T-170/94

v

Council of the European Union, represented by Bjarne Hoff-Nielsen and Jorge Monteiro, Legal Advisers, acting as Agents, assisted by Hans-Jürgen Rabe and Georg M. Berrisch, of the Hamburg and Brussels Bars, with an address for service in Luxembourg at the office of Alessandro Morbilli, Manager of the Legal D i m o r - ate, European Investment Bank, 100 Boulevard Konrad Adenauer, Kirchberg,

defendant,

* Language of the case: English.

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T H E C O U R T O F FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

composed of: R. Garcia-Valdecasas, President, V. Tiili, J. Azizi, R. M. Moura Ramos and M. Jaeger, Judges,

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SHANGHAI BICYCLE v COUNCIL

Registrar: A. Mair, Administrator,

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

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European Economic Community (OJ 1988 L 209, p. 1, 'the basic anti-dumping regulation'). Notice of initiation of the procedure was published on 12 October 1991 (OJ 1991 C 266, p. 6).

4 During this procedure the Commission sent a questionnaire to the non- Community producers and exporters. The applicant replied by letter of 17 Decem- ber 1991. Several other exporters also answered it.

5 O n 5 February 1992 the Commission requested further information concerning the types and models of bicycles exported to the Community. In its reply, the applicant enclosed documents altering its original answer. Those alterations con- cern the quantities of bicycles sold by the applicant and the value of the quantities sold, exports to the Community and further particulars of the models of bicycles exported to the Community.

6 O n 9 June 1992 a hearing was held by the Commission for various Taiwanese and Chinese exporters.

Procedure

1 1 The applicant lodged the application initiating these proceedings at the Registry of the Court of Justice on 23 December 1993, where it was registered as Case C-477/93.

i2 Council Decision 94/149/ECSC, EC of 7 March 1994 amending Decision 93/350/Euratom, ECSC, EEC amending Decision 88/591/ECSC, EEC, Euratom establishing 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 to exercise jurisdiction in actions brought by natural or legal persons pursuant to Articles 173, 175 and 178 of the EC Treaty relating to measures to protect trade in the case of dumping and subsidies. Accordingly, by order of 18 April 1994 the Court of Justice referred the case to the Court of First Instance, where it was reg- istered as Case T-l 70/94.

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i3 By order of 14 September 1994, the President of the Third Chamber of the Court of First Instance granted the Commission leave to intervene in support of the form of order sought by the defendant. By letter of 17 October 1994, the Commission stated that it did not intend to submit a statement in intervention.

Forms of order sought

18 The applicant claims that the Court should:

— annul Regulation N o 2474/93;

— order the defendant to pay the costs.

19 The defendant contends that the Court should:

— declare the application inadmissible;

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2i The other intervener, the Commission, contended at the hearing that the Court should:

— dismiss the application;

— order the applicant to pay the costs of intervention.

Admissibility

24 In addition, the defendant points out that, contrary to the requirements of Article 38(5) of the Rules of Procedure of the Court of Justice, the application was not accompanied by an instrument constituting or regulating the applicant company or a recent extract from the register of companies, firms or associations.

25 The applicant challenges the defendant and interveners' argument that it is not a legal person. For that purpose, it has annexed to the reply a copy of its commercial registration and notes that the 13 entities forming part of the group are production units and not separate companies. Furthermore, the explanations contained in its reply to the Commission's questionnaire concerning its holding in the capital of another company are perfectly clear and have been confirmed by that company.

Findings of the Court

26 The admissibility of an action for annulment brought by an entity under Article 173 of the Treaty depends primarily on the legal personality of the applicant. Under the Community judicial system, an applicant is a legal person if it has acquired legal personality in accordance with the law governing its constitution (Case 50/84 Bensider v Commission [1984] ECR 3991, paragraphs 7 and 8), or if it has been treated as an independent legal entity by the Community institutions (Case 175/73 Union Syndicale and Others v Council [1974] E C R 917, paragraphs 11 to 13, and Case 18/74 Syndicat General du Personnel v Commission [1974] ECR 933, paragraphs 7 to 9; Case T-l61/94 Sinochem Heilongjiang v Council [1996] ECR 11-695, paragraph 31).

