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the third plea in law of the application, concerning the absence of injury suffered by the Community industry, in breach of Article 3 of the basic Regulation (1); and

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the seventh plea in law concerning the illegal countervailing of a subsidy through the rejection of market economy treatment, in breach of Regulation No 2026/97 (2) and Article 2(7)(c) of the basic Regulation.

or, in the alternative, refer the matter back to the General Court.

(i)

The General Court distorted the clear sense of the evidence before it when it considered that the profit margin achieved by the Union fasteners industry during the period under consideration (from 1 January 2003 until 30 September 2007) was negatively affected, in a material way, by dumped imports from China; whereas the evidence in the file shows that profits fluctuated during that period, and were at their second highest during the last year (4.4 %), which is also when dumped imports from China were the highest, and were close to their maximum historical level of 4.7 % (in 2004), which is just below the target profit (5 %) used by the Commission to calculate the underselling margin.

(ii)

The evidence before the Court depicts a growing and more prosperous Union industry, notably during the investigation period. It does not depict a case of material injury but rather a case of a hypothetical missed opportunity to take full advantage of the growing domestic EU market. By deciding on this basis that the EU Institutions were right to consider that there was material injury caused by dumped imports, the General Court erred in the legal categorisation of the facts it had established, so that Article 3 (2), (5) and (6) of the basic Regulation was not applied properly.