Corte di giustizia UE n. 172/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 28 November 2013 ( * ) (Appeal – Dumping – [OSCURATO:PERSONA] (EC) No 172/2008 − Imports of ferro-silicon originating in China, Egypt, Kazakhstan, the former [OSCURATO:PERSONA] of Macedonia and Russia − [OSCURATO:PERSONA] (EC) No 384/96 − [OSCURATO:PERSONA] 2(9) – Export price – [OSCURATO:PERSONA] 3(5) and (6) – Determination of injury − [OSCURATO:PERSONA] 6(7) – Investigation − [OSCURATO:PERSONA] 8(4) – Offer of undertakings – Non-confidential version − [OSCURATO:PERSONA] 20(1) – Disclosure − [OSCURATO:PERSONA] and [OSCURATO:PERSONA] between the [OSCURATO:PERSONA] and their [OSCURATO:PERSONA], of the one part, and the former [OSCURATO:PERSONA] of Macedonia, of the other part) [OSCURATO:PERSONA] C‑13/12 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 3 January 2012, [OSCURATO:PERSONA] OAO (CHEMK), established in [OSCURATO:PERSONA] (Russia), [OSCURATO:PERSONA] OAO (KF), established in Novokuznetsk (Russia), represented by P. [OSCURATO:PERSONA], advocaat, and N. Mizulin, avocat, appellants, the other parties to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by J.-P. Hix, acting as Agent, assisted by G. Berrisch, Rechtsanwalt, and N. Chesaites, Barrister, defendant at first instance, [OSCURATO:PERSONA], represented by H. van Vliet and M. França, acting as Agents, with an address for service in Luxembourg, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of R. Silva de Lapuerta, President of the [OSCURATO:PERSONA], J.L. da [OSCURATO:PERSONA], G. Arestis (Rapporteur), J.‑C. Bonichot and A. Arabadjiev, Judges, [OSCURATO:PERSONA]: P. Mengozzi, Registrar: L. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the written procedure and further to the hearing on 16 January 2013, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By their appeal, [OSCURATO:PERSONA] OAO (CHEMK) and [OSCURATO:PERSONA] OAO (KF) (together, ‘CHEMK and KF’) seek to have set aside the judgment of the [OSCURATO:PERSONA] of 25 October 2011 in [OSCURATO:PERSONA] T‑190/08 CHEMK and KF v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑7359 (‘the judgment under appeal’), in which the [OSCURATO:PERSONA] dismissed their action for annulment of [OSCURATO:PERSONA] (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the [OSCURATO:PERSONA] of China, Egypt, Kazakhstan, the former [OSCURATO:PERSONA] of Macedonia and Russia (OJ 2008 L 55, p. 6) (‘the regulation at issue’), in so far as it concerns CHEMK and KF. Legal context [OSCURATO:PERSONA] law 2 [OSCURATO:PERSONA] (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the [OSCURATO:PERSONA] (OJ 1996 L 56, p. 1) was replaced and codified by [OSCURATO:PERSONA] (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the [OSCURATO:PERSONA] (OJ 2009 L 343, p. 51; corrigendum in OJ 2010 L 7, p. 22). However, having regard to the date of adoption of the regulation at issue, the dispute must be examined on the basis of [OSCURATO:PERSONA] 384/96 (‘the basic regulation’). 3 [OSCURATO:PERSONA] 2(9) of the basic regulation provides as follows: ‘In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis. In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the [OSCURATO:PERSONA] frontier level. The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either in or outside the [OSCURATO:PERSONA], which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs; customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods; and a reasonable margin for selling, general and administrative costs and profit.’ 4 Paragraphs (5) to (7) of [OSCURATO:PERSONA] 3 of the basic regulation, relating to the determination of injury, provide as follows: ‘5.      The examination of the impact of the dumped imports on the [OSCURATO:PERSONA] industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilisation of capacity; factors affecting [OSCURATO:PERSONA] prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance. 6.      It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this [OSCURATO:PERSONA]. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the [OSCURATO:PERSONA] industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material. 7.      Known factors other than the dumped imports which at the same time are injuring the [OSCURATO:PERSONA] industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third‑country and [OSCURATO:PERSONA] producers, developments in technology and the export performance and productivity of the [OSCURATO:PERSONA] industry.’ 5 According to [OSCURATO:PERSONA] 6(7) of the basic regulation: ‘The complainants, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with [OSCURATO:PERSONA] 5(10), as well as the representatives of the exporting country may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the [OSCURATO:PERSONA] or its [OSCURATO:PERSONA], which is relevant to the presentation of their cases and not confidential within the meaning of [OSCURATO:PERSONA] 19, and is used in the investigation. Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response.’ 6 [OSCURATO:PERSONA] 8(4) of the basic regulation: ‘Parties which offer an undertaking shall be required to provide a non-confidential version of such undertaking, so that it may be made available to interested parties to the investigation.’ 7 According to paragraph (1) of [OSCURATO:PERSONA] 20 of the basic regulation, entitled ‘Disclosure’: ‘The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.’ The SAA 8 [OSCURATO:PERSONA] and [OSCURATO:PERSONA] between the [OSCURATO:PERSONA] and their [OSCURATO:PERSONA], of the one part, and the former [OSCURATO:PERSONA] of Macedonia, of the other part (OJ 2004 L 84, p. 13; ‘the SAA’), was drawn up in order to provide an appropriate framework for political dialogue and to allow the development of close political relations between the Parties. The purpose of the agreement was also to promote harmonious economic relations and develop gradually a free trade area between the [OSCURATO:PERSONA] and the former [OSCURATO:PERSONA] of Macedonia. 9 [OSCURATO:PERSONA] 36 of the SAA, entitled ‘Dumping’: ‘1.      If one of the Parties finds that dumping is taking place in trade with the other Party within the meaning of [OSCURATO:PERSONA] VI [of the [OSCURATO:PERSONA] on Tariffs and [OSCURATO:PERSONA] (GATT) 1994, which is part of the [OSCURATO:PERSONA] establishing the [OSCURATO:PERSONA] (WTO), signed in Marrakesh on 15 April 1994 and approved by [OSCURATO:PERSONA] 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the [OSCURATO:PERSONA], as regards matters within its competence, of the agreements reached in the [OSCURATO:PERSONA] multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (“the GATT 1994”)], it may take appropriate measures against this practice in accordance with the [OSCURATO:PERSONA] on implementation of [OSCURATO:PERSONA] VI of the GATT 1994 and its own related internal legislation. 2.      As regards paragraph 1 of this [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] shall be informed of the dumping case as soon as the authorities of the importing Party have initiated an investigation. When no end has been put to the dumping within the meaning of [OSCURATO:PERSONA] VI of the GATT [1994] or no other satisfactory solution has been reached within 30 days of the matter being referred to the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], the importing Party may adopt the appropriate measures. ‘ Background to the dispute and the regulation at issue 10 The background to the dispute is set out as follows at paragraphs 1, 2, 6 and 12 of the judgment under appeal: ‘1      The applicants, [CHEMK and KF], are two companies established in Russia and active in the production of ferro-silicon. At the material time, the sales of those two companies in the [OSCURATO:PERSONA] were effected through related companies. 2      Following a complaint filed on 16 October 2006 by Euroalliages (the [OSCURATO:PERSONA] of the Ferro-[OSCURATO:PERSONA]), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] initiated an anti-dumping proceeding, concerning imports of ferro-silicon originating in the former [OSCURATO:PERSONA] of Macedonia, China, Egypt, Kazakhstan and Russia, pursuant to [the basic regulation] … ... 6      On 29 August 2007, the [OSCURATO:PERSONA] published [OSCURATO:PERSONA] (EC) No 994/2007 of 28 August 2007 imposing a provisional anti-dumping duty on imports of ferro-silicon originating in the [OSCURATO:PERSONA] of China, Egypt, Kazakhstan, the former [OSCURATO:PERSONA] of Macedonia and Russia (OJ 2007 L 223, p. 1; “the provisional regulation”). The provisional regulation imposed inter alia a provisional anti-dumping duty, the rate of which was set at 22.8% for the applicants’ products. ... 12      On 25 February 2008, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] adopted the [regulation at issue]. [OSCURATO:PERSONA] 1 of the [regulation at issue], the rate of the definitive anti-dumping duty applicable to the net, free-at-[OSCURATO:PERSONA]-frontier price, before duty, was set at 22.7% for the products manufactured by [CHEMK and KF].’ Procedure before the [OSCURATO:PERSONA] and judgment under appeal 11 In support of their action at first instance, CHEMK and KF raised five pleas in law, alleging, respectively: –        errors in the use of a notional profit margin for the construction of the export price; –        errors in relation to the price undertaking offered by [OSCURATO:PERSONA], a producer of ferro-silicon established in the former [OSCURATO:PERSONA] of Macedonia (‘[OSCURATO:PERSONA]’); –        a manifest error of assessment and breach of [OSCURATO:PERSONA] 3(6) of the basic regulation concerning the determination of injury; –        a manifest error of assessment concerning the analysis of the causal link between the dumped imports and the injury; and –        infringement of the rights of defence of CHEMK and KF as regards the disclosure of data relating to the initiation of the anti-dumping proceeding. 12 As none of the appellants’ pleas in support of their action was upheld, the [OSCURATO:PERSONA] dismissed that action in its entirety. Forms of order sought 13 By their appeal, CHEMK and KF claim that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal and give its own ruling on the dispute; and –        order the [OSCURATO:PERSONA] to pay the costs of both sets of proceedings. 14 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        primarily, dismiss the appeal; –        in the alternative, refer the case back to the [OSCURATO:PERSONA]; –        in the further alternative, dismiss the action; and –        order CHEMK and KF to pay the costs. 