I. Introduction

II. Legal framework

A. European Union law

B. World Trade Organization law

III. The facts and the contested regulation

IV. Procedure before the General Court and the judgment under appeal

V. Procedure before the Court of Justice and forms of order sought

VI. Assessment of the appeal

A. Admissibility of the action at first instance

1. The first plea of inadmissibility, in so far as the action for annulment was brought by the CCCME in its own name

(a) Preliminary remarks

(b) The general criteria in relation to standing of trade associations under the fourth paragraph of Article 263 TFEU

(c) The status granted by the Commission during the anti-dumping proceedings

(d) Interested party and/or representative association

(1) The concept of an interested party

(2) The concept of a representative association of exporters

(i) A trade or business association

– General criteria

– The relationship with the concept of freedom of association

– The statutes of the association

– Autonomy versus State interference

– Intermediary conclusion

(ii) The members are producers, exporters or importers of the product subject to investigation

2. The second plea of inadmissibility, in so far as the action was brought by the CCCME on behalf of its members

3. The third plea of inadmissibility, in so far as the action was brought by the appellants not represented by the CCCME

B. First limb of the first ground of appeal

1. Reliance on the reference data

2. Rejection of the alternative data

C. Second ground of appeal

D. Fifth ground of appeal

1. First limb

2. Second limb

3. Third limb

VII. Costs

VIII. Conclusion

1.

The China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’) is an association governed by Chinese law whose members include Chinese exporting producers of certain cast iron articles.

2.

By this appeal, the CCCME and nine other appellants who are producers of cast iron articles originating in the People’s Republic of China (‘the PRC’) (together, ‘the appellants’) request the Court of Justice to set aside the judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products v Commission (‘the judgment under appeal’). ( 2 ) By that judgment the General Court dismissed the appellants’ action for annulment of Commission Implementing Regulation (EU) 2018/140 (‘the contested regulation’) ( 3 ) imposing an anti-dumping duty on the imports of certain cast iron articles originating in the PRC. Those articles are essentially manhole covers.

3.

This appeal raises a number of issues, three of which are perhaps more important than the others. The first is of a procedural nature. This is the first time that the CCCME has challenged an anti-dumping regulation. It follows that the present case raises the issue of the concept of ‘individual and direct concern’ in relation to a trade organisation, the members of which cooperated in the anti-dumping procedure, which the European Commission alleges to be an emanation of the PRC. It also raises the question of the definition of a representative association of exporters under Regulation (EU) 2016/1036 (‘the basic regulation’). ( 4 ) As a result, the Court will have to lay out the conditions of admissibility for such an association to be able to bring an action for annulment under the fourth paragraph of Article 263 TFEU on its own behalf and on behalf of its members.

4.

The second issue is of a substantive nature. It relates to the rules for establishing injury caused to the EU industry. The appellants challenge the extrapolations and adjustments made by the Commission to Eurostat data ( 5 ) for the purposes of determining that injury. Hence, the Court must define the requirements laid down in Article 3(2), (3) and (5) of the basic regulation whereby the determination of injury must be based on positive evidence and involve an objective examination.

5.

The third issue concerns the procedural rules governing the anti-dumping administrative procedure, and, in particular, the disclosure obligations imposed on the Commission.

6.

Article 3 of the basic regulation, entitled ‘Determination of injury’, provides as follows:

‘1.   Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2.   A determination of injury shall be based on positive evidence and shall involve an objective examination of:

3.   With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

…

5.   The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry …

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 Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.

…’

7.

Article 5(10) and (11) of the basic regulation provides:

‘10.   The notice of initiation of proceedings shall announce the initiation of an investigation, indicate the product and countries concerned, give a summary of the information received, and provide that all relevant information is to be communicated to the Commission.

It shall state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(5).

11.   The Commission shall advise the exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as representatives of the exporting country and the complainants, of the initiation of the proceedings and, with due regard to the protection of confidential information, provide the full text of the written complaint received pursuant to paragraph 1 to the known exporters and to the authorities of the exporting country, and make it available upon request to other interested parties involved. Where the number of exporters involved is particularly high, the full text of the written complaint may instead be provided only to the authorities of the exporting country or to the relevant trade association.’

8.

Article 6(7) of the basic regulation states:

‘The complainants, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with Article 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 Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 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.’

9.

Article 19 of the basic regulation, headed ‘Confidentiality’, provides in paragraphs 1 to 3 thereof, as follows:

‘1.   Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information) or which is provided on a confidential basis by parties to an investigation shall, if good cause is shown, be treated as such by the authorities.

2.   Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not capable of being summarised. In such exceptional circumstances, a statement of the reasons why such summarisation is not possible shall be provided.

3.   If it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. Requests for confidentiality shall not be arbitrarily rejected.’

10.

Article 20(1) and (2) of the basic regulation provides as follows:

‘1.   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.

2.   The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.’

11.

The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) ( 6 ) (‘the 1994 Anti-Dumping Agreement’) is contained in Annex 1A to the Agreement establishing the World Trade Organization (WTO), approved by Council Decision 94/800/EC. ( 7 )

12.

Article 6.1.3 of the 1994 Anti-Dumping Agreement, entitled ‘Evidence’, provides as follows:

‘As soon as an investigation has been initiated, the authorities shall provide the full text of the written application received under paragraph 1 of Article 5 to the known exporters[ 16] and to the authorities of the exporting Member and shall make it available, upon request, to other interested parties involved. Due regard shall be paid to the requirement for the protection of confidential information, as provided for in paragraph 5.’

13.

That article is followed by a footnote, which details that ‘where the number of exporters involved is particularly high, the full text of the written application should instead be provided only to the authorities of the exporting Member or to the relevant trade association’.

14.

Article 6.11 of the 1994 Anti-Dumping Agreement sets out:

‘For the purposes of this Agreement, “interested parties” shall include:

15.

The background of the dispute was set out in paragraphs 1 to 9 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.

16.

On 31 October 2016, a complaint was lodged with the Commission, in accordance with Article 5 of the basic regulation, seeking to have it initiate an anti-dumping investigation concerning imports of certain cast iron articles originating in the PRC and the Republic of India. That complaint was submitted by seven EU producers. ( 8 )

17.

By notice published in the Official Journal of the European Union on 10 December 2016, ( 9 ) the Commission initiated an anti-dumping proceeding concerning the imports in question.

18.

The product subject to the investigation was ‘certain articles of lamellar graphite cast iron (grey iron) or spheroidal graphite cast iron (also known as ductile cast iron), and parts thereof[, t]hese articles [being] of a kind used to: – cover ground or sub-surfaces systems, and/or openings to ground or sub-surface systems, and also – give access to ground or sub-surface systems and/or provide view to ground or sub-surface systems’ (‘the product concerned’).

19.

The investigation into dumping and injury covered the period from 1 October 2015 to 30 September 2016 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2013 to the end of the investigation period (‘the period under consideration’).

20.

On 16 August 2017, the Commission adopted Implementing Regulation (EU) 2017/1480 (‘the provisional regulation’). ( 10 )

21.

Following the anti-dumping proceeding, on 29 January 2018, the Commission adopted the contested regulation.

22.

The CCCME took part in the administrative proceedings, which led to the adoption of the contested regulation. The other legal persons are the abovementioned nine Chinese exporting producers, two of which were selected by the Commission as part of the sample of Chinese exporting producers used for the purposes of the investigation.

23.

By application lodged at the Registry of the General Court on 23 April 2018, the appellants brought an action for annulment of the contested regulation. Before the General Court, the CCCME put forward six pleas in law in support of its action. The Commission disputed both the admissibility and the merits of that.

24.

By order of 24 October 2018, the President of the First Chamber of the General Court granted EJ Picardie and the other legal persons ( 11 ) (‘the interveners’) leave to intervene.

25.

In the judgment under appeal, the General Court began by addressing the Commission’s arguments concerning the admissibility of the CCCME’s action. The General Court found that the action was admissible in so far as it was brought, first, by the CCCME in its own name in order to safeguard its procedural rights, second, by the CCCME on behalf of the 19 members which it identified and, third, by the other legal persons whose names appear in Annex I to the judgment under appeal.

26.

As regards the merits of the action, the General Court dismissed all six of the pleas in law put forward by the CCCME and consequently dismissed the action in its entirety.

27.

This appeal is lodged by the CCCME in its own name and on behalf of its members, as well as by the other appellants, not represented by the CCCME.

28.

The appellants ask the Court to set aside the judgment under appeal; to grant the form of order sought by the appellants in their application made to the General Court; to annul the contested regulation in so far as it relates to the CCCME, the individual companies and the members concerned; to order the Commission to bear the costs of the proceedings before the General Court and of the appeal, including those of the appellants; and to order the interveners to bear their own costs.

29.

The Commission asks the Court of Justice to set aside the judgment under appeal in so far as it declares the action at first instance admissible; to declare the action brought before the General Court inadmissible; to dismiss the appeal; and to order the appellants to pay the costs before the General Court and of the appeal.

30.

The interveners ask the Court of Justice to dismiss the appeal in its entirety; to rule that the CCCME cannot be a representative association for the purposes of the basic regulation; and to order the appellants to pay the respondents’ costs.

31.

The Court put a number of written questions to the parties to be answered in writing. Those parties replied on 29 August 2022. All of the abovementioned parties presented oral arguments before the Court at the hearing on 5 October 2022. At the hearing, the parties were requested to focus their oral arguments on the issues of admissibility and on the first limb of the first ground of appeal as well as on the second and fifth grounds of appeal to which this Opinion will be limited in accordance with the Court’s request.

32.

I will examine, first of all, the plea advanced by the Commission and the interveners alleging that the General Court erred in declaring the annulment action admissible (A). Next, I shall pivot to the two grounds of appeal that deal with the determination of injury. I shall start with the analysis of the first limb of the first ground of appeal with respect to the volume of imports (B). Then, I shall examine the issue of positive evidence, which is raised in the context of the second ground of appeal (C). Finally, I shall examine the fifth ground of appeal, which relates to the observance of the rights of defence of the interested parties and to the obligation for the Commission to disclose data to those parties (D).

33.

In its response, the Commission submits that the General Court committed an error in law by declaring that action admissible.

34.

First, it should be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against, inter alia, an act which is of direct and individual concern to them. The right of associations and, namely, of trade associations to bring actions for annulment before the General Court stems from the right of private persons to bring such an action under the fourth paragraph of Article 263 TFEU.

35.

According to case-law, actions brought by associations are admissible in three well-defined situations: first, where the association represents the interests of undertakings which would be entitled to bring proceedings in their own right and, thus, would themselves have locus standi; second, where the association is differentiated by reason of the impact on its own interests as an association, in particular because its position as a negotiator has been affected by the measure of which annulment is sought; and, third, where a legal provision expressly confers on it a number of rights of a procedural nature. ( 12 )

36.