28 In this case, the applicant is the principal company of the Shanghai Bicycle Cor- poration 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 the commercial register evidencing its registration by the Shanghai provincial authori- ties on 21 May 1993. According to that document, the applicant is a 'corporate legal person' owned by the People's Republic of China and possessing legal per- sonality under Chinese law. Since the fact that legal personality has been conferred by national law gives rise to the presumption that the conditions for acquiring legal personality for the purposes of the fourth subparagraph of Article 173 of the Treaty have been satisfied (see Bensider, cited above, paragraphs 7 and 8) and since the document showing commercial registration is evidence of legal personality under Chinese law, that document must be regarded as equivalent to an extract providing proof of the applicant's existence in law, within the meaning of the abovementioned Rules of Procedure of the Court of Justice and the Court of First Instance.

29 Furthermore, the applicant was treated as an independent legal entity by the Com- munity institutions at the time of the administrative procedure. The Commission accordingly corresponded with it on a regular basis and accepted it as an interlocu- tor at the hearing. That being so, the Community institutions cannot maintain that, in the judicial proceedings following the administrative procedure, the appli- cant is not an independent legal person (Sinocbem, cited above, paragraph 34).

32 They point out that, in countries which do not have a market economy, exporters are controlled by the State and that, in consequence, anti-dumping proceedings and regulations are directed against the latter and not against the various exporters. In their view, the applicant cannot rely on the judgment in Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraph 11, in which the Court held that an anti-dumping regulation, by analogy with a 'collective decision', is none the less of direct and individual concern to the producers specifi- cally named in it. N o r can it rely on the judgment in Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraphs 11 and 12, in which the undertakings, and not the State, were charged with dump- ing practices. According to the defendant, in so far as Regulation N o 2474/93 con- cerns exports from a State-trading country it does not have the character of a 'col- lective decision' against undertakings specifically named in the regulation. In addition, it contends that the applicant cannot plead the judgment in Allied Cor- poration v Commission either, since in this case it is the People's Republic of China, and not the applicant or other manufacturers and/or exporters, which has been charged with dumping practices.

33 The applicant takes the view that it is directly and individually concerned by the contested regulation. First, it is specifically named in the regulation. Second, it par- ticipated in every stage of the investigation. It maintains that it satisfies the condi- tions for admissibility set out by the Court of Justice in Allied Corporation v Commission, cited above. Although it had always been treated as a party to the

36 It has thus been acknowledged that measures imposing anti-dumping duties are liable to be of direct and individual concern to those producers and exporters who are able to establish that they were identified in the measures adopted by the Com- mission or the Council or were concerned by the preliminary investigations (see Allied Corporation v Commission, cited above, paragraph 12; Case 53/83 Allied Corporation and Others v Council [1985] ECR 1621, paragraph 4; and Extramet Industrie, cited above, paragraph 15) and, more generally, to any trader who can establish the existence of certain attributes which are peculiar to him and which, as regards the measure in question, differentiate him from all other traders (see Extramet Industrie, cited above, paragraphs 16 and 17, and Sinochem, cited above, paragraph 46).

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37 The Court is unable to endorse the defendant's argument that Joined Cases 239/82 and 275/82 Allied Corporation v Commission cannot be relied upon in this case on the ground that it is not the various Chinese manufacturers and exporters who have been charged with dumping practices but the People's Republic of China as a State. It is clear from Regulation N o 2474/93, and in particular from the 50th recital in the preamble thereto concerning the calculation of the dumping margin, that the dumping practices are attributed to Chinese undertakings exporting bicycles to the Community.

38 Moreover, the judicial protection afforded to individual undertakings concerned by an anti-dumping duty cannot be affected by the mere fact that the duty in question is a single duty and is imposed by reference to a State and not to individual under- takings.