15 [OSCURATO:PERSONA] contends that the appeal should be dismissed and that CHEMK and KF should be ordered to pay the costs. The appeal First ground of appeal: error of law in the calculation of the export price on the basis of a notional profit margin Arguments of the parties 16 CHEMK and KF claim that the [OSCURATO:PERSONA] erred in law in its examination of the second part of the first plea in law which they raised in support of their action, alleging breach of the obligation to state reasons. 17 CHEMK and KF claim that the [OSCURATO:PERSONA], in paragraphs 47, 48, 54 and 55 of the judgment under appeal, distorted the clear sense of the evidence put before it. 18 In any event, they argue, the [OSCURATO:PERSONA] failed to state reasons for its judgment to the requisite legal standard in relation to the calculation of the export price on the basis of a notional profit margin. 19 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 20 It must be noted that, as follows from [OSCURATO:PERSONA] 170(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, new pleas in law not contained in the original application may not be raised in an appeal. 21 In the present case, for the first time before the [OSCURATO:PERSONA] of Justice, CHEMK and KF contest the reasonableness of the calculation of the related importer’s profit margin on the basis of data relating to Interalloys rather than on that of data relating to Globelloys. All of the grounds relied on and relating to the calculation of the export price on the basis of the notional profit margin are based on the premiss that the institutions wrongly took into account the situation of Interalloys rather than that of Globelloys. Therefore, these are new pleas and are on that ground inadmissible in the context of the present appeal. 22 The first ground of appeal raised by CHEMK and KF must therefore be rejected as being inadmissible in its entirety. [OSCURATO:PERSONA] ground of appeal: breach of [OSCURATO:PERSONA] 36(2) of the SAA Arguments of the parties 23 CHEMK and KF claim that the [OSCURATO:PERSONA] erred in law in finding at paragraphs 67 to 69 and 72 of the judgment under appeal that the difference in treatment which they suffered vis-à-vis [OSCURATO:PERSONA] was legally justified on the basis of [OSCURATO:PERSONA] 36(2) of the SAA. At first instance, CHEMK and KF claimed that the [OSCURATO:PERSONA] had acted in breach of the principle of equal treatment by forwarding the provisional disclosure document to [OSCURATO:PERSONA], thus enabling it to make an offer of a price undertaking. CHEMK and KF argued before the [OSCURATO:PERSONA] that the [OSCURATO:PERSONA] did not send that document to them at the same time as it sent it to [OSCURATO:PERSONA], even though they were in the same situation as [OSCURATO:PERSONA]. According to CHEMK and KF, the wording of [OSCURATO:PERSONA] 36(2) of the SAA does not impose a requirement for exchanges between the [OSCURATO:PERSONA] and the former [OSCURATO:PERSONA] of Macedonia before provisional measures are imposed. 24 Moreover, it is not apparent from the wording of that article that the [OSCURATO:PERSONA] is required to pass information on to the exporting producers from the former [OSCURATO:PERSONA] of Macedonia, unlike the obligation imposed on the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] set up by the SAA. According to CHEMK and KF, the [OSCURATO:PERSONA] has already held, in [OSCURATO:PERSONA] T‑33/98 and T‑34/98 Petrotub and Republica v [OSCURATO:PERSONA] [1999] [OSCURATO:PERSONA]‑3837, that [OSCURATO:PERSONA] 36(2) of the SAA does not impose on the [OSCURATO:PERSONA] an obligation to refer a matter to the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] before adopting a provisional regulation. The appellants claim that, in any event, none of the provisions relied on by the [OSCURATO:PERSONA] in support of its decision could contravene the basic regulation, which provides in [OSCURATO:PERSONA] 20(1) that information may be disclosed to the parties only after provisional measures have been imposed. 25 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], takes issue with the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 26 [OSCURATO:PERSONA] found, in paragraph 68 of the judgment under appeal, that, under [OSCURATO:PERSONA] 36(2) of the SAA, the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], set up under the SAA, must be informed of the dumping case as soon as the anti-dumping investigation has been initiated. It must be stated, first, that this obligation is consistent with the aim of that agreement to promote harmonious economic relations between the [OSCURATO:PERSONA] and the former [OSCURATO:PERSONA] of Macedonia and to develop gradually a free trade area between them. 27 Secondly, it is clear from the actual wording of [OSCURATO:PERSONA] 36(2) of the SAA that the contracting parties are required to search actively between themselves for a ‘satisfactory solution’ to the dumping. Therefore, even though that article does not expressly provide that the parties, other than the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], must be notified of the investigation and the relevant information, the [OSCURATO:PERSONA] properly concluded, in paragraph 68 of the judgment under appeal, that the essential considerations and facts on the basis of which the institutions propose to recommend the imposition of provisional anti-dumping measures must be disclosed to the exporting producers. [OSCURATO:PERSONA] was therefore also right to find that, without such disclosure, no satisfactory solution could be envisaged. 