In the present case, it is the first and third situations that are the subject of the Commission’s pleas of inadmissibility. The first plea of inadmissibility concerns the situation where a trade association brings an action under its own name because it has an interest of its own (1), and the second plea of inadmissibility relates to the admissibility of a trade association that represents its members that have a standing of their own (2). Moreover, the Commission challenges the validity of the powers of attorney provided by the legal persons, which is the subject of the third plea of inadmissibility (3).

37.

The Commission, supported by the interveners, submits that the General Court erred in law in paragraphs 52 to 75 of the judgment under appeal by holding that recognition of the CCCME as a representative association of exporters during the administrative procedure was sufficient to establish that it was individually and directly concerned for the purposes of the fourth paragraph of Article 263 TFEU. The question whether or not an entity enjoys procedural rights in a given administrative procedure is determined by the legislative rules adopted by the EU legislature and not by the decision of an administrative authority which disregards those rules. The General Court failed to assess itself whether, objectively, the CCCME fulfilled all the conditions required by the basic regulation to be a representative association of exporters. In its answers to the Court’s questions, the Commission put great emphasis on the obligation to interpret the concept of trade association within the meaning of the basic regulation in the light of Article 12(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding Article 11(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

38.

The Commission and interveners submit that the CCCME is not an association representing exporting producers since it acted under the supervision, management and business direction of the ministries concerned in the PRC. The interveners add that the CCCME does not merely take instruction from the State, but acts on behalf of the State in the organisation of the commercial activities of the exporting producers and in the control of competition, by that State, in the domestic and export markets.

39.

The CCCME submits that it is a representative association of exporters under the basic regulation and is thus an interested party. For the reasons put forward by the General Court in the judgment under appeal, the CCCME states that it is directly and individually concerned by the contested regulation. In particular, the CCCME underscores that it was regarded as an interested party by the Commission both during the investigation which led to the contested regulation and in previous investigations. At the hearing, the CCCME added that the Commission should verify whether that entity is an interested party during the investigation and not at the stage of the judicial proceedings. It also argued that Article 12 of the Charter and Article 11 ECHR are not relevant for the purposes of the present proceedings.

40.

At the outset, I should point out that the General Court examined the CCCME’s standing to bring proceedings in paragraphs 46 to 76 of the judgment under appeal and rejected the plea of inadmissibility raised by the Commission. First, it ruled that the CCCME was individually concerned by the contested regulation, because the Commission had regarded the CCCME as an interested party within the meaning of the basic regulation and, thus, granted that association procedural rights during the procedure that led to the adoption of the contested regulation (‘the anti-dumping procedure’). Moreover, the General Court rejected the argument of the Commission that the CCCME could not be regarded as an interested party within the meaning of the basic regulation, but only as a representative party. Second, the General Court held that the CCCME was directly concerned, since it could secure respect for its procedural rights only if it had the opportunity to challenge the contested regulation.

41.

In that respect, I should note that, under the fourth paragraph of Article 263 TFEU, in order to establish whether legal persons, such as the CCCME, are entitled to bring an action in their own name, there must be an examination as to whether those persons have, first, standing and, second, an interest in bringing proceedings. ( 13 ) In particular, as regards the second condition, which is not challenged in the present appeal, ( 14 ) I should observe that, in paragraphs 78 and 79 of the judgment under appeal, the General Court held that the annulment of the contested regulation would require the Commission to reopen the anti-dumping procedure and possibly to allow the CCCME to intervene in the proceeding so as to obtain its comments in accordance with the basic regulation. Since an annulment is capable of having such effects, it could have legal consequences for the CCCME acting in its own name. In other words, if there had been a breach of the procedural rights of the CCCME, it would have affected the outcome of the anti-dumping investigations, and thus the CCCME has an interest in arguing such a breach. Accordingly, its interest in bringing an action before the General Court in its own name is to safeguard its procedural rights.

42.

At the outset, it should be recalled that the rules governing standing for legal persons, for the purposes of challenging an EU measure, are laid down in the fourth paragraph of Article 263 TFEU. In the present case, it is the second head, under which proceedings may be instituted if the act is of direct and individual concern to the associations, that must be examined. ( 15 )

43.

In order to establish whether the CCCME has standing in the present case, by reason of the impact of the contested act in its own name as an association, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them, inter alia, by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. ( 16 )

44.

In the present case, it is obvious, in my view, that the imposition of anti-dumping duties did not alter the legal situation of the CCCME in its individual capacity, since that entity is not itself required to pay that duty. ( 17 ) However, the fact that a person is involved in the procedure leading to the adoption of an EU measure is capable of distinguishing that person individually in relation to the measure in question, which has binding legal effects for that person, if the applicable EU legislation grants him or her certain procedural guarantees. ( 18 ) Therefore, the precise scope of the action of the CCCME, in its own name, depends on that entity’s legal position as defined by EU law with a view to protecting the legitimate interests afforded to that entity. ( 19 )

45.

The General Court considered that the CCCME was regarded by the Commission as an interested party to which the procedural rights provided for in the basic regulation ought to be granted throughout the administrative procedure. In paragraphs 53 to 57 of the judgment under appeal, the General Court made a series of findings according to which the CCCME was granted, by the Commission, the right to take part in two hearings arranged in the context of the investigation, as provided for in Article 6(5) of the basic regulation. It also noted that the CCCME received authorisation from the Commission to gain access, pursuant to Article 6(7) of the basic regulation, to the investigation file, and that, subsequently, the Commission addressed to the CCCME, in accordance with Article 20(1) of the basic regulation, the provisional conclusions which it had reached, in respect of which the CCCME submitted written comments. Moreover, the General Court emphasised that the CCCME received, in accordance with Article 20(2) of the basic regulation, the final conclusions, in which the Commission intended to propose that definitive measures be imposed. On the basis of those findings, the General Court concluded that, in this particular instance, the CCCME satisfied the requirements to be regarded as being individually concerned within the meaning of the fourth paragraph of Article 263 TFEU.

46.

In my view, the starting point of the present analysis is the inference made by the General Court that the Commission had erred during the administrative procedure in granting the CCCME the status of an interested party and the procedural rights deriving from that status. While that error is not disputed by the Commission, ( 20 ) I should note that the General Court does not take a stance on whether that error is established or not. ( 21 ) On the contrary, in paragraph 68 of the judgment under appeal, the General Court relies on the Commission’s own characterisation of the CCCME as an interested party, by citing, namely, recital 25 of the contested regulation in which the Commission considers that the CCCME had to be regarded as an interested party representing, in particular, the Chinese cast iron industry.

47.

However, according to the case-law in relation to the fourth paragraph of Article 263 TFEU, the fact that a person participates in one way or another in the process leading to the adoption of an EU act does not distinguish that person individually in relation to the act in question, unless the relevant EU legislation has laid down specific procedural guarantees for such a person. ( 22 ) Therefore, representative associations may be directly and individually concerned by a breach of the procedural rights conferred upon them by the basic regulation. It is on the basis of that regulation that the General Court has to consider whether an entity, such as the CCCME, is to be distinguished individually for the purposes of the fourth paragraph of Article 263 TFEU.

48.

It follows that the legal characterisation of the CCCME as an interested party for the purposes of applying the basic regulation cannot be presumed. For the purposes of the fourth paragraph of Article 263 TFEU, it is the General Court’s task to verify whether an entity, such as the CCCME, may be characterised as a representative association of exporters pursuant to the basic regulation, even more so where the Commission and the interveners have challenged the status of the CCCME within the meaning of that regulation. ( 23 )

49.

Accordingly, although the Commission recognised, during the administrative proceedings, the CCCME as an interested party and granted it the resulting procedural rights, such recognition and grant constitute an administrative practice which is not binding for the determination carried out by the EU judicature in an action for annulment. The status awarded by the Commission to the CCCME must comply with the basic regulation, which is the grounds for the adoption of the contested regulation. In that respect, as the Commission rightfully points out, whether or not an entity enjoys procedural rights in a given administrative procedure is determined by the EU legislature when it adopts the legal framework, namely the basic regulation in the present case, and not by the administrative body’s practice.

50.

That does not mean, however, that the Commission’s erroneous practice does not have any consequences, in particular, when that institution strips a person’s procedural rights from them. Rather, in the specific circumstances of the present case, the recognition of the CCCME as an interested party did not strip those rights from that person, but rather granted more rights to it, as pointed out by the Commission at the hearing. For that reason, the abovementioned recognition by the Commission does not have negative consequences on the rights of defence of the CCCME. ( 24 )

51.

Consequently, I take the view that, for the purposes of establishing the admissibility of an action for annulment, it was for the General Court to ascertain which status and which (if any) procedural rights the CCCME should have been granted in accordance with the basic regulation. However, when assessing, in paragraphs 53 to 71 of the judgment under appeal, whether the CCCME was individually concerned when acting in its own name, it appears that the General Court failed to carry out that verification. It considered merely that, for the purposes of the admissibility of the action for annulment, the CCCME was individually concerned solely on the ground that the Commission had granted it procedural rights. ( 25 ) Thus, I am of the opinion that the General Court erred in law in holding that the CCCME was individually and directly concerned on the ground that the Commission had granted it procedural rights during the anti-dumping proceedings, whilst not verifying whether the grant of those rights was consistent with the basic regulation.

52.

In the light of the abovementioned error, it is for the Court to ascertain whether, under the basic regulation, the Commission was in fact required to recognise the CCCME as an interested party and/or a representative association and to grant certain procedural rights to it. That raises the issue of whether the CCCME is an interested party and/or a representative association of exporters.

53.

At the outset, as regards the actors mentioned in the basic regulation, it should be noted that its provisions make reference to different entities, such as ‘exporters’, ‘importers’ (and their) ‘representative associations’, ‘representative associations of importers or exporters’, ‘complainants’, ‘representatives of the exporting country’, ‘government of the country exporting’, ‘users and consumer associations’ and ‘interested parties’. Even though those categories are not defined in the basic regulation, it follows from Articles 5, 6, 10, 11 and 19 thereof that that regulation grants those actors different rights. ( 26 )

54.

However, in the light of a literal and systematic interpretation of Article 5(10) and (11) of the basic regulation, it is apparent that the term ‘interested parties’ is an umbrella term and encompasses all the abovementioned entities. In particular, when a person has made itself known in accordance with Article 5(10) of that regulation, it becomes an interested party.

55.