The third plea of inadmissibility

Arguments of the parties

43 A c c o r d i n g t o t h e defendant, t h e applicant c a n n o t in a n y event seek a n n u l m e n t of t h e contested regulation in its entirety, b u t o n l y in so far as the applicant has n o t b e e n exempted f r o m the a n t i - d u m p i n g d u t y (Case C - l 7 4 / 8 7 Ricoh v Council [1992] E C R 1-1335, p a r a g r a p h 7).

44 The applicant points out that in Ricoh, cited above, the Japanese companies con- cerned had been subjected by the Council to anti-dumping duties calculated indi- vidually for each of them. In its view, the reasoning of the Court of Justice, to the effect that a company may seek annulment only of the provisions imposing a spe- cific anti-dumping duty on it, is irrelevant in the context of an anti-dumping pro- cedure against undertakings from a non-market economy country such as the Peo- ple's Republic of China. Consequently, the defendant's arguments revolve in a 'vicious circle', since the dumping practices in question are attributed to undertak- ings from a country with no market economy.

45 F u r t h e r m o r e , it is clear from t h e first page of t h e application that a n n u l m e n t of the c o n t e s t e d regulation is s o u g h t in so far as it affects t h e applicant.

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Substance

so The applicant relies on five pleas in law in support of its action. The first plea alleges infringement of Article 2(12) of the basic anti-dumping regulation, and abuse 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 basic anti-dumping regulation in that the defendant used an improper sampling tech- nique. In its third plea, the applicant alleges that, by refusing to grant it individual treatment, the Community institutions infringed Articles 2(5) and (9) and 13(3) of the basic anti-dumping regulation and Article VI(2) of the General Agreement on

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Tariffs and Trade ('GATT'). According to the fourth plea, the defendant infringed Article 7(4)(b) and (c) of the basic anti-dumping regulation by refusing to disclose the method used to calculate the dumping margin. In its fifth plea, the applicant alleges infringement of Article 13(3) of the basic anti-dumping regulation and abuse of discretion in that the anti-dumping duty imposed is said to be excessive.

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

54 M o r e o v e r , the applicant alleges that the defendant abused its discretion b y failing t o d e t e r m i n e t h e d u m p i n g margin and injury for each of the a b o v e m e n t i o n e d cat- egories of bicycle. U n l i k e the Taiwanese manufacturers and Chinese j o i n t - v e n t u r e u n d e r t a k i n g s w h i c h mainly e x p o r t m o u n t a i n bicycles t o t h e C o m m u n i t y and, t o a lesser extent, racing bicycles, the applicant e x p o r t s a large n u m b e r of children's bicycles, a few m o u n t a i n bicycles and virtually n o racing bicycles.

55 A s a p r e l i m i n a r y p o i n t , the defendant observes that t h e concept of 'like p r o d u c t ' in the basic a n t i - d u m p i n g regulation does n o t a l l o w a n y conclusion t o b e d r a w n as t o t h e p r o d u c t o r range of p r o d u c t s w h i c h m a y b e subject t o an a n t i - d u m p i n g inves- tigation, b u t is intended t o ensure that a p r o p e r price c o m p a r i s o n is m a d e in o r d e r t o establish the n o r m a l value and the d u m p i n g margin.

56 First of all, the defendant denies that it initially sought to distinguish between five categories of bicycle.

57 Second, it was correct in considering the whole range of bicycles to be a single product, because the distinctions between the various categories are blurred and because the various categories are in competition with one another on account of

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59 First, it follows in its view from the judgment of the Court of Justice in Case C-69/89 Nakajima v Council [1991] ECR 1-2069, paragraph 58, that in the absence of generally accepted criteria for grouping products into distinct categories, all products concerned could validly be treated as like products. Second, according to the Opinion of Advocate General Lenz in Gao Yao, cited above, the Community institutions enjoy a broad discretion with regard to the comparability of the prod- ucts concerned. Third, the Community institutions are entitled to treat some prod- ucts as a single 'like product' if the product segments are not clearly delimited, if some product types can be classified in several different segments and if there is competition between product types in adjoining segments and between product types in various distinct segments (Case C-179/87 Sharp Corporation v Council [1992] ECR 1-1635, paragraphs 26 to 28). The defendant submits that the Court's reasoning in that case applies to the present case as well. In accordance with that case-law, the burden of proving that the Community institutions made an error of assessment in determining 'like products' rests with the applicant. In the present case, however, the applicant has failed to establish any such error.