28 In those circumstances, the second ground of appeal raised by CHEMK and KF must be rejected as being unfounded in its entirety. Third ground of appeal: infringement of the obligations under Articles 6(7) and 8(4) of the basic regulation Arguments of the parties 29 CHEMK and KF challenge the [OSCURATO:PERSONA] finding that, although the parties which offered a price undertaking are required to provide a non-confidential version of that undertaking, Articles 6(7) and 8(4) of the basic regulation do not impose any obligation on the institutions regarding the precise time at which that document must be added to the non-confidential file. 30 According to CHEMK and KF, those articles of the basic regulation are an expression of the principle of the rights of the defence, with the result that, even if they do not expressly lay down the precise time at which the institutions must add the documents to the non-confidential file, in the light of that principle those articles require the non-confidential data to be added immediately to the [OSCURATO:PERSONA]’s non-confidential file at a time when they serve the rights of defence of the parties concerned. 31 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 32 By this ground of appeal, CHEMK and KF claim that, in the light of the principle of the rights of the defence, Articles 6(7) and 8(4) of the basic regulation require that the various non-confidential documents, in this case the non-confidential version of the undertaking offered, be added to the non-confidential file as soon as they have been received. If this is not done, they argue, the parties concerned cannot effectively defend their interests. 33 In that regard, it must be stated that, in paragraph 85 of the judgment under appeal, the [OSCURATO:PERSONA] rightly concluded that nothing in the wording of Articles 6(7) and 8(4) of the basic regulation supported the appellants’ arguments. Indeed, those provisions make no mention – and, a fortiori , impose no obligation – as regards the time at which a copy of the price undertaking must be added to the non-confidential file of the proceeding. 34 Those articles in the basic regulation enable the parties concerned by the antidumping investigation to have access to the information made available by other parties, provided that such information is relevant to the protection of their interests. However, those provisions do not impose any obligation as to the point in time at which the institutions are required to add, in the present case, a copy of the price undertaking to the non-confidential file so that the parties concerned may consult it. Consequently, the [OSCURATO:PERSONA] interpretation in question is not vitiated by any error of law. 35 In those circumstances, the third ground of appeal raised by CHEMK and KF must be rejected as being unfounded. Fourth ground of appeal: infringement of the principles of sound administration and of the rights of the defence Arguments of the parties 36 According to CHEMK and KF, the [OSCURATO:PERSONA] erred in rejecting their claim that the institutions lacked impartiality in relation to them, contrary to the principle of sound administration. Although the [OSCURATO:PERSONA] found that [OSCURATO:PERSONA]’s offer of an undertaking had been added late to the non-confidential file, it failed to draw any adverse inferences from the [OSCURATO:PERSONA]’s failure to fulfil its obligations. That omission constitutes a serious breach of procedure in that it distorts the evidence and infringes the principles of sound administration and of the rights of the defence. 37 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 38 At the outset, it should be noted that, in paragraph 87 of the judgment under appeal, the [OSCURATO:PERSONA] stated that an irregularity, such as that relied upon by CHEMK and KF, cannot lead to annulment of the regulation at issue unless that irregularity is actually capable of affecting their rights of defence, and, hence, the content of that regulation. 39 [OSCURATO:PERSONA] went on to find, at paragraph 88 of the judgment under appeal, that CHEMK and KF had not put forward any argument to show that the price undertaking that they could have offered after inspecting [OSCURATO:PERSONA]’s undertaking and the provisional disclosure document would either have differed from the undertaking that they offered after the disclosure of the definitive disclosure document or have had a better chance of being accepted by the [OSCURATO:PERSONA]. From this the [OSCURATO:PERSONA] concluded that the appellants had therefore not demonstrated that, in the absence of the alleged irregularities, the content of the regulation at issue would have been different so far as they were concerned. 40 Similarly, in order to respond to the appellants’ claim that their rights of defence were infringed, inasmuch as [OSCURATO:PERSONA]’s undertaking had not been added to the non-confidential file in good time, that is to say, before 3 September 2007, the [OSCURATO:PERSONA] found, at paragraph 99 of the judgment under appeal, that CHEMK and KF had not demonstrated that their own undertaking would, after they had inspected [OSCURATO:PERSONA]’s undertaking, in fact have been different, and therefore would have had a better chance of being accepted by the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] inferred from this that CHEMK and KF would not have been better able to defend their interests if they had had access to the non-confidential version of [OSCURATO:PERSONA]’s undertaking before the provisional regulation was adopted. 