For the purposes of determining the status of an interested party during the administrative proceedings and the procedural rights thereof, since different entities have different rights, the capacity under which it is acting, namely as an exporter, an importer, a representative association or other, should equally be determined. ( 27 ) In that respect, I should also note that, although the basic regulation differentiates between the representative associations of exporters and representatives of the exporting country, ( 28 ) neither that regulation nor the case-law appears to provide precise indications as to the criteria to be taken into consideration in order to define those concepts.

56.

The question that arises is whether the CCCME is a representative association of exporters within the meaning of the basic regulation. The parties reach quite naturally two opposite answers. According to the CCCME, the basic regulation does not list any procedural or material criteria that serve to define a representative association of exporters. By relying on the ordinary meaning of the terms ‘representative’ and ‘association’, the CCCME argues that any body or entity that acts for or on behalf of exporting producers may be characterised as a representative association of exporters within the meaning of the basic regulation. Adding any further criteria would amount to including unjustified additional conditions in the status of a representative association of exporters. In contrast, the Commission and the interveners contend that the term ‘representative association of exporters’ must be defined with recourse to specific material and procedural criteria. In particular, they argue that the term ‘association’ should be understood, according to the common traditions of the EU Member States, as relating to an entity that is constituted and acts in a democratic manner and that is independent from government.

57.

As stated by the Commission at the hearing, it follows that, for the purposes of the present Opinion, the interpretation of the term ‘association’ is crucial. In that respect, the basic regulation and its context provides for material and procedural criteria that define a ‘representative association of exporters’. In particular, as regards the procedural criteria, the basic regulation provides in the second subparagraph of Article 5(10) that the interested parties have to make themselves known. ( 29 ) As regards material criteria, it appears that the basic regulation does not define the term ‘representative association of exporters’. In that respect, I should note that that expression first appeared in Council Regulation (EC) No 3284/94, ( 30 ) which implemented the 1994 Anti-Dumping Agreement, while all the earlier versions of the anti-dumping basic regulation referred to the expression ‘trade association’. ( 31 )

58.

While the concept of ‘trade association’ was adopted by WTO law, namely Article 6.11(i) of the 1994 Anti-Dumping Agreement, ( 32 ) the Commission was unable to explain at the oral hearing before the Court why, during the adoption of Regulation No 3284/94 and the implementation of that agreement, the Council had made changes to the proposed text and where the term‘representative association’ originates from. ( 33 ) Therefore, it is unclear why the European Union adopted the expression ‘representative association’ and did not implement the same language as the one used in that agreement. This is all the more surprising, since Article 5(11) of the basic regulation refers to the term ‘trade association’, which, as the parties agreed at the hearing, clearly denotes a ‘representative association’.

59.

In any event, given that the basic regulation implements an international obligation stemming from the 1994 Anti-Dumping Agreement into EU law, for the purposes of defining the expression ‘representative association’ within the meaning of the basic regulation, it is appropriate to take account of the concept of ‘trade or business association’ within the meaning of Article 6.11(i) of that agreement. ( 34 ) According to that provision, for an entity to fall within the meaning thereof, it must meet two criteria: first, it should be a ‘trade or business association’ and, second, the majority of its members should be producers, exporters or importers of the product subject to investigation. I shall examine those two criteria below.

60.

The parties agreed at the hearing that the expression ‘trade or business association’ under Article 6.11(i) of the 1994 Anti-Dumping Agreement has been implemented in the basic regulation by reference to a ‘representative association’. ( 35 ) In the absence of a definition in that article or any reference to national laws, that expression should be, in accordance with Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969, ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.

61.

In that respect, I must first note that there are certain discrepancies between the linguistic versions of Article 6.11(i) of the 1994 Anti-Dumping Agreement, since two of the three official languages of the WTO refer to an ‘association’ – ‘trade or business association’ in English, ( 36 ) and‘las asociaciones mercantiles, gremiales o empresariales’ in Spanish ( 37 ) – whilst the third language refers to a ‘grouping’ – ‘un groupement professionnel commercial ou industriel’ ( 38 ) in French. The ordinary meaning of those terms seems to cover different types of organisations that regroup and support companies and employers of a particular type of industry, as well as protect their rights. Moreover, for the sake of completeness, I should add that, under different legal systems, the historic definition of a ‘trade association’ encompassed chambers and boards of commerce; associations or institutes; trade protection societies; non-representative associations rendering general commercial services; consultative chambers of arts and manufactures; and syndical chambers of trade and industry. ( 39 ) As a consequence, the ordinary meaning of that term does not support the approach defended by the Commission. A reading of Article 6.11(i) of the 1994 Anti-Dumping Agreement to the effect that a ‘representative association’ exists only if it is democratically governed is not mandated anywhere in that agreement. ( 40 )

62.

Therefore, one cannot reasonably solely rely on the meaning of an ‘association’ as understood in the common traditions of the EU Member States – that is, an association that is constituted and acts in a democratic manner and that is independent from government. Rather, the ordinary meaning of that term connotes an entity that supports companies of a particular type of industry and protects their rights.

63.

As regards the context, the term ‘trade or business association’ appears in the multilateral context of WTO, the work of which is undertaken by the representatives of governments, but the roots of which lie in the everyday activity of industry and commerce. Thus, the array of entities that can be legally characterised as ‘trade associations’ or ‘business associations’ is particularly wide. In my view, it can range from chambers of commerce and associations of chambers of commerce to industry trade groups, business associations, sector associations or industry bodies. ( 41 ) Since the concept of ‘trade or business association’ stems from the multilateral framework of the WTO, comprised of countries with different political and economic regimes, I would argue that the legal standard applied to that concept is different from the one applied to that of an association under the EU Member States’ national laws or other areas of EU law. It follows that, for the purposes of applying the basic regulation, which implements Article 6(11)(i) of the 1994 Anti-Dumping Agreement, the concept of a ‘representative association’ should receive a broad interpretation designating all sorts of entities representing the industries that are subject to anti-dumping proceedings.

64.

According to the Commission, an association cannot be representative if it does not comply with the requirements set out in Article 12(1) of the Charter. The CCCME, by contrast, argued at the hearing that that provision should not be relevant.

65.

As regards, in the first place, the right to freedom of association enshrined in Article 12(1) of the Charter, that right corresponds to the right guaranteed in Article 11(1) ECHR and, thus, must be regarded, in accordance with Article 52(3) of the Charter, as having the same meaning and scope as the latter. Therefore, the provisions of the basic regulation should be interpreted in a manner that takes into account the case-law of the European Court of Human Rights (‘the ECtHR’). ( 42 )

66.

In this connection, first, according to the case-law of the ECtHR, the right to freedom of association constitutes one of the essential bases of a democratic and pluralist society, inasmuch as it allows citizens to act collectively in fields of mutual interest and in doing so to contribute to the proper functioning of public life. ( 43 ) Second, that right not only includes the ability to create or dissolve an association, ( 44 ) but also covers the possibility for that association to act, which means, inter alia, that it must be able to pursue its activities and operate without unjustified interference by the State. ( 45 )

67.

Therefore, while it is true that the terms of the basic regulation are to be interpreted, inter alia, in the light of the right to freedom of association enshrined in Article 12(1) of the Charter and in such a manner as to avoid giving rise to an unjustified limitation to that right, that interpretation cannot be used as a means to restrict the rights of an entity that is not even invoking the right to such freedom. For instance, the provisions of the basic regulation should be interpreted in such a way that an economic operator should not be coerced or obliged to become a member of a trade or business association, except when such interference is justified and proportionate. ( 46 )

68.

In particular, the Commission cannot use the freedom of association enshrined in those provisions in order to restrict the rights of an entity which claims to represent undertakings or an industry. ( 47 ) In other words, the obligation to interpret the basic regulation in the light of the Charter and the ECHR may entail granting rights to the parties involved in anti-dumping proceedings, but cannot be used as a means to deter those parties from exercising their rights of defence guaranteed by Articles 41 or 47 of the Charter.

69.

In that respect, I take the view that the scope of the freedom of association within the meaning of Article 12(1) of the Charter and of Article 11 ECHR is more restrictive than the concept of ‘representative association’ under the basic regulation; that concept encompasses the freedom of association, but also the concept of ‘trade or business association’ within the meaning of international trade law. In other words, when that freedom does not apply, an entity can still be representative of its members within the meaning of the basic regulation and in the context of international trade law.

70.

Therefore, the Commission cannot rely on that freedom in order to restrict the concept of representative association within the meaning of the basic regulation and for the purposes of precluding an organisation from representing its members or an industry. If the Court were to follow the Commission’s approach, the entity at issue, in order to be legally characterised as a representative association under the basic regulation, ought always to comply with those provisions, regardless of whether that entity is invoking the right to that freedom or not. It follows that the Court should dismiss the argument raised previously by the Commission that the public authority exercised by the entity at issue ( 48 ) precludes its characterisation as an association, since it does not meet the requirements of Article 12(1) of the Charter and Article 11 ECHR. For the same reasons, I take the view that the argument of the Commission whereby the entity at issue cannot have regulatory powers, since it does not meet those requirements, should be rejected.

71.

In any case, in the present case, there is nothing in the file presented to the Court to suggest that interpreting the basic regulation as permitting the CCCME to be considered a representative association of exporters would amount to an unjustified limitation of that fundamental right within the meaning of those provisions.

72.

In practical terms, the issue of whether an entity is a ‘trade or business association’ should be analysed by taking into account its statutes. In the present case, it is clear from the Statutes of the CCCME that it is, inter alia, a non-profit organisation formed by enterprises and institutions engaged in the export trade, investment and cooperation of machinery and electronic products. ( 49 ) According to Articles 2 and 3 of the statutes, the CCCME’s purpose is to provide its members with coordination, consultation and services, to safeguard the legitimate rights and interest of its members and promote the development of the mechanical and electronic industries. ( 50 ) In my view, the purpose, as defined by the statutes, leaves no room for doubt that the CCCME is an association representing, at least formally, certain producers and exporters of the PRC.

73.

The next issue that arises is whether the CCCME is an association representing the producers of the specific products that are subject to investigation. As its name indicates, the CCCME is an entity that represents the producers and exporters of the ‘machinery and electronic products’ and‘mechanical and electronical industries’. ( 51 ) It is true that those vague terms do not specify whether that entity encompasses the producers and exporters of specific products, such as certain cast iron articles (manhole covers). However, it also appears from reading the business licences of the members of the CCCME that those members’ activities include casting iron. ( 52 )

74.

Furthermore, in contrast with the Commission’s arguments, even if the products that are subject to investigation are merely a fraction of all the products covered by the association’s members, which seems to be the case here, the association can still represent the producers of the product at issue where those producers represent an appreciable number of operators in the sector concerned. ( 53 ) In the judgment in BEUC v Commission, ( 54 ) the General Court considered that an interested party must be able to show an objective link between the party’s activities and the product concerned. ( 55 ) Whether those articles are mentioned on the website of the CCCME should not be relevant, contrary to the allegations of the interveners. ( 56 )

75.

