and Al Jubail, cited above, paragraph 17; and the judgments of the Court ofFirst Instance in Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph59; Case T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 69; andSinochem, cited above, paragraph 75).
The Commission's duty to supply information must, however, always be balancedagainst the prohibition on revealing confidential information. Article 8(2) of thebasic anti-dumping regulation provides that neither the Community institutions northe Member States, nor their officials, are to reveal any information receivedpursuant to the regulation for which confidential treatment has been requested byits supplier, without specific permission from the supplier. The Communityinstitutions may consider certain information to be confidential if to disclose it islikely to have a significantly adverse effect upon the supplier or the source of suchinformation (Article 214 of the Treaty and Article 8(3) of the basic anti-dumpingregulation).
In this instance, the applicant is not justified in claiming that the non-confidentialinformation supplied by the Commission was inadequate. In the first place, in itsDisclosure Document the Commission provided information relating to the productconcerned, the Community industry, the sampling technique, normal value, exportprices, the dumping margin and injury to the Community. Second, not only are theCommunity institutions not required to calculate the dumping margin for each ofthe undertakings concerned and to impose a separate anti-dumping duty for eachof them (see the grounds above relating to the third plea), but they also enjoy awide discretion in selecting the undertakings included in the sample which is to beused to determine the dumping margin and the duty to be imposed. Consequently,the Community institutions have the right not to gather and use informationrelating to certain undertakings. Nor can they be required to communicate suchinformation which, ex hypothesi and all the more so in the circumstances of thiscase, has not been sought and therefore has not been used either. Third, theapplicant does not deny that it had access to the non-confidential files at theCommission's premises.
It follows that the fourth plea must also be rejected.

The fifth plea: incorrect method of calculating the dumping margins (infringement ofArticle 13(3) of the basic anti-dumping regulation) and abuse of powers with regardto the rate of anti-dumping duty imposed

Arguments of the parties
The applicant maintains that the defendant abused its discretion by unreasonablyand incorrectly increasing the dumping margin. By using the dumping margin ofthe company in the sample with the highest margin, the defendant artificiallyinflated the overall dumping margin and rate of duty of most of the othercompanies which replied to the questionnaire. For those companies, therefore, theamount of the duty exceeds the actual dumping margin, in breach of Article 13(3)of the basic anti-dumping regulation. According to the applicant, the defendant isnot entitled to include the 27% of exports attributable to companies which allegedlydid not cooperate in the calculation of the dumping margin, since the data providedby Chinese exporters were enough to constitute a representative sample. Thefigure of 27%, taken from an unknown source, is moreover without foundation. Ifit came from the Statistical Office of the European Communities (Eurostat), it isnoteworthy that the Commission has often complained of the inaccuracy of datasupplied by that body.
The defendant states that the figure for the total volume of bicycle exports fromthe People's Republic of China to the European Community during the period ofthe investigation was supplied by Eurostat, which was the only source of reliabledata. Information provided by the exporters covered 73% of that volume duringthe period of the investigation. The dumping margin for the other 27% wascalculated on the basis of the best information available, in accordance with Article7(7)(b) of the basic anti-dumping regulation. According to usual practice, therelevant data are those concerning the company with the highest dumping marginof those which cooperated.