41 Contrary to what the appellants claim, it does not follow from any of those considerations that the [OSCURATO:PERSONA] found any irregularity attributable to the institutions in this case relating to the precise time at which [OSCURATO:PERSONA]’s undertaking was added to the non-confidential file. 42 In those circumstances, the fourth ground of appeal raised by CHEMK and KF must be rejected as being unfounded. Fifth ground of appeal: distortion of the evidence Arguments of the parties 43 CHEMK and KF claim that, if the institutions had observed the principle of equal treatment and/or had at least provided, within the time-limits, the version of [OSCURATO:PERSONA]’s undertaking that was added to the non-confidential file, the appellants would also have been in a position to offer a price undertaking and thereby avoid the provisional anti-dumping duties. 44 In particular, CHEMK and KF contest the [OSCURATO:PERSONA] finding in paragraph 75 of the judgment under appeal. They claim that the [OSCURATO:PERSONA] wrongly found that their offer of a price undertaking had been rejected in recital 132 in the preamble to the regulation at issue. It was in fact recital 131 in the preamble to that regulation that deals with the appellants’ offer. According to CHEMK and KF, it is clear, in particular from recital 131, that, because of considerable volatility in prices, the product concerned was no longer suitable for the acceptance of a price undertaking at the definitive stage, which implies that it might have been suitable beforehand. 45 CHEMK and KF claim in this regard that, at the provisional stage, such volatility in prices did not exist and that the product concerned was indeed suitable for a price undertaking. It follows that CHEMK and KF were not required to put forward any argument to show that the price undertaking which they could have offered earlier would have differed in content from the undertaking which they offered after the definitive disclosure document had been notified. CHEMK and KF accordingly claim that, contrary to the [OSCURATO:PERSONA] findings in paragraphs 73, 75, 87, 88, 99 and 100 of the judgment under appeal, they have demonstrated that the finding of discriminatory treatment in favour of [OSCURATO:PERSONA] and/or the breach of Articles 6(7) and 8(4) of the basic regulation and of the rights of the defence were capable of justifying annulment of the regulation at issue. 46 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 47 First, at paragraphs 73 and 74 of the judgment under appeal, the [OSCURATO:PERSONA] found, for the sake of completeness, that CHEMK and KF had not proved to the requisite legal standard that the finding of ‘discriminatory treatment’ with regard to disclosure of the provisional disclosure document could have affected the lawfulness of the regulation at issue, thereby justifying its annulment. [OSCURATO:PERSONA] key finding, in paragraph 72 of the judgment under appeal, that there was a legislative basis for the difference in treatment between [OSCURATO:PERSONA] and the appellants, namely [OSCURATO:PERSONA] 36(2) of the SAA, was unsuccessfully challenged in the second ground of the present appeal, and that ground was rejected as unfounded in paragraph 28 above. 48 Secondly, at paragraphs 87 and 88 of the judgment under appeal, the [OSCURATO:PERSONA] also found that a procedural irregularity, such as the one relied on by CHEMK and KF, that is to say, the late addition of the non-confidential version of [OSCURATO:PERSONA]’s undertaking to the file, could not lead to annulment of the regulation at issue, since CHEMP and KF had not put forward any argument to show that that regulation would have differed in content. More specifically, the [OSCURATO:PERSONA] found that CHEMK and KF had not demonstrated that the price undertaking that they could have offered earlier, after inspecting [OSCURATO:PERSONA]’s undertaking and the provisional disclosure document, would have differed in content from the undertaking that they offered after the disclosure of the definitive disclosure document and have had a better chance of being accepted by the [OSCURATO:PERSONA]. 49 In this regard, the [OSCURATO:PERSONA] main reasoning, in paragraph 85 of the judgment under appeal, was unsuccessfully challenged by the fourth ground of the present appeal. It follows from paragraph 35 above that that reasoning remains intact, as does the conclusion reached by the [OSCURATO:PERSONA] in paragraph 86 of the judgment under appeal. 50 Thirdly, concerning the [OSCURATO:PERSONA] reasoning, in paragraph 99 of the judgment under appeal, that CHEMK and KF would not have been better able to defend their interests if they had had access to [OSCURATO:PERSONA]’s undertaking before the adoption of the provisional regulation, it follows from paragraph 41 of the present judgment that the appellants’ arguments seeking to challenge the [OSCURATO:PERSONA] decision have already been rejected in the examination of the fourth ground of appeal. 