I turn, therefore, to the nub of the question: to what extent should the autonomy of the entity from the State be taken into consideration for the purposes of legally characterising it as a representative association of exporters under the basic regulation?

76.

The issue that arises is the extent to which an entity has a connection with the government of the State in which it is established, such as to preclude that entity from representing its members.

77.

At the outset, I should point out that, in international trade law, depending on national law, it is possible that certain associations that are representative of their members have certain links with their government, since associations enjoy different degrees of freedom and autonomy under the legislations of different States. Moreover, when an association is established in a third State and governed by a law thereof, as in the present case, the degree of autonomy is difficult or even impossible to assess. The Commission would have to prove that, in relation to the decisions concerning the anti-dumping proceedings, the association at issue represents the State, to the effect of precluding any representation of the members.

78.

In the present case, the Commission relies on the Statutes of the CCCME in order to demonstrate that the CCCME is under the ‘supervision, management and business guidance’ of different ministries of the PRC. ( 57 ) However, the terms ‘supervision, management and business guidance’ are very broad, inasmuch as they can entail various degrees of influence or intervention. Therefore, and in the light of the evidence presented by the Commission and the interveners, ( 58 ) while the CCCME appears to be an entity over which the Chinese State exercises some control, such broad terms are not sufficient to demonstrate that the State exercises control in a manner that precludes the representation of the interests of the exporters or constitutes an emanation of the PRC.

79.

Moreover, for the purposes of the anti-dumping proceedings under the basic regulation, it must be shown that the control exercised by the State applies specifically to the decisions made by that association in relation to those proceedings. Therefore, certain connections or links with the government do not necessarily automatically preclude the simultaneous representation by the association of its producers or exporters in the context of anti-dumping proceedings. It follows that, in the present case, while it is certain that the State exercises some control, the fact that the entity at issue does not represent its members in the specific anti-dumping proceedings at issue has not been established.

80.

In any case, in the area of international trade law where the interests of the States and companies are often intertwined, the autonomy of an association in relation to the State seems to matter where the State and the exporters, which that association represents, have opposing interests. In other words, if the members of the association have the same interest as that of the State, there is no effect in distinguishing between the interests of the former and of the latter. In the present case, no such opposition of interests has been established.

81.

In practice, certain entities benefit from a legal monopoly to manage an activity. It may well be that, in the context of international trade, those entities are best placed to represent their members. In that case, the entity at issue should be able to participate in the administrative proceedings leading to the imposition of anti-dumping duties.

82.

Therefore, the line of argumentation based on State interference is not sufficient to exclude the possibility that the CCCME may act in the interest of the Chinese exporters.

83.

Such an appraisal is not called into question by the judgment of 10 July 1986, DEFI v Commission, ( 59 ) in which the Court found, in essence, that, under the relevant French legislation, the French Government had the power to determine the management and policies of the organisation concerned and, hence, to define the interests which that organisation was to protect. First, in that case, the State was the addressee of the Commission’s State aid decision and the undertakings receiving aid were regarded solely as ‘interested parties’ in those proceedings, and, as such, were deemed not to be able themselves to seek to engage in an adversarial debate with the Commission in the same way as is offered to the abovementioned Member State. ( 60 ) In the present case, in contrast, the basic regulation treats all the undertakings, representative associations of the companies and representatives of the countries concerned as interested parties. Therefore, the distinction made above between the State and the undertaking in State aid law is not relevant for the purposes of the anti-dumping proceedings. Second, in that case, the organisation itself acknowledged that it did not represent the beneficiaries of the aid at issue, but represented interests peculiar to itself. However, in the present case, as recognised by the Commission, the CCCME may well be an organisation representing Chinese industry as a whole. Therefore, in the present case, since the situation of the CCCME is not the same as that of the French organisation at issue, the transposition mutatis mutandis of the Court’s reasoning in the judgment of 10 July 1986, DEFI v Commission, ( 61 ) is not possible.

84.

Finally, in its answers to the Court’s written questions, the Commission referred to compulsory membership in order to establish that an entity such as the CCCME cannot be a representative association. However, at the hearing, the Commission acknowledged that its argument dealt only with State interference and that the issue of compulsory membership was not relevant for the purposes of the present proceedings. In any case, it should be observed that the Commission has presented no evidence of such membership in the present case. At the hearing, the CCCME stated that its membership is not compulsory and, in the absence of contrary evidence, there is no reason to doubt the correctness of that submission.

85.

In the light of the foregoing, I take the view that, irrespective of the alleged interference of the PRC in the CCCME, that entity meets the first criterion of the definition of a trade association within the meaning of Article 6.11(i) of the 1994 Anti-Dumping Agreement and, thus, of a representative association within the meaning of Article 5(11) of the basic regulation.

86.

As regards the second criterion, according to Article 6.11(i) of the 1994 Anti-Dumping Agreement, the majority of the members of the entity at issue ought to be producers, exporters or importers of the product subject to investigation.

87.

The Commission essentially argues that the cast iron producers and exporters do not represent the majority of the CCCME’s members as a result of which that association cannot be held to be representative of those producers and exporters. At the hearing, the Commission added that the majority of members of the entity at issue must be concerned by the investigations of the Commission.

88.

In that respect, I should note that the product subject to investigation can be a very specific product, which is the case here. The situation in which the exporters or producers of a specific product, such as certain cast iron articles, as in the present case, do not compose the majority of the members of an association is more than likely. It does not seem reasonable to require that there is an association for each and every specific product. That would essentially lead to a situation where, when the anti-dumping investigation has a very narrow material scope, no association could ever be characterised as a ‘representative association of exporters’. Therefore, I take the view that Article 6.11(i) of the 1994 Anti-Dumping Agreement should be read in the sense that the association must represent an ‘appreciable number of operators in the sector concerned’. ( 62 )

89.

In the light of the abovementioned criteria, I take the view that, in the present case, there is nothing that precludes the CCCME from being characterised as a representative association of exporters of the product at issue. Accordingly, I am of the opinion that the CCCME was entitled to enjoy procedural rights under the basic regulation as a representative association of the exporters of the Chinese cast iron industry.

90.

Consequently, the CCCME should be considered as individually concerned within the meaning of the fourth paragraph of Article 263 TFEU on account of the failure to observe its procedural rights.

91.

With respect to the requirement of direct concern, I should point out that, in its response, the Commission merely states that the ‘same error in law also affects the finding of direct concern in paragraphs 71 to 75 of the judgment [under appeal], because direct effect is based on the finding that the CCCME enjoys procedural rights …, so that that finding also has to be set aside’. However, in the light of the reasoning set out above and in the absence of a more substantiated challenge by the Commission, I take the view that the General Court was right to consider, in paragraphs 71 to 75 of the judgment under appeal, that the CCCME may be regarded as being also directly concerned since it can ensure that its procedural rights are respected only if it is able to challenge the contested regulation.

92.

In conclusion, for the reasons set out above, I propose that the Court set aside the reasoning in paragraphs 58 to 60 and 68 to 70 of the judgment under appeal, since the finding that the Commission acknowledged the CCCME’s status as an interested party during the administrative procedure could not suffice in law to establish the requirements with respect to being individually concerned within the meaning of the fourth paragraph of Article 263 TFEU. However, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment. Rather, a substitution of grounds must be made. ( 63 ) In the present case, I propose that the Court consider that the CCCME be characterised as a representative association of the exporters of the Chinese cast iron industry and, thus, should be considered as individually and directly concerned within the meaning of the fourth paragraph of Article 263 TFEU on account of the failure to observe its procedural rights. I would point out, however, that the exact scope of the procedural guarantees conferred on that association, which is a question of merit and not admissibility, will depend on all the interests which it represents ( 64 ) and will be subject to the analysis of the fifth ground of appeal.

93.

The Commission submits that the CCCME cannot be characterised as a representative association and, therefore, lacks individual or direct concern within the meaning of the fourth paragraph of Article 263 TFEU. The Commission explains that it had argued before the General Court that the right of associations to bring legal proceedings when they act on behalf of their members is permitted only for associations that are representative of those members. By rejecting, in paragraphs 98 to 103 of the judgment under appeal, the requirement that an association can only be representative if it is organised in a democratic manner, the General Court committed an error in law.

94.

The Commission contends that a trade association, which is responsible for protecting the collective interests of its members, cannot, at the same time, be an emanation of a State that is organised based on a communist one-party system. As a trade association, it would have to defend the interests of its members, as democratically defined by those same members vis-à-vis the very State of which it is an emanation. According to the Commission, an interpretation whereby a trade association is part of a State and at the same time defends the collective interests of its members against that State is not in line with the fundamental principles of representative democracy, as they are common to the tradition of the Member States. Taking into account specific features of the State in which the association is incorporated would run counter to the principle set out in Article 3(5) TEU, according to which the European Union, in its relations with the wider world, shall uphold and promote its values. As a consequence, the Commission invites the Court of Justice to set aside the finding of the General Court that the CCCME is a trade association, empowered to bring actions on behalf of its members.

95.

The interveners submit that the CCCME is not a representative association within the meaning of Article 6(7) of the basic regulation but a representative of the exporting country within the meaning of that provision. The CCCME, a semi-State body, controls and coordinates the activities of the exporting producers which it represents. Thus, serving the interests of exporting producers is merely a consequence of its semi-State and paramount role in the management of domestic and export markets. In order to be a representative association, the criterion of representativeness must take precedence over that of control.

96.

The CCCME denies being an ‘emanation’ of the PRC and submits that the Commission has not adduced evidence to the contrary before the Court. The existence of a link with that State is not sufficient, since chambers of commerce have very close links with their respective States. Furthermore, the CCCME submits that the Commission, first, did not challenge the finding of fact set out in paragraph 91 of the judgment under appeal regarding the objects of the CCCME, second, has not demonstrated that it was not organised in a democratic manner and, third, did not dispute that the objects of the CCCME enabled it to cover legal proceedings intended to defend the interests of its members. The CCCME also emphasises that its statutes show that its members have the right to vote.

97.

As a preliminary point, I should emphasise that the question whether an entity is a ‘representative association … of exporters’ within the meaning of the basic regulation ( 65 ) is a separate question from the question whether that entity can represent its members in a direct action before the General Court in an action for annulment. Thus, as explained above, ( 66 ) the second plea of inadmissibility is to be distinguished from the first plea of inadmissibility in so far as it relates to the CCCME’s ability to bring an action for annulment on behalf of its members. The possibility for an association to represent its members before the Courts of the European Union and namely its standing depend on the criteria developed by the case-law in relation to the fourth paragraph of Article 263 TFEU.