Findings of the Court
Article 13(3) of the basic anti-dumping regulation provides that the amount of theanti-dumping duties may not exceed the dumping margin provisionally estimatedor finally established, and must be less if such lesser duty would be adequate toremove the injury.
In the present case, it is apparent from the provisional regulation (see the 37threcital in the preamble) and from the contested regulation (see the 50th recital inthe preamble) that the exports of the companies which replied to the Commission'squestionnaire accounted for 73% of the total exports of the People's Republic ofChina. The dumping margin for those companies was established on the basis ofthe weighted average of the margins for the various models of the six companiesincluded in the sample. As regards the exporters which did not reply to thequestionnaire and which accounted for the remaining 27% of exports, the dumpingmargin was calculated on the basis of Article 7(7)(b) of the basic anti-dumpingregulation. According to that provision, preliminary or final findings, affirmativeor negative, may be made on the basis of the facts available, in cases in which anyinterested party or third country refuses access to, or otherwise does not provide,necessary information within a reasonable period, or significantly impedes theinvestigation. The Commission took the view here that the best informationavailable was that relating to the company with the highest dumping marginincluded in the sample. The dumping margin for the People's Republic of China,expressed as a percentage of the cif (cost, insurance, freight) value so calculated,amounted to 30.6%.
It is clear from the above consideration of the third plea relating to refusal to grantindividual treatment to the various exporters concerned, first, that the course ofaction followed by the Community institutions was not contrary to the letter,purpose or spirit of the basic anti-dumping regulation and, secondly, that theapplicant did not satisfy the necessary conditions for the grant of individualtreatment, with the result that the institutions did not commit a manifest error in appraising the facts.
Furthermore, in connection with that course of action, the assumption is that as ageneral rule exporters in State-trading countries are not independent of Stateinfluence and that one of the aims of that policy is to prevent circumvention ofanti-dumping duties. If the institutions were not permitted to calculate thedumping margin by taking into account the exports of companies which had notcooperated in the investigation, the authorities in a State-trading country might,where an anti-dumping investigation was initiated, order the exporter with thehighest export prices to cooperate with the Community institutions and prohibit theother exporters from doing so. They could thus ensure that an anti-dumping dutyequal to the dumping margin established for the exporter with the lowest marginwould be applicable to all exporters involved in the dumping (see Climax Paper,cited above, paragraph 130).
Finally, as found in paragraph 107 above, it follows from Article 2(14)(b) of thebasic anti-dumping regulation that the Community institutions may establish aweighted average of the dumping margins and therefore a single dumping marginfor an entire country.
Furthermore, the Community institutions were right to base their decisions, inaccordance with Article 7(7)(b) of the basic anti-dumping regulation, on theEurostat statistics and on the information supplied by the companies which had replied to the Commission's questionnaire, since that information was the bestavailable in the circumstances, within the meaning of the abovementionedprovision.
In addition, both the calculation of the export price of producers who did notcooperate in the investigation and the calculation of the single dumping margin onthe basis of the information available presuppose an appraisal of complex economicsituations. Judicial review of such an appraisal must be limited to verifying whetherthe relevant procedural rules have been complied with, whether the facts on whichthe contested choice is based have been accurately stated and whether there hasbeen a manifest error of appraisal of the facts or a misuse of power (see NachiFujikoshi, cited above, paragraph 21; Gestetner Holdings, cited above, paragraph 63;and Climax Paper, cited above, paragraph 135).
In that regard, the provisional regulation (see the 37th recital in the preamble) andthe contested regulation (see the 50th recital in the preamble) make it clear thatthe information supplied by the companies which replied to the Commission'squestionnaire did not relate to total Chinese exports of the product in question butonly to 73% of the total exports from the People's Republic of China. The factremains that in calculating the proportion of exports to be attributed to theexporters which did not provide information, the Community institutions basedtheir decisions, pursuant to Article 7(7)(b) of the basic anti-dumping regulation, onEurostat's statistics concerning the total volume of imports of bicycles from thePeople's Republic of China into the Community and on the information suppliedby the companies which did reply to the Commission's questionnaire.
The applicant has merely challenged the calculation made by the Communityinstitutions but has not adduced the slightest evidence that it was incorrect. In anyevent, the Community institutions relied on the best information available.
So far as concerns the method of calculating the export prices of the producerswhich did not cooperate in the investigation, the Community institutions cannot becriticized for basing their calculations on the lowest prices in the sample, since theeffect of any other approach would be to encourage non-cooperation by exporters(see Climax Paper, cited above, paragraph 140). Moreover, there is nothing tosuggest that the calculation was in itself inaccurate or that the defendant committeda manifest error in appraising the facts.
For those reasons, the fifth plea must be rejected as unfounded.
It follows from all the preceding considerations that the application must bedismissed in its entirety.

Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the Council and the intervener EBMA have applied for costs andthe applicant has been unsuccessful, the latter must be ordered to bear its owncosts and to pay the costs incurred by the defendant and the intervener EBMA.
Article 87(4) of the Rules of Procedure provides that institutions which haveintervened in the proceedings are to bear their own costs. The Commission musttherefore bear its own costs.

On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)
hereby:
1. Dismisses the application;
2. Orders the applicant to bear its own costs and to pay those of the defendantand the intervener EBMA; 3. Orders the Commission to bear its own costs.

García-ValdecasasTiili

Azizi

Moura Ramos Jaeger

Delivered in open court in Luxembourg on 25 September 1997.

H. Jung

R. García-Valdecasas

Registrar

President

Summary Facts

II - 2

Procedure

II - 4

Forms of order sought

II - 5

Admissibility

II - 5

The first plea of inadmissibility

II - 5

Arguments of the parties

II - 6

Findings of the Court

II - 6

The second plea of inadmissibility

II - 7

Arguments of the parties

II - 7

Findings of the Court

II - 8

The third plea of inadmissibility

II - 9

Arguments of the parties

II - 9

Findings of the Court

II - 10

Substance

II - 10

The first plea: error in defining 'like products (breach of Article 2(12) of the basicanti-dumping regulation) and abuse of powers in determining the productssubject to the anti-dumping duty

II - 11

Arguments of the parties

II - 11

Findings of the Court

II - 12

The second plea: improper sampling technique (breach of Article 2(13) of the basicanti-dumping regulation)

II - 14

Arguments of the parties

II - 14

Findings of the Court

II - 15

The third plea: refusal to grant individual treatment to the various exportersconcerned (breach of Articles 2(5) and (9) and 13(3) of the basic anti-dumpingregulation and Article VI(2) of the GATT)

II - 17

Arguments of the parties

II - 17

Findings of the Court

II - 19

The fourth plea: refusal to disclose the method of calculation (breach of Article7(4)(b) and (c) of the basic anti-dumping regulation)

II - 22

Arguments of the parties

II - 22

Findings of the Court

II - 23

The fifth plea: incorrect method of calculating the dumping margins (infringementof Article 13(3) of the basic anti-dumping regulation) and abuse of powers withregard to the rate of anti-dumping duty imposed

II - 24

Arguments of the parties

II - 24

Findings of the Court

II - 25

Costs

II - 27

1: Language of the case: English.

ECR