51 Consequently, so far as concerns the appellants’ arguments that, at the provisional stage, there was no volatility in the price of the product concerned, and that at that stage the product concerned was suitable for a price undertaking, these are immaterial, in that, first, the fact that CHEMK and KF were treated differently from [OSCURATO:PERSONA] is founded on a legislative basis which justified that difference in treatment, and, secondly, no breach of Articles 6(7) and 8(4) of the basic regulation and of the appellants’ rights of defence was found to have occurred. 52 In the light of all of the foregoing considerations, the fifth ground of appeal raised by CHEMK and KF must be rejected as being unfounded. Sixth ground of appeal: breach of [OSCURATO:PERSONA] 3(6) of the basic regulation Arguments of the parties 53 CHEMK and KF claim that the [OSCURATO:PERSONA] was wrong not to find that the [OSCURATO:PERSONA] had erred in law in its interpretation of [OSCURATO:PERSONA] 3(6) of the basic regulation, as set out in recital 64 in the preamble to the regulation at issue. In that regard, the [OSCURATO:PERSONA]’s intention was that the assessment of injury should be carried out, not on the basis of the individual situation of each [OSCURATO:PERSONA] producer in isolation, but at the level of the [OSCURATO:PERSONA] industry examined as a whole. However, the [OSCURATO:PERSONA], in paragraphs 114 and 121 of the judgment under appeal, established the existence of material injury, having regard in particular to the individual situation of each producer taken separately. In doing so, the [OSCURATO:PERSONA] erred in law by departing from the [OSCURATO:PERSONA]’s interpretation of [OSCURATO:PERSONA] 3(6) of the basic regulation set out in the regulation at issue. 54 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 55 [OSCURATO:PERSONA] 1(1) of the basic regulation, an anti-dumping duty may be applied to any dumped product only if its release for free circulation in the [OSCURATO:PERSONA] causes injury, the term ‘injury’ being taken to mean, in accordance with [OSCURATO:PERSONA] 3(1), material injury to the [OSCURATO:PERSONA] industry, a threat of material injury to the [OSCURATO:PERSONA] industry or material retardation of the establishment of such an industry. 56 In that regard, it must be noted that [OSCURATO:PERSONA] 3(5) of the basic regulation provides that the examination of the impact of dumped imports on the [OSCURATO:PERSONA] industry includes an evaluation of all relevant economic factors and indices having a bearing on the state of that [OSCURATO:PERSONA] industry. That article contains a list of factors which may be taken into account and states that that list is not exhaustive and that decisive guidance is not necessarily given by any one or more of those factors. 57 Thus, the concept of ‘[OSCURATO:PERSONA] industry’, within the meaning of [OSCURATO:PERSONA] 4(1) of the basic regulation, refers to all [OSCURATO:PERSONA] producers of like products, within the meaning of that regulation, or to the group of those producers whose collective output constitutes a major proportion, for the purposes of [OSCURATO:PERSONA] 5(4) of that regulation, of the total [OSCURATO:PERSONA] production of those products. 58 [OSCURATO:PERSONA] 3(6) of the basic regulation also states that the institutions are required to establish, using all the relevant evidence concerning the situation of the [OSCURATO:PERSONA] industry, the existence of injury suffered by that industry. In particular, that article requires that such proof should entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 thereof are responsible for an impact on the [OSCURATO:PERSONA] industry as provided for in paragraph 5 thereof, and that this impact exists to a degree which enables it to be classified as material. 59 It follows from those provisions that the determination of injury must be carried out at the level of the [OSCURATO:PERSONA] industry as a whole. 60 [OSCURATO:PERSONA] was therefore properly able to find, at paragraph 114 of the judgment under appeal, that the institutions must evaluate the impact of the dumped imports on the state of the [OSCURATO:PERSONA] industry as a whole – that is to say, on [OSCURATO:PERSONA] producers as a whole or at least on the state of [OSCURATO:PERSONA] producers which have supported the initiation of the anti-dumping proceeding, whose collective output represents more than 50% of the total [OSCURATO:PERSONA] production of the product concerned. 61 [OSCURATO:PERSONA] also acted correctly in finding, in paragraphs 116 and 117 of the judgment under appeal, that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the [OSCURATO:PERSONA] enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine ([OSCURATO:PERSONA] C‑351/04 [OSCURATO:PERSONA] [2007] ECR I‑7723, paragraph 40 and the case‑law cited, and [OSCURATO:PERSONA] C‑535/06 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2009] ECR I‑7051, paragraph 85). 62 In this regard, the determination of injury to the [OSCURATO:PERSONA] industry requires an assessment of complex economic situations, and review by the Courts of such an assessment must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 86 and the case-law cited). 