98.

I should point out that an association, which is responsible for protecting the collective interests of producers, is, as a rule, entitled to bring an action for annulment under the fourth paragraph of Article 263 TFEU only if the undertakings which it represents or some of those undertakings themselves have locus standi. ( 67 ) Accordingly, under that provision, an action brought by an association acting in place of one or more of its members who could themselves have brought an admissible action will itself be admissible, ( 68 ) provided that those members have not themselves brought an action to protect their own interest(s). ( 69 )

99.

However, it should be noted that, in EU primary law, there is no uniform definition or criteria of an association, which is responsible for protecting the collective interests of its members. In that respect, since the fourth paragraph of Article 263 TFEU does not make any reference to national laws concerning the meaning to be given to the concept of an association, that concept must be regarded as an autonomous concept of EU law which must be interpreted in a uniform manner throughout the territory of the European Union. ( 70 ) According to the case-law, that concept should be interpreted taking account of the wording of that provision, but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 71 )

100.

Since, for the purposes of the application of the fourth paragraph of Article 263 TFEU, neither the provisions of EU primary law nor the Court’s case-law have defined the term ‘association’, ( 72 ) I pivot to the context of the rules governing associations. I agree with the Commission that, according to the common traditions of the Member States, the concept of associations entails that those entities are free to govern themselves without interference from the State in accordance with their own rules and procedures and, in particular, independently of government and other public authorities. ( 73 ) Those characteristics derive from the fundamental right to freedom of association within the meaning of Article 12 of the Charter and Article 11 ECHR. ( 74 ) Therefore, the national laws implementing that fundamental right, recognised by all Member States, must comply with those requirements. In that respect, the Commission is right to argue that, according to the national laws of the Member States, in general, the State does not take part in the associations’ decision-making. ( 75 ) However, as previously noted, ( 76 ) that freedom cannot be used to deter parties from exercising their rights of defence guaranteed by Articles 41 and 47 of the Charter for the purposes of standing within the meaning of the fourth paragraph of Article 263 TFEU.

101.

It is true that the Court allows interventions by representative associations, the purpose of which is to protect their members’ interests in cases raising questions of principle liable to affect those members. ( 77 ) However, in Venezuela v Council, ( 78 ) the Court held that a contextual and teleological interpretation of the fourth paragraph of Article 263 TFEU in the light of the principles of effective judicial review and the rule of law militates in favour of finding that a State should have standing to bring proceedings, where the other conditions laid down in that provision are satisfied. ( 79 ) I should emphasise that, in that case, the Court did not make the possibility of bringing an action for annulment provided for in the fourth paragraph of Article 263 TFEU dependent on the democratic decision-making process of a third State, although the issue of democratic representativeness of that State may well be an issue. In so doing, the Court took a ‘value-neutral’ approach, to the effect that the standing of a State – which can be understood inter alia as a political and cultural community to which individuals are associated on the basis of different criteria, such as nationality, residence or religion – ( 80 ) was not made conditional upon its regime and the democratic decision-making process was in no way a factor in that determination.

102.

In the light of that interpretation, in so far as the Commission justifies, in the present case, the requirement of an additional condition in relation to the representativeness of the association at issue on the basis of the fundamental principles of democracy and the principle set out in Article 3(5) TEU, ( 81 ) that requirement would have the effect of unduly limiting the CCCME’s access to courts on behalf of its members and restricts the principle of effective judicial protection guaranteed by Article 47 of the Charter.

103.

As regards that latter principle, the Court has held that, whilst the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty. ( 82 ) However, in the present case, no such conditions exist. Rather, the interpretation of that provision suggested by the Commission amounts to adding a new condition, which has the effect of restricting the access of certain entities to the General Court.

104.

Moreover, the rationale for allowing an association to act on behalf of its members may relieve the General Court of handling multiple applications and is in line with the requirement of the sound administration of justice, since it may avoid bringing a large number of actions brought against the same acts by the members of the association representing their interests. ( 83 ) Therefore, the abovementioned additional condition suggested by the Commission is not justified in the light of the raison d’être of representation before the courts by an association.

105.

By the second plea, the Commission criticises paragraphs 89 to 103 of the judgment under appeal where the General Court rejected the claim in relation to the CCCME’s ability to bring an action on behalf of its members. In those paragraphs, the General Court rejected the interpretation suggested by the Commission whereby the judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, ( 84 ) had introduced a requirement relating to the representativeness of the association at issue.

106.

However, in my view, contrary to the submissions of the Commission, the judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association does not introduce an additional condition in relation to the representativeness of the association at issue. Moreover, nothing in that judgment indicates that democratic decision-making should be a factor in establishing the representativeness of a trade association.

107.

In particular, in paragraph 123 of that judgment, the Court held that it ‘cannot be accepted that the absence of the right to vote of certain members of an association, or of another instrument enabling them to enforce their interests within that association, is sufficient to prove that the association does not have the purpose of representing such members’. It concluded that the General Court erred in law in finding that it was for the association at issue to show not only that their members were directly and individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, but also that the members whose interests they intended to defend had to be able to enforce their individual interests within those associations. By doing so, the Court of Justice explicitly set aside the enforcement of individual rights within the associations, that is, the requirement that the members of the association must have the possibility that their interests prevail within that association. ( 85 )

108.

Furthermore, as already pointed out in the analysis in relation to the first plea of inadmissibility, the issue of State control and democratic decision-making raises the issue of the proof of such decision-making. ( 86 ) In that respect, I should note that, before the General Court, the Commission challenged the evidence of representation by stating that the ‘decision of the CCCME to proceed with the [application for annulment]’ and the proxies given to the CCCME are not sufficient to establish the existence of the democratic process within the association. It also referred to Article 4 of the Statutes of the CCCME, which refers to the control by the ministries. ( 87 )

109.

Such connection to the State, as already noted, ( 88 ) is insufficient to declare the CCCME as an emanation of the State or that the CCCME is not organised in a democratic manner. Indeed, the issue as to whether the CCCME is organised in a democratic manner is too broad for the purposes of deciding its representativeness. ( 89 ) The Commission itself agrees that the issue in the present case is not the structure of voting rights, but the alleged fact that the CCCME acts under the instruction of the relevant ministries of the PRC. ( 90 ) However, I should point out that, in the present case, there is no indication as to how the decision to lodge an application before the General Court was taken or that the government played a role in taking that decision. The evidence provided to the General Court does not suffice to show that the decision to bring court proceedings was taken without the consent of the members and at the behest of that government.

110.

I take the view therefore that the Court should reject the second plea of inadmissibility, alleging that the CCCME is not representative of its members in legal proceedings.

111.

The Commission points out that, as regards the other appellants not represented by the CCCME, it had argued before the General Court that there were doubts as to whether the signatories were entitled to sign the powers of attorney. According to the Commission, by refusing, in paragraphs 133 to 137 of the judgment under appeal, to verify whether the signatories were so empowered, the General Court committed an error of law.

112.

That institution relies on Barge v High Authority, ( 91 ) in which the Court held that the lawyer acting for a party was not required to produce a duly executed authority to act in the lodging of an application, subject to proof if challenged that he or she is empowered to do so. According to the Commission, Article 38 of the Rules of Procedure of the Court in force at that time did not foresee any obligation to produce a power of attorney for actions brought by private persons. However, in that case, the Court, relying on its statute, allowed the other party to challenge the existence of a ‘duly executed authority’ and held that, in such a situation, the Court needs to request proof thereof. An amendment to the Rules of Procedure of the General Court cannot go against a requirement set out in that statute, which is a higher norm than those rules of procedure.

113.

In the present case, the Commission asks the Court to request the other appellants to produce the documents that are necessary to verify whether the powers of attorney are duly executed.

114.

The appellants submit that, before the General Court, the Commission did not express any doubts as to whether the signatories were entitled to sign the powers of attorney, but disputed the complete nature of the formal documents. The General Court was correct to confirm that its rules of procedure did not require proof that the authority granted to the lawyer was conferred on him or her by someone authorised for that purpose. However, it did not find that it no longer had to check whether the person signing a power of attorney actually was entitled to do so. The General Court merely found that the mandatory documents were in order. The Commission did not call into question the fact that the mandates were given by persons who were empowered for that purpose. In the absence of substantiated arguments capable of calling into question the foregoing, the General Court is not required to request the production of any such proof.

115.

At the outset, I should observe that the Commission argued before the General Court that, as regards seven of the other legal persons whose names appear in Annex I to the judgment under appeal, the position of the person who signed the powers of attorney was a ‘general manager’, ‘managing director’, ‘financial controller’ or ‘director’, without any further explanation or justification as to whether that person was able to sign such a mandate under Chinese law. As regards the other two legal persons whose names are listed in that annex, the Commission submitted that they provided a power of attorney that did not state the signatory’s position, without, furthermore, attaching any documents establishing that the signatory had the power to sign such a document.

116.

In that respect, pursuant to the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of Article 53 of the statute, ( 92 ) parties other than Member States and institutions of the European Union must be represented by a lawyer authorised to practise, namely, before a court of a Member State.

117.

In order for an action for annulment to be admissible, it is necessary to show that the person concerned has indeed made the decision to bring the action and that the lawyers who claim to represent that person have in fact been authorised to do so. ( 93 ) In that respect, Article 51(3) of the Rules of Procedure of the General Court requires lawyers, where the party they represent is a legal person governed by private law, to lodge at the Registry of the General Court an authority to act given by that person, as failure to produce such authority to act may entail, in accordance with Article 51(4) of those rules of procedure, the formal inadmissibility of the application.

118.

As regards Article 51(3) of the Rules of Procedure of the General Court, I should observe that, unlike an earlier version of those rules, ( 94 ) that provision does not provide that a party must provide evidence that the authority granted to the applicant’s lawyer has been properly conferred on him or her by someone authorised to do so. In its own case-law, the General Court has inferred from the amendment of the rules of procedure that no such evidence is required. ( 95 )

119.

Nevertheless, I take the view that the relaxation of the procedural rules at the stage of the lodging of an application of action for annulment does not affect the abovementioned substantive requirement relating to representation of the applicants by their lawyers set out in Article 19 of the Statute of the Court of Justice of the European Union, which is a higher norm than those rules of procedure. In a recent judgment, the Court held that the condition of independence imposed by Article 19 on the representatives of non-privileged parties may be subject to a restrictive review by the Courts of the European Union. ( 96 ) By analogy, the same degree of review should be applied to the requirement relating to representation with respect to the validity of the authority granted to the applicant’s lawyer.

120.