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60 The intervener EBMA shares the defendant's view that the distinction between bicycles is unclear, as various categories overlap. In addition, there is a very high degree of functional substitutability between the various types of bicycle, since it is very easy to remove, add or replace various components according to the custom- er's wishes.

(A Judicial review of such assessment must be limited to verifying whether the rel- evant 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 appraisal of the facts or a misuse of power (Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraph 21; Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR 1-781, paragraph 63; and Fer- chimex, cited above, paragraph 67).

65 This Court must therefore consider whether, in this instance, the Community institutions have exceeded their wide discretion (see paragraph 63 above) by treat- ing as 'Community production of the like product' bicycle production as a whole, all segments merged together.

69 None the less, it is clear from the documents before the Court and the explana- tions supplied by the parties at the hearing that those models are not clearly delim- ited, since some bicycles can be classified in several sub-categories in view of cer- tain of their characteristics and technical features. Furthermore, there is competition both between bicycles in adjoining sub-categories and between those classified in the various sub-categories.

70 Those differences between bicycles are not sufficient to establish that all those models have different functions or answer different needs. As is apparent, more- over, from the eighth recital in the preamble to the contested regulation, the fact that consumers tend to use multi-purpose bicycles and that it is possible to alter models by adding various components weakens, even eliminates entirely, the rel- evance of any distinction drawn between various categories of bicycles for the pur- poses of an anti-dumping procedure.

7i In any event, the applicant has not established that the institutions committed a manifest 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.

72 It follows that the first plea must be rejected.

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74 In the present case, according to the applicant, the sample used is not representa- tive. The defendant did not take into account data relating to the State-owned undertakings which replied to the questionnaire, with just one exception. Admit- tedly, that undertaking had the largest volume of exports, but its prices were much lower than those of the other exporters concerned. Since the number of transac- tions by State-owned undertakings was relatively low, the defendant, if it wished to adopt the sampling technique, could and should have set price bands or referred to the most frequently occurring transactions by all State-owned exporters. At the very least the defendant ought to have taken into consideration data relating to State-owned undertakings more representative than the company it used, espe- cially the data supplied by the applicant. The latter is the second largest State exporter operating on the market under consideration and sells at 'more normal prices'.

75 Furthermore, the applicant alleges that the defendant made a fundamental error in its sampling by treating Waimanly Bicycle Manufactory ('Waimanly') as a State- owned company, whereas it does not fall into that category of undertakings.

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76 According to the defendant, supported by the interveners, the conditions for the application of Article 2(13) of the basic anti-dumping regulation were satisfied. It notes, first, that the investigation concerned exports of bicycles from the People's Republic of China and not exports from individual Chinese companies. Second, pnces varied greatly and the number of transactions was very high. For each type of Chinese bicycle a corresponding model sold on the Taiwanese market had to be found in order to establish normal value, and a model sold on the Community market in order to assess undercutting. Extending the sample to other exporters and their types of bicycle would have significantly increased the number of trans- actions to be analysed and, consequently, prolonged the proceedings unreasonably.

so 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 or repre- sentative prices may be applied to establish normal value and export prices in cases in which a significant volume of transactions is involved'.

si In determining the normal value of goods, undertakings may be chosen on account of the degree to which they are representative as regards their exports to the Com- munity market (see, inter alia, Case 246/87 Continentale Produkten-Gesellschaft [1989] ECR 1151, paragraph 12).