63 In particular, with regard to the question whether the [OSCURATO:PERSONA] authorities committed a manifest error of assessment by failing to evaluate all the relevant injury factors having a bearing on the state of the [OSCURATO:PERSONA] industry, as set out in [OSCURATO:PERSONA] 3(5) of the basic regulation, it must be stated that that provision gives those authorities discretion in the examination and evaluation of the various items of evidence (see [OSCURATO:PERSONA] , paragraph 61). 64 Finally, the appellants’ specific arguments concerning a methodology that takes into consideration the individual situation of each [OSCURATO:PERSONA] producer are immaterial. Such an option would, in any event, be relevant only if the data of every producer comprising the [OSCURATO:PERSONA] industry, within the meaning of Articles 4(1) and 5(4) of the basic regulation, were aggregated in order to determine whether the release for free circulation in the [OSCURATO:PERSONA] of the dumped product causes injury to the [OSCURATO:PERSONA] industry as a whole, a threat of material injury to the [OSCURATO:PERSONA] industry or material retardation of the establishment of such a [OSCURATO:PERSONA] industry. 65 In those circumstances, the sixth ground of appeal raised by CHEMK and KF must be rejected as being unfounded. Seventh ground of appeal: error of law regarding the finding of a causal link for the purposes of [OSCURATO:PERSONA] 3(5) of the basic regulation Arguments of the parties 66 Although, in paragraph 172 of the judgment under appeal, it was stated that [OSCURATO:PERSONA] 3(7) of the basic regulation makes it possible, in certain circumstances, to take into consideration an injury caused individually to a [OSCURATO:PERSONA] producer by a factor other than the dumped imports, where it has contributed to the injury observed in relation to the [OSCURATO:PERSONA] industry as a whole, the [OSCURATO:PERSONA], in the view of the appellants, failed to draw the conclusion that the [OSCURATO:PERSONA] had erred, in recital 84 in the preamble to the regulation at issue, in refusing to analyse the causes of the material injury suffered specifically by [OSCURATO:PERSONA] SA, a [OSCURATO:PERSONA] producer (‘[OSCURATO:PERSONA]’), when analysing the causal link. 67 CHEMK and KF add that, during the administrative procedure and the procedure before the [OSCURATO:PERSONA], they had raised the fact that the [OSCURATO:PERSONA]’s conclusions concerning the injury suffered by the [OSCURATO:PERSONA] industry, drawn without taking into account the data relating to [OSCURATO:PERSONA], were vitiated by a manifest error of assessment. [OSCURATO:PERSONA] therefore distorted the clear sense of the evidence, in paragraph 173 of the judgment under appeal, by concluding that CHEMK and KF had not sought to establish that the [OSCURATO:PERSONA]’s conclusions were vitiated by a manifest error of assessment. 68 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 69 [OSCURATO:PERSONA] 3(7) of the basic regulation, known factors, other than the dumped imports, which are injuring the [OSCURATO:PERSONA] industry at the same time must be examined in order to ensure that injury caused by those other factors is not attributed to the dumped imports for the purposes of [OSCURATO:PERSONA] 3(6) (see [OSCURATO:PERSONA] C‑398/05 AGST Draht- und Biegetechnik [2008] ECR I‑1057, paragraph 31). 70 In determining injury, the institutions are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of [OSCURATO:PERSONA] producers themselves (see [OSCURATO:PERSONA] C‑358/89 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [1992] ECR I‑3813, paragraph 16, and AGST Draht- und Biegetechnik , paragraph 35). 71 It is, however, settled case-law that the determination of the existence of harm caused to the [OSCURATO:PERSONA] industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see [OSCURATO:PERSONA] , paragraph 41). That is particularly the case with regard to the determination of the factors injuring the [OSCURATO:PERSONA] industry in an anti-dumping investigation (see AGST Draht- und Biegetechnik , paragraph 34). 72 It is clear from paragraph 172 of the judgment under appeal that the [OSCURATO:PERSONA] did not exclude the possibility that, in certain circumstances, an injury caused individually to a [OSCURATO:PERSONA] producer by a factor other than the dumped imports must be taken into consideration where it has contributed to the injury observed in relation to the [OSCURATO:PERSONA] industry as a whole. 73 In paragraph 173 of the judgment under appeal, the [OSCURATO:PERSONA] found that the injury which [OSCURATO:PERSONA] may have suffered owing to problems with the electricity supply was duly taken into consideration, as is clear from recital 101 in the preamble to the regulation at issue. In that regard, the [OSCURATO:PERSONA] found that CHEMK and KF had not sought to establish that that assessment, according to which, even if the data pertaining to that producer were excluded from the injury analysis, the trends observed for the [OSCURATO:PERSONA] industry would continue to show the existence of injury, was flawed by a manifest error of assessment. 74 [OSCURATO:PERSONA] and the [OSCURATO:PERSONA], in their assessment of the injury caused to the [OSCURATO:PERSONA] industry, therefore did not fail to take account of the known factor, namely, the electricity supply problem concerning [OSCURATO:PERSONA]. Indeed, those institutions examined that factor, and, in recital 101 in the preamble to the regulation at issue, they concluded that it had no bearing on the trends observed for the rest of the [OSCURATO:PERSONA] industry. 