Therefore, the fact that the new provision, Article 51(3) of the Rules of Procedure of the General Court, does not contain an explicit reference to the requirement of such proof does not discharge the General Court from checking the validity of the authority of the person signing the power of attorney, when the other party has explicitly challenged such validity. The Commission is right to point out that, in the event of a challenge to the validity of the authority conferred by a party on his or her lawyer, that party must be able to demonstrate that the person signing the power of attorney is properly authorised to do so. ( 97 )

121.

Accordingly, I take the view that the General Court erred in law in considering that, since its rules of procedure do not require proof that the authority granted to a lawyer is established by someone authorised for that purpose, the Commission’s challenge to the lawfulness of that authority had to be rejected.

122.

That being said, when the Commission seeks to challenge the exercise of such power, it ought to, at the very least, bear the onus of demonstrating the existence of a prima facie case to that effect. In the present case, the Commission relies on mere allegations. It relies, first, on the fact that certain signatories of the powers of attorney at issue do not specify their duties and do not attach any documents attesting to the power to sign such acts. Second, the Commission bases its claims on the fact that certain signatories, who specified their position as managing director, chief executive officer, financial controller or director, did not prove that, under Chinese law, they were authorised to sign such powers of attorney. Such allegations, however, need to be properly substantiated. ( 98 )

123.

It follows that paragraph 136 of the judgment under appeal is vitiated by an error in law. However, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment. Rather, a substitution of grounds must be made. ( 99 ) In the present case, I advise the Court to set aside that paragraph and consider that the claims of the Commission do not amount to a substantive challenge that the authority granted to the applicant’s lawyer has been properly conferred on him or her by someone authorised to do so.

124.

I shall now turn to the merits of the case, focusing in particular on the first limb of the first ground of appeal as well as the second and fifth grounds of appeal.

125.

According to the appellants, the General Court committed an error in paragraphs 152 to 211 and 398 to 403 of the judgment under appeal in not finding a breach of Article 3(2), (3), (5), (6) and (7) of the basic regulation and the principle of good administration in relation to the import data.

126.

I should start by noting that the Commission made adjustments to the import data, which are described in paragraphs 159 to 166 of the judgment under appeal. In essence, those adjustments relied on the idea that the proportions of the volumes of the various products falling within the same product code remained unchanged over time and between countries. The appellants challenged those adjustments before the General Court, taking the view that that method was based on unjustified and unreasonable assumptions, as a result of which the volumes taken into account were not based on positive evidence.

127.

In paragraph 196 of the judgment under appeal, the General Court rejected those arguments. It held that, in the absence of more accurate and more recent information of a similar or higher degree of reliability, in view of the reasonableness and plausibility of the estimates submitted by the Commission and, in the light of the broad discretion enjoyed by that institution, the volume of imports had been correctly established.

128.

Before the Court, the appellants put forward two arguments, which I shall examine below.

129.

The appellants submit that the General Court erred in ruling that the import data the Commission relied on could be considered positive evidence, and that the use thereof was justified. The reasoning in the judgment under appeal does not address the criticism regarding the assumption, on which the Commission relied, that the proportion of the volumes and prices of the products within a given code, derived from the combined nomenclature (CN) ( 100 ) in the base years, remained unchanged during the subsequent years and was applied to different origins. They submit that, by affirming that the Commission was entitled to take account of the data of the reference year, the General Court erred in law. In particular, the appellants take issue with paragraph 194 of the judgment under appeal, in which the General Court agrees with the application of the estimates on which the Commission relied in order to reject the first part of the first plea at first instance. According to the appellants, the General Court does not address their argument that the Commission was not entitled to rely on the abovementioned assumption.

130.

The appellants argue that, in the absence of supporting evidence, such an assumption cannot be reasonable and does not meet the requirement of positive evidence under Article 3(2) of the basic regulation. Import data are specifically relied on in order to assess the evolution of imports and the differences between the countries. The appellants therefore take the view that the assumption that there is no such evolution is absurd.

131.

The Commission, supported by the interveners, contends that the General Court did not err in finding that the requirement of positive evidence under Article 3(2) of the basic regulation was met.

132.

At the outset, I should recall that, according to settled case-law, the EU institutions enjoy a broad discretion in the field of, in particular, anti-dumping measures and determination of injury, by reason of the complexity of the economic, political and legal situations which they have to examine. ( 101 )

133.

In that respect, the Commission has the task, pursuant to Article 3(2) of the basic regulation, of providing positive evidence and conducting an objective examination of the data concerning the elements of injury. ( 102 )

134.

The EU judicature must therefore review not only whether errors of law exist, but also whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers. This is so, in particular, as regards the determination of injury to the EU industry, which requires an appraisal of complex economic situations. ( 103 ) Also, it is for the applicant to adduce evidence enabling the Court to find that the Commission made a manifest error of assessment when determining injury. ( 104 )

135.

Furthermore, the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to assessing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence relied on is factually accurate, reliable and consistent, but must also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it. ( 105 )

136.

In the present case, the Court has to decide whether the General Court was right to agree with the Commission’s approach of extrapolating absolute and relative volumes of imports of the product concerned for the reference years and countries to subsequent years and to other countries.

137.

As regards the use of the Eurostat data, the Court has not only held that it is appropriate to use them for the purposes of establishing an injury, ( 106 ) but that the Commission must also examine ‘with the required care’ when those data are challenged. ( 107 ) However, it is apparent from the case-law of the Court that ‘challenging’ the Eurostat data means that the parties must demonstrate the existence of substantive inaccuracies, which amount to factual errors. ( 108 ) Such a rule follows from the abovementioned case-law whereby it is for the applicant to adduce evidence enabling the Court to find that the Commission made a manifest error of assessment when determining injury. It should be noted that the appellants had argued, before the General Court, that neither the Commission nor the complainants explained why these assumptions would be warranted or reasonable, that the Commission did not try to obtain information to check the accuracy of these assumptions and, thus, that the import data are not based on positive evidence. ( 109 ) By doing so, the appellants were essentially seeking to shift the burden of proof on the Commission and absolve themselves of actually challenging the reliability of the data used.

138.

Therefore, the General Court is right to hold that, if the parties seek to dispute the reliability of data used by the Commission concerning the volume of dumped imports, they must substantiate their assertions with evidence capable of casting specific doubt on the credibility of the method or data used by that institution. ( 110 ) In the present case, the General Court did not detect such a factual error and, at this stage, the Court should refrain from reassessing the facts, which is not within its jurisdiction in an appeal.

139.

As regards the adjustments and extrapolations for the purposes of determination of injury, the Court has not set a standard of what constitutes a permissible adjustment or extrapolation. The Court should therefore assess whether the adjustments and extrapolations at issue are permissible under the reports of the WTO Appellate Body in respect of Article 3.1 of the 1994 Anti-Dumping Agreement.

140.

It that respect, in the US – Hot-Rolled Steel report, the WTO Appellate Body held that the term ‘positive evidence’ relates ‘to the quality of the evidence that authorities may rely upon in making a determination’ and that the word ‘positive’ means ‘that the evidence must be of an affirmative, objective and verifiable character, and that it must be credible’. ( 111 )

141.

Moreover, in the Mexico – Anti-Dumping Duties on Rice report, the WTO Appellate Body accepted that within the bounds of the discretion enjoyed by an investigating authority in adopting a methodology to guide its injury analysis, it is to be expected that that authority might have to rely on reasonable assumptions or draw inferences. It added, however, that, in doing so, the investigating authority must ensure that its determinations are based on ‘positive evidence’. Thus, when a determination rests upon assumptions, those assumptions should be derived as reasonable inferences from a credible basis of facts and should be sufficiently explained so that their objectivity and credibility can be verified. ( 112 ) In the case at hand, the WTO Appellate Body held that the investigating authority at issue was expected ‘to substantiate the reasonableness and credibility of particular assumptions’. ( 113 )

142.

It follows from those reports that, where the data making it possible to establish directly the existence of certain facts are not available, the investigative authority can determine the existence of injury on the basis of adjusted data drawn from reasonable inferences or reasonable assumptions. That raises the issue of what a reasonable inference or a reasonable assumption is. In my opinion, an assumption or an inference is reasonable when it is more likely than not to be true. It is an assessment of the probability of scenarios, in which reasonable inferences have a high probability of being true. First, for that purpose, when the Commission relies on an inference made on the basis of adjustments of known data, those data must be reliable and correct. Therefore, the Commission has generally recourse to Eurostat data, which have been collected under a well-established procedure that involves a sufficient level of scrutiny. Second, the adjustments must be made by applying a plausible and transparent method, thus assuring a highly probable inference, which may constitute a reasonable inference or a reasonable assumption. ( 114 )

143.

Consequently, as regards the assessment of the adjustments and extrapolations for the purposes of the determination of injury, the judicial review must be limited to checking whether the assumption relied on by the Commission is based on data that is reliable and correct and whether the adjustments are carried out by applying a plausible and transparent method. In the light of those considerations, the General Court ought to have examined whether the adjustments and extrapolations made by the Commission to the Eurostat data concerning the products concerned constitute a reasonable inference or a reasonable assumption.

144.

In the judgment under appeal, the General Court explained in great detail the manner in which the Commission made adjustments and extrapolations and whether the data used by the Commission could be legally characterised as positive evidence. ( 115 ) First, it described the projection of the 30% of the volume of dumped imports for the period after 2014. In essence, the Commission was relying on known existing data, that is the breakdown of the imported products prior to 2014. ( 116 ) Second, since the exact percentage of the breakdown of the country of origin of certain products was not known, the General Court explained the method for the purposes of estimating the percentage of the volume of imports of the product concerned according to the country of origin. ( 117 ) Third, the General Court clarified how the Commission, ex officio, deduced the volume of a specific category of products (channel gratings) by taking into account the average sales of those products made by the sampled exporting producers during the investigation period. ( 118 ) In the light of those detailed explanations, the General Court established, prima facie, that those methods were plausible and transparent. Next, the General Court went on to assess in detail the three complaints put forward by the appellants. ( 119 )

145.

In that respect, it is important to underscore that, in its assessment, the General Court found, in essence, that the Commission relied on reliable and accurate ratios concerning previous periods or different countries of origin. Thus, in paragraph 196 of the judgment under appeal, the General Court held that estimates submitted by the Commission were ‘reasonable’ and ‘plausible’. In essence, it took account of the fact that the adjustments and extrapolations relied on a credible basis and that they were appropriate. In so doing, the General Court carried out an examination of the absence of a manifest error of assessment and reasonable likelihood that the assumption is true, which, in my view, as explained above, ( 120 ) is the correct legal standard.

146.