82 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 prices which occur most frequently or the most representative prices of each exporter individually rather than the prices of all exporters taken together.

83 As the Community institutions point out, it is clear from the 15th recital in the preamble to the provisional regulation and the 28th recital in the preamble to the contested regulation that the undertakings concerned were selected on account of the degree to which they are representative in terms of exports to the Community market. In that regard, the applicant does not deny that the six companies included in the sample represented 88% of all exports to the Community made by the com- panies which replied to the questionnaire (28th recital in the preamble to the con- tested regulation).

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87 It follows that the second plea must be rejected.

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The third plea: refusal to grant individual treatment to the various exporters con- cerned {breach of Articles 2(5) and (9) and 13(3) of the basic anti-dumping regu- lation and Article VI(2) of the GATT)

Arguments of the parties

ss The applicant points out, as a preliminary matter, that as regards the imposition of anti-dumping duties, the Community institutions have for some years applied a policy which consists of refusing to grant individual treatment to undertakings in non-market economy countries (see the 33rd and 34th recitals in the preamble to the provisional regulation). Accordingly, a single anti-dumping duty is imposed in respect of all exporters in the country concerned and applied to all products exported to the European Community, regardless of the dumping margins estab- lished for each of the producers or exporters concerned. According to the appli- cant, the Commission and Council considered that the imposition of differentiated duties for undertakings in centrally planned economies would encourage the State to channel all exports through the company bearing the lowest anti-dumping duty.

92 In addition, the applicant maintains that even in the context of the disputed policy the Community institutions ought to have granted it individual treatment. In pre- vious cases concerning products from the People's Republic of China, the Com- munity institutions allowed individual treatment where the exporters in question had demonstrated that they were independent of the State in the conduct of their export policy and in establishing their export prices (16th recital in the preamble to the contested regulation).

93 So far as concerns precisely its independence from the State, the applicant consid- ers that it meets the conditions laid down by the Community institutions in a Commission memorandum of 1 December 1992 specifying the Une of conduct it intended to adopt with regard to dumping by joint ventures in non-market economy countries. The applicant claims that it is entirely free to sell its products abroad without any authorization and that generally it sells direct to unrelated importers established in the Community on terms which are freely negotiated.

94 In any event, it is for the Community institutions to prove the existence of State control of exports and not simply to assume it. In the circumstances, they have not adduced any evidence to that effect.

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95 Last, the applicant claims that the People's Republic of China is not a State-trading country but a 'socialist market economy' which, while it does not permit compa- nies' snares to be owned by individuals, does require undertakings to be respon- sible for their profits and losses. In this respect the applicant refers to several articles of economic literature which attest that the Chinese economy is in the pro- cess of being transformed into a market economy. The fact that the Chinese State, like any other State, can at any time change its legislation does not call into ques- tion the independence of the undertakings vis-à-vis the State.

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SHANGHAI BICYCLE v COUNCIL

99 Even if State control in the People's Republic of China has been reduced in certain sectors, Chinese export companies such as the applicant are still wholly owned and controlled by the State and cannot, therefore, be regarded as independent compa- nies comparable to those operating in a market economy. Accordingly, the State may at any time withdraw from any exporter authorization to engage in export 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 the other, certain practices take precedence over the law.

Findings of the Court

100 There is no provision in the basic anti-dumping regulation which prohibits the imposition of a single anti-dumping duty for State-trading countries (Climax Paper, cited above, paragraph 92).