75 In those circumstances, it is for the parties pleading the invalidity of the regulation at issue to adduce evidence to show that that factor could have had an effect of such magnitude that the existence of injury caused to the [OSCURATO:PERSONA] industry and of the causal link between that injury and the dumped imports was no longer reliable in terms of the institutions’ obligation to disregard any injury resulting from other factors (see AGST Draht- und Biegetechnik , paragraph 51). 76 In those circumstances, the [OSCURATO:PERSONA] rightly decided at paragraph 173 of the judgment under appeal, that, since CHEMK and KF had not sought to establish a manifest error of assessment by the [OSCURATO:PERSONA] in relation to the latter’s position set out in recital 101 in the preamble to the regulation at issue, according to which, even if no account had been taken of the data relating to [OSCURATO:PERSONA], the trends observed for the [OSCURATO:PERSONA] industry would continue to show the existence of injury to that industry, their argument that the injury suffered by [OSCURATO:PERSONA] had been caused, not by the dumped imports, but by difficulties with the electricity supply, cannot be accepted. 77 In those circumstances, the seventh ground of appeal raised by CHEMK and KF must be rejected as being unfounded. Eighth ground of appeal: infringement of the obligation to state reasons with regard to the determination of the injury Arguments of the parties 78 CHEMK and KF claim that, in paragraphs 207 and 208 of the judgment under appeal, the [OSCURATO:PERSONA] erred in its interpretation of the obligation imposed on the institutions to provide reasons for their decisions, and it did not comply with that obligation in its assessment. In the alternative, they claim that the [OSCURATO:PERSONA] distorted the evidence. 79 CHEMK and KF, citing in support of their ground of appeal the judgment in Petrotub and Republica v [OSCURATO:PERSONA] , consider that the reasoning in recital 101 in the preamble to the regulation at issue amounts to a peremptory statement that does not contain any explanatory element, with the result that that reasoning fails to meet the requisite legal standard. Indeed, contrary to what the [OSCURATO:PERSONA] decided in that regard, on the basis of the judgment in Petrotub and Republica v [OSCURATO:PERSONA] , such peremptory statements concern all areas and all statements which do not contain sufficiently detailed explanatory elements enabling the parties concerned and the Courts of the [OSCURATO:PERSONA] to exercise their powers of review. Consequently, by finding that the statement of reasons set out in recital 101 in the preamble to the regulation at issue meets the requisite legal standard, in the light of its brief, but precise and unambiguous nature, the [OSCURATO:PERSONA] did not follow the test set out in the judgment in Petrotub and Republica v [OSCURATO:PERSONA] and manifestly distorted the clear sense of the evidence. According to the appellants, that recital contains no explanatory element. In that regard, CHEMK and KF point out that they expressly and timeously requested a new disclosure of the facts supporting the conclusion in that recital. 80 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the appellants’ arguments and contends that they should be rejected. Findings of the [OSCURATO:PERSONA] 81 It must be noted that the [OSCURATO:PERSONA] addressed the parties’ pleas relating to the failure to comply with the obligation to state reasons in paragraph 206 of the judgment under appeal. By contrast, the [OSCURATO:PERSONA] reasoning in paragraphs 207 and 208 of the judgment under appeal, challenged by the appellants in the present appeal, is included merely for the sake of completeness in relation to the reasoning set out in paragraph 206. 82 Complaints directed against the grounds of a judgment of the [OSCURATO:PERSONA] included merely for the sake of completeness must be rejected outright since such grounds cannot provide any basis for setting that judgment aside (see [OSCURATO:PERSONA] C‑164/01 P van den Berg v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] [2004] ECR I‑10225, paragraph 60; [OSCURATO:PERSONA] C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [2005] ECR I‑5425, paragraph 148; and order of 3 October 2012 in [OSCURATO:PERSONA] C‑649/11 P [OSCURATO:PERSONA] v OHMI , paragraph 55). 83 It follows that the eighth ground of appeal raised by CHEMK and KF must be rejected as being ineffective. 84 Since none of the grounds relied on by CHEMK and KF in support of their appeal can be upheld, the appeal must be dismissed. Costs 85 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since CHEMK and KF have been unsuccessful, and since the [OSCURATO:PERSONA] has applied for costs, the appellants must be ordered to pay the costs of the appeal. [OSCURATO:PERSONA] 140(1) of the Rules of Procedure, which also applies to appeal proceedings pursuant to [OSCURATO:PERSONA] 184(1) thereof, the [OSCURATO:PERSONA] is to be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. [OSCURATO:PERSONA] OAO (CHEMK) and [OSCURATO:PERSONA] OAO (KF) to pay the costs of the present proceedings; 3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to bear its own costs. [Signatures] * Language of the case: English.