In particular, the appellants claimed at the hearing that there were certainly changes in the proportions of products at issue and that assuming that there were no changes was ‘manifestly illogical’. They argued that, according to ‘simple logic’, the proportions of the products changed over time. In my opinion, the General Court was right to hold that the estimates were plausible and reasonable and, thus, it was reasonable for the Commission to assume that the volume of imports of the product concerned of a given CN code or a given country remained constant over time. As submitted by the interveners at the hearing before the Court, it is reasonable to assume that the demand for the two products at issue, namely urban furniture and manhole covers, was stable before and after 2014, since those two products have a rather long lifetime and since the volume of imports of those products remained stable over time. Thus, there was a high probability that the proportion of those products remained the same before 2014 when there were data on that proportion and after 2014, when those data did not exist. As explained above, the Commission relied on known data and followed a plausible and transparent method, thus assuring a conclusion with a high probability of being true. Consequently, the General Court did not err in holding that the inference drawn by the Commission was reasonable.

147.

Therefore, in view of the abovementioned reports of the WTO Appellate Body that accept ‘reasonable inferences’ ( 121 ) and the broad discretion granted to the Commission, ( 122 ) I take the view that the data relating to the product concerned can be extrapolated and adjusted as explained. ( 123 ) The adjustments and extrapolation at issue constitute positive evidence within the meaning of the reports of the WTO Appellate Body and within the meaning of Article 3(2) of the basic regulation. Thus, the General Court did not err, in paragraphs 183 to 196 of the judgment under appeal, in rejecting the criticism of the applicants and approving the estimates at issue.

148.

In their appeal, the appellants take issue with the fact that, in paragraphs 178 and 179 of the judgment under appeal, the General Court dismissed the alternative data they provided. Before the General Court, the appellants had argued that the Commission should have taken into account the Chinese customs export data, which show that there was an overstatement of the EU estimates. ( 124 )

149.

In order to avoid responding to the data actually used by the Commission, the appellants presented alternative data. In paragraphs 178 and 179 of the judgment under appeal, the General Court was right to reject the appellants’ claims by stating that it is for the applicants at first instance, if they seek to dispute the reliability of data used by the Commission concerning the volume of dumped imports, to substantiate their assertions with evidence capable of casting specific doubt on the credibility of the method or data used by that institution. Thus, the General Court recalled that an applicant cannot merely provide alternative figures, but rather must provide evidence capable of calling into question the data provided by the Commission.

150.

Under appeal, it seems that the appellants do not identify any specific error of law in that analysis, which makes that argument inadmissible. In any case, the argument should be rejected as unfounded. For the reasons I explained above, ( 125 ) the parties must substantiate their assertions with evidence capable of casting specific doubt on the credibility of the method or data used by that institution, ( 126 ) rather than just providing alternative figures from different sources. As explained above, it is for the applicant to adduce evidence enabling the Court to find that the Commission made a manifest error of assessment when determining injury. ( 127 )

151.

In those circumstances, I propose that the Court reject the first limb of the first ground of appeal as partially inadmissible and partially unfounded.

152.

The appellants claim that the General Court made an error in law in paragraphs 302 to 311 of the judgment under appeal on the ground that it examined only their arguments relating to the production costs of one of the EU undertakings (Saint-Gobain PAM), and not those relating to its profitability. In particular, in the light of the fact that Saint-Gobain PAM sold the product concerned both directly to independent customers and indirectly through related selling entities, the only way to ascertain the profit actually made by the Saint-Gobain PAM group was to compare, on the one hand, the sale prices to unrelated customers and, on the other hand, production costs of the producer and the selling, general and administrative costs (the ‘SG & A costs’) of the resellers.

153.

By taking into consideration only the production costs incurred by Saint-Gobain PAM in the context of manufacturing, irrespective of the type of sale which would then take place, the Commission failed to take into account, when calculating the overall profitability of that undertaking, the ‘hidden’ profits obtained by the producer from the sales to related entities. At the hearing, the appellants argued that the Commission excluded the costs of the independent resellers.

154.

In particular, the appellants argue that, in a situation in which the related selling entities make a profit of 2% on their sales to unrelated customers, and where the producer makes a profit of 10% on its sales to related selling entities, the real total profit of the Saint-Gobain PAM group would be the sum of the figures arrived at on the basis of those percentages. However, by applying its own method, the Commission is alleged to have concluded, in that situation, that the Saint-Gobain PAM group made a total profit of only 2%. The additional profit of 10% obtained by the producer on its sales to related selling entities remains ‘hidden’, and those sales are regarded as costs for the purposes of the injury analysis.

155.

The Commission, supported by the interveners, contends that the second ground of appeal is inadmissible.

156.

At the outset, it should be recalled that, under Article 3(2) of the basic regulation, a determination of injury is to be based on positive evidence and is to involve an objective examination of the effect of the dumped imports on prices in the EU market for like products. With regard more particularly to the effect of the dumped imports on prices, Article 3(3) of that regulation provides for the obligation to give consideration to whether there has been, for those imports, significant price undercutting as compared with the price of a like product of the EU industry, or whether the effect of such imports is instead to depress prices or prevent price increases, which would otherwise have occurred, to a significant degree.

157.

With respect to the assessment of that impact, Article 3(5) of the basic regulation provides that it must be based on the evaluation of all relevant economic factors and indices having a bearing on the state of the EU industry. That provision contains a list of factors which may be taken into account. It also states that that list is not exhaustive and that decisive guidance is not necessarily given by any one or more of those factors. ( 128 )

158.

In relation to that ground of appeal, two preliminary observations should be made.

159.

In the first place, with regard to the factors referred to in the previous point, it is important to distinguish between macroeconomic and microeconomic indicators. On the one hand, as regards macroeconomic indicators, such as production, production capacity, capacity utilisation, sales volume, market share, employment, growth, productivity, magnitude of the dumping margin and recovery from past dumping, those indicators are based on the data of the EU industry as a whole, that is, all the EU producers. ( 129 ) On the other hand, as regards microeconomic indicators, those include average unit prices, unit cost, labour costs, inventories, profitability, cash flow, investments, return on investment and ability to raise capital. It is apparent from recitals 161 to 167 of the provisional regulation that the latter factors were examined on the basis of information obtained from the replies of the sampled EU producers to the Commission’s injury questionnaire. ( 130 )

160.

The second ground of appeal seems to deal with one particular microeconomic injury indicator, namely the profitability of the EU industry. As this is a microeconomic injury indicator, the Commission has based its calculations on the replies to that questionnaire. ( 131 )

161.

In the second place, the calculation of profitability is explained in recital 161 of the provisional regulation and the results thereof appear in Table 12 of that regulation. The Commission explains that it ‘established the profitability of the three sampled Union producers by expressing the pre-tax net profit of the sales of the like product to unrelated customers in the [European] Union as a percentage of the turnover of those sales’. As explained by the Commission in its answers to the Court’s questions, it is ‘the difference between the cost of production of the group, which includes the SG & A [costs] of the related sales company, and the price paid by the first independent customer’. ( 132 ) It follows that profitability is the difference between two figures, that is, the cost of production of the undertaking, on the one hand, and the price paid by the first independent customer, on the other hand.

162.

Before the General Court, by the fifth part of the first plea in law, the appellants had stated that ‘in order to calculate the injury suffered by the EU industry, the Commission used, in the case of Saint-Gobain PAM, prices charged for resales within the group of companies to which that producer belongs (transfer pricing), without assessing whether those were [the] arm’s length purchase prices’. ( 133 ) More specifically, the appellants had argued, before the General Court, that the Commission should have used the cost of production of Saint-Gobain PAM (France) plus the respective SG & A costs of Saint-Gobain Germany, Spain and Italy and compared those costs of production to the prices of those related sales companies to the first independent client. This second method would have eliminated any artificial increase in the sales price agreed between Saint-Gobain PAM and the related companies.

163.

Before the Court, the appellants challenge the General Court’s review of the inclusion of intra-group prices in the calculation of the EU industry’s costs. ( 134 ) According to the appellants, the General Court erred in paragraphs 302 to 311 of the judgment under appeal on the ground that it examined only their arguments concerning the costs and not those concerning the profitability of Saint-Gobain PAM.

164.

In that regard, the findings of the General Court are set out in paragraphs 305 and 306 of the judgment under appeal. It established that the fact that Saint-Gobain PAM sold the product concerned not only directly to independent customers, but also indirectly through related entities, has no effect on the establishment of costs of production. It concluded in paragraph 307 of that judgment that the fact that certain sales were made through related companies did not affect the calculation of Saint-Gobain PAM’s production costs and, consequently, did not affect the assessment of the injury suffered by the EU industry.

165.

In that respect, I should emphasise that the line of argumentation of the appellants before the General Court and the Court of Justice deals with the first factor in determining profitability, that is, the cost of production. The finding whereby the determination of costs of production is not dependent on the intra-group sales is a finding of fact, which cannot be challenged on appeal. It is important to note that the General Court does not establish, contrary to the appellants’ submissions, ( 135 ) that the calculation of profits was based on the intra-group purchase price agreed between Saint-Gobain PAM and the related entities. Therefore, the line of argumentation whereby the Commission did not reveal the ‘hidden’ profits because of the intra-group sales has to be rejected, since those sales were not relevant for the determination of the costs of production.

166.

In any case, based on its explanations before the Court, it appears that the Commission did not use the intra-group profits in order to calculate the profitability of Saint-Gobain PAM. As the Commission explained, it first calculated the production cost for each product manufactured by the sampled EU producer. ( 136 ) This production cost was then compared to the sales prices charged to the first independent customer on the EU market. In other words, where the EU producer first sells the product to a related entity, the Commission uses the price charged by that related entity to the first independent customer. Therefore, the calculation of profitability did not include any price that is charged between two related entities of one EU producer. ( 137 ) Finally, on the basis of the profitability in respect of each EU sampled producer that answered the questionnaire, the Commission aggregated the data and averaged them to form the injury indicator called ‘profitability’. ( 138 ) Therefore, it seems to me that the General Court was right to hold in paragraph 306 of the judgment under appeal that, when it comes to calculating the production cost of the manufacturer, the intra-group sales prices have no bearing.

167.

I therefore do not believe that the General Court may be impugned for having accepted the Commission’s approach. The determination of injury thus appears to be based on objective elements. In those circumstances, I propose that the Court reject the second ground of appeal as unfounded.

168.

By the first limb of their fifth ground of appeal, the appellants dispute the partial inadmissibility of the third plea in law at first instance relating to the ability of different entities to assert an infringement of the rights of the defence.

169.