101 Article 2(5) merely indicates the criteria on the basis of which normal value is to be determined in the case of imports from non-market economy countries. Article 2(9) concerning the comparison of normal value with export price concerns only the comparability of prices and the adjustments that are intended to take account of the differences affecting such comparability.

ios Finally, Article 13(2) provides that an anti-dumping regulation is to 'indicate in particular the amount and type of duty imposed, the product covered, the country of origin or export, the name of the supplier, if practicable, and the reasons on which the regulation is based'. In that regard (see Climax Paper, cited above, para- graph 93), although it does indeed follow from both the scheme and purpose of 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- dumping duty for each supplier, the wording of that provision nevertheless speci- fies that the name is to be indicated only 'if practicable'. The legislature has therefore expressly limited the obligation to indicate the name of the supplier, and thus the obligation to fix a specific anti-dumping duty for each supplier, strictly to those cases where such specific particulars are practicable.

loe 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 each supplier if, in order to avoid the risk of circumventing anti-dumping duties, it is necessary to impose a single duty for an entire country. That is particularly so where, in the case of a State-trading country, the Community institutions have examined the situation of the exporters concerned and are not convinced that those exporters are acting independently of the State (see Climax Paper, cited above, paragraph 94).

io? The question whether an exporter in a State-trading country is acting with suffi- cient independence of the State for individual treatment to be granted to him involves an assessment of complex factual situations which are at one and the same time of an economic, political and legal nature. In that regard, it is established case- law that the institutions enjoy a wide discretion in regard to the assessment of complex economic matters (see Ferchimex, cited above, paragraph 131), and that judicial review of such an assessment must be limited to verifying whether the rel- evant 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 appraisal of the facts or a misuse of power (see the judgments

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cited in paragraph 64 above: Nachi Fujikoshi, paragraph 21, and Gestetner Hold- ings, paragraph 63). The position is the same in regard to factual situations of a legal and political nature in the country concerned which the Community institu- tions must assess in order to determine whether an exporter is acting with a sufficient degree of independence from the authorities of a State-trading country in order to receive individual treatment (see Climax Paper, cited above, para- graph 98).

no In the circumstances of the case, the defendant's arguments — set out in the 17th to 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 basic anti-dumping regulation does not make individual treatment mandatory; more- over, the Commission's inability, in the present situation, to verify the Chinese exporters' statements on the spot would seem plausible.

us It follows that the applicant has not succeeded in showing that it really was inde- pendent of the influence of the Chinese authorities. The Community institutions have not therefore committed a manifest error in appraising the facts.

ne It follows that the third plea must be rejected as unfounded.

The fourth plea: refusal to disclose the method of calaãation (breach of Article 7(4)(b) and (c) of the basic anti-dumping reguUtion)

Arguments of the parties

uz The applicant complains that the Commission has failed to fulfil its duty of dis- closure under Article 7(4)(b) of the basic anti-dumping regulation, inasmuch as the

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us The defendant considers that the Community institutions complied with the cri- teria laid down by the Court in Case C-49/88 Al-Jubail Fertilizer and Saudi Ara- bian Fertilizer v Council [1991] E C R 1-3187, paragraph 17, and that the Commis- sion notified the applicant of the method of calculating the anti-dumping duty in its Disclosure Document. It also gave the six exporters included in the sample information on all the calculations concerning them. That information could not be divulged to the other undertakings, including the applicant, for reasons of con- fidentiality. Besides, that information would not have enabled those undertakings to provide meaningful comments. Moreover, the applicant had in any event had access to the non-confidential files open for inspection at the Commission's pre- mises. The Community institutions could not supply further and better particulars of the dumping margin because no individual dumping margin had been calcu- lated. The applicant cannot complain that the institutions did not provide it with any data concerning it. Such data were not used for the purposes of the contested provision, since the applicant was not included in the sample.

Findings of the Court

119 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 the essen- tial facts and considerations on the basis of which it is intended to recommend the imposition of definitive duties (...)'. Such requests are to be addressed to the Com- mission in writing (Article 7(4)(c)(i)(aa)). They must be received, in cases where a

122 In this instance, the applicant is not justified in claiming that the non-confidential information supplied by the Commission was inadequate. In the first place, in its Disclosure Document the Commission provided information relating to the prod-

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uct concerned, the Community industry, the sampling technique, normal value, export prices, the dumping margin and injury to the Community. Second, not only are the Community institutions not required to calculate the dumping margin for each of the undertakings concerned and to impose a separate anti-dumping duty for each of them (see the grounds above relating to the third plea), but they also enjoy a wide discretion in selecting the undertakings included in the sample which is to be used to determine the dumping margin and the duty to be imposed. Con- sequently, the Community institutions have the right not to gather and use infor- mation relating to certain undertakings. N o r can they be required to communicate such information which, ex hypothesi and all the more so in the circumstances of this case, has not been sought and therefore has not been used either. Third, the applicant does not deny that it had access to the non-confidential files at the Com- mission's premises.

123 It follows that the fourth plea must also be rejected.

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

Findings of the Court

126 Article 13(3) of the basic anti-dumping regulation provides that the amount of the anti-dumping duties may not exceed the dumping margin provisionally estimated or finally established, and must be less if such lesser duty would be adequate to remove the injury.

127 In the present case, it is apparent from the provisional regulation (see the 37th recital in the preamble) and from the contested regulation (see the 50th recital in the preamble) that the exports of the companies which replied to the Commis- sion's questionnaire accounted for 73% of the total exports of the People's Repub-

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129 Furthermore, in connection with that course of action, the assumption is that as a general rule exporters in State-trading countries are not independent of State influ- ence and that one of the aims of that policy is to prevent circumvention of anti- dumping duties. If the institutions were not permitted to calculate the dumping margin by taking into account the exports of companies which had not cooperated in the investigation, the authorities in a State-trading country might, where an anti- dumping investigation was initiated, order the exporter with the highest export prices to cooperate with the Community institutions and prohibit the other exporters from doing so. They could thus ensure that an anti-dumping duty equal to the dumping margin established for the exporter with the lowest margin would be applicable to all exporters involved in the dumping (see Climax Paper, cited above, paragraph 130).

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130 Finally, as found in paragraph 107 above, it follows from Article 2(14)(b) of the basic anti-dumping regulation that the Community institutions may establish a weighted average of the dumping margins and therefore a single dumping margin for an entire country.

131 Furthermore, the Community institutions were right to base their decisions, in accordance with Article 7(7)(b) of the basic anti-dumping regulation, on the Euro- stat statistics and on the information supplied by the companies which had replied to the Commission's questionnaire, since that information was the best available in the circumstances, within the meaning of the abovementioned provision.

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JUDGMENT OF 25. 9. 1997 — CASE T-170/94

134 The applicant has merely challenged the calculation made by the Community insti- tutions but has not adduced the slightest evidence that it was incorrect. In any event, the Community institutions relied on the best information available.

ns So far as concerns the method of calculating the export prices of the producers which did not cooperate in the investigation, the Community institutions cannot be criticized for basing their calculations on the lowest prices in the sample, since the effect of any other approach would be to encourage non-cooperation by exporters (see Climax Paper, cited above, paragraph 140). Moreover, there is noth- ing to suggest that the calculation was in itself inaccurate or that the defendant committed a manifest error in appraising the facts.

136 For those reasons, the fifth plea must be rejected as unfounded.

137 It follows from all the preceding considerations that the application must be dis- missed in its entirety.

T H E C O U R T O F 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 defendant and the intervener EBMA;

3. Orders the Commission to bear its own costs.

Garcia-Valdecasas Tiili Azizi

Summary

Facts II-1391

Procedure I I - 1393

Forms of order sought H - 1395

Admissibility II - 1396

The first plea of inadmissibility II - 1396

Arguments of the parties II - 1402

Findings of the Court 11-1403

Substance II - I 4 0 3

The first plea: error in defining 'like products' (breach of Article 2(12) of the basic anti- dumping regulation) and abuse of powers in determining the products subject to the anti- dumping duty II - 1404

Arguments of the parties II - 1404

Findings of the Court II - 1407

Arguments of the parties II -1414

Findings of the Court II -1417

The fourth plea: refusal to disclose the method of calculation (breach of Article 7(4)(b)

and (c) of the basic anti-dumping regulation) II - 1421

Arguments of the parties II - 1421

Findings of the Court I I . 1422