In the judgment under appeal, the General Court identified three situations, which are dependent on the identity of the entity making the plea. In the first situation, the CCCME acts in its own name and alleges a breach of its own procedural rights. In the second situation, the plea is made by the members of the CCCME and the other legal persons whose names are listed in Annex I to the judgment under appeal, who challenge the contested regulation on the ground that information essential for the defence of their interests was not communicated to them. The third situation includes two different scenarios. First, the other legal persons whose names are listed in that annex submit that the CCCME’s procedural rights were infringed. ( 139 ) Second, the members of the CCCME allege an infringement of their own procedural rights, resulting from the fact that the CCCME allegedly exercised its members’ procedural rights during the anti-dumping proceedings. ( 140 )

170.

The appellants take issue with the second and third situations.

171.

As regards the second situation, the appellants submit that, in paragraphs 434 to 438 of the judgment under appeal, the General Court erred in finding that the members of the CCCME and the nine other appellants had not participated in the investigation and, therefore, that their complaint alleging failure to communicate information relating to the determination of dumping and injury is inadmissible. According to the appellants, those persons had participated in the investigation since they had cooperated in the composition of the sample or had themselves been included in the sample.

172.

Those arguments raise the issue as to whether the fact of replying to the sampling questionnaire and the willingness to be part of a sample is sufficient in law to characterise an exporting producer as an interested party under the second subparagraph of Article 5(10) of the basic regulation, as a result of which that party may benefit from the procedural guarantees provided for in that regulation.

173.

Before answering that question, I should point out that the way the Commission carried out the sampling of Chinese producers pursuant to Article 17 of the basic regulation is described in recitals 22 and 23 of the provisional regulation. The Commission explained that, in order to decide whether sampling was necessary and, if so, to select a sample, it had asked all exporting producers in the PRC to provide the information specified in the notice of initiation. ( 141 ) Eighty-one exporting producers in the PRC provided the requested information and agreed to be included in the sample; 78 of them were found to be admissible to the sample. ( 142 ) On the basis of the largest representative volume of exports to the European Union, the Commission provisionally selected a sample of three cooperating producers. In accordance with Article 17(2) of the basic regulation, all known exporting producers concerned and the authorities of the PRC were consulted on the selected sample. At the request of some of the parties, the Commission changed the sample by including the five largest exporting producers to the European Union. The Mission of the PRC to the European Union expressed its support on the final sample. It follows from that description and from the explanations given by the Commission during the hearing before the Court that, in fact, there were three categories of exporting producers, that is, first, the exporting producers that replied to the notice of initiation, which thus constituted interested parties, second, those included in the sample and, third, those cooperating with the Commission for the purposes of establishing the composition of the sample.

174.

Before the General Court, the exporting producers alleged an infringement of their own rights of defence. That court rejected the third ground of annulment raised before it in so far as it was raised by the sampled exporting producers and the other cooperating exporting producers. ( 143 ) Before the Court, the appellants claim that the General Court erred in the legal characterisation of the facts. ( 144 ) According to the appellants, the persons replying to the sampling questionnaire are to be characterised as exporting producers participating in the investigation. ( 145 )

175.

In that respect, I should observe that it is common ground that certain persons cooperated in selecting the sample and were also included in that sample. In order to determine the nature of the participation of those persons in the administrative proceedings, it should be examined whether there is any overlap in the concept of participants in the investigation under Article 5(10) of the basic regulation and the participants in the sampling under Article 17 of that regulation.

176.

On the one hand, the first subparagraph of Article 5(10) of the basic regulation states that ‘the notice of initiation of proceedings shall announce the initiation of an investigation’ and, namely, ‘shall state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation’. As I already mentioned, ( 146 ) that provision is to be read with the list of interested parties set out in Article 5(11) of the basic regulation, that is the ‘exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as representatives of the exporting country and the complainants’. The appellants argue, in essence, that that list is non-exhaustive and that the persons cooperating in selecting the sample and those that were included in that sample should be given the same status as the persons in that list. Whether that list is complete or not is not explicitly provided for by the basic regulation. ( 147 )

177.

On the other hand, Article 17(1) of the basic regulation provides that, in cases where the number of complainants, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples. A company that wants to benefit from a specific duty may therefore fill in a questionnaire pursuant to Article 17(2) of that regulation, ( 148 ) which, however, constitutes only one step in the investigation.

178.

The appellants argue that, since the Commission can take any action under Article 5(10) of the basic regulation, the submission of a sampling questionnaire is the way for an exporting producer to ‘contact’ the Commission in response to a notice of initiation pursuant to that article.

179.

However, in my opinion, it cannot be inferred from the basic regulation that the act of answering the exporters’ sampling questionnaire amounts to becoming an interested party pursuant to Article 5(10) and (11) of the basic regulation. Indeed, it follows from the general scheme of the basic regulation that the concept of interested parties in that article is different from the parties referred to in Article 17 of the basic regulation.

180.

First, Article 17(1) of the basic regulation that concerns sampling allows the Commission to select a sample and, thus, to narrow down the number of parties, products or transactions in cases ‘where the number of complainants, exporters or importers, types of product or transactions is large’. ( 149 ) Therefore, the purpose of the provision is to allow the Commission to collect from and to analyse the data of a subset of actors in order to make inferences with respect to larger data. In other words, it allows the Commission to work with small and manageable amount of data rather than having to look at all the available data. It makes no sense for the Commission to have recourse to sampling questionnaires if it means that every participant in the questionnaire would become an interested party within the meaning of the second subparagraph of Article 5(10) of the basic regulation.

181.

Second, it appears from reading Article 9(6) of that regulation that there are two specific categories of actors, that is, the ‘exporters or producers which have made themselves known in accordance with Article 17 but were not included in the investigation’ and the ‘parties in the sample’. The reference to Article 17 of the basic regulation and not to Article 5 thereof seems to indicate that the persons participating in the sampling are distinct from the interested parties in Article 5(10) and (11) of that regulation.

182.

I would add that the distinction between the ‘interested parties’ and ‘exporters or foreign producers receiving questionnaires’ is also present in Article 6.1 of the 1994 Anti-Dumping Agreement, which states that ‘all interested parties in an anti-dumping investigation shall be given notice of the information’, whilst Article 6.1.1 of that agreement sets out that ‘exporters or foreign producers receiving questionnaires used in an anti-dumping investigation shall be given at least 30 days for [a] reply’.

183.

Therefore, it should be held that the basic regulation provides for varying degrees of rights of the persons subject to it, that is, the persons participating in the sampling and the interested parties participating in the investigation. It follows from that distinction that the procedural rights granted to those persons are different. As regards the interested parties, the representative association of exporters may request to inspect information (Article 6(7) of the basic regulation) and receive disclosure (Article 20(1) of the basic regulation). However, participation in sampling does not seem to confer such rights. In my opinion, it confers only a right to adopt a position on the sampling proposed by the Commission but not on other elements of the investigation.

184.

Accordingly, it seems to me that the General Court was right to distinguish the persons that have not established that they participated in the investigation or made requests seeking that the information at issue be communicated to them from the interested parties within the meaning of the second subparagraph of Article 5(10) of the basic regulation. ( 150 ) Thus, I am of the opinion that the General Court did not make any error in law when it held that the persons that cooperated solely in sampling are inadmissible to raise a plea on the ground that information that ought to have been communicated to them was not communicated to them.

185.

As regards the third situation, the appellants submit that, in paragraphs 443 to 447 of the judgment under appeal, the General Court erred in law in holding that the CCCME could defend the procedural rights only of its members for whom it was established that, during the investigation, it had received a mandate enabling it to exercise their procedural rights on their behalf, whereas the CCCME acted throughout the investigation as an entity representing the Chinese industry as a whole. ( 151 )

186.

In particular, the appellants argue that the General Court applied the wrong legal standard when it held that the CCCME was not able to exercise the procedural rights of the individual companies nor of the members concerned during the underlying proceedings. By holding that the various companies and members concerned did not have locus standi, the General Court applied an incorrect legal standard and rendered the rights of defence of the various companies and members concerned invalid. The assertion that representative associations are granted less extensive procedural rights than exporting producers is unfounded in law.

187.

In paragraph 444 of the judgment under appeal, the General Court found that an association may exercise the procedural rights of some of its members, provided that it ‘has demonstrated, during the investigation, the intention to act as the representative of certain of its members, which presupposes that those members have been identified and that the entity is in a position to establish that it has received from them a mandate enabling it to exercise those procedural rights on their behalf’. In paragraph 445 of that judgment, it held that it is ‘apparent from the file that, in the present case, the CCCME did not present itself in that manner to the Commission during the investigation, but acted, rather, throughout the investigation as an entity representing the Chinese industry as a whole’. It based that finding on the comments lodged by the CCCME on 15 September 2017 on the provisional regulation. ( 152 )

188.

In that respect, I should recall that respect for the rights of the defence is of crucial importance in anti-dumping investigations. ( 153 ) That rule is to be interpreted taking into account Article 41(2)(b) of the Charter, which includes the right of access to the file as a component of the right to good administration. The right of access to the file allows the parties to acquaint themselves with the evidence so that they can express their views effectively.

189.

In particular, in the context of the communication of information to the undertakings concerned during the investigation procedure, the respect for their rights of defence presupposes that those undertakings should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resulting injury. ( 154 ) Those requirements are enshrined in Article 20(1) and (2) of the basic regulation, which provides that exporters and their representative associations ‘may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures’.

190.

It follows from that provision that the rights of the defence are granted individually to specific entities. ( 155 ) Contrary to the General Court, I do not think that the underlying reason that the irregularity of the rights of the defence can be raised only by the person concerned is based on the fact that the nature of the infringement of those rights is subjective. ( 156 ) In that respect, I should point out that the Court has already held that the infringement of subjective rights can be defended by other persons. ( 157 ) In my opinion, the reason the rights of the defence in the anti-dumping proceedings are intuitu personae in nature stems from the fact that those rights are intimately related to the person to whom they have been granted, since only the entity at issue itself can identify the economic and legal impact of the Commission’s measures with respect to its specific situation. In other words, in the anti-dumping proceedings, since the rights of the defence concern the entity itself, only that entity may exercise those rights. The exclusive character of those rights stems from the nature of the rights of the defence in administrative proceedings, which cannot be defended by another person. ( 158 ) Therefore, the CCCME, in its capacity as a representative association, is entitled to rely on its own procedural guarantees, which stem from its own participation in the administrative procedure. ( 159 )

191.

Moreover, being a member of an association does not involve automatically transferring the procedural rights and the rights of the defence to the association in question in respect of those proceedings. Such a transfer must unequivocally occur from the members of the association in question. Where the latter exercises the procedural rights of its members, it must state clearly which members it is representing and must demonstrate the mandate of rights that it has been granted. That requirement stems from the second subparagraph of Article 5(10) of the basic regulation, which allows the interested parties to make themselves known – implying the presentation of their powers of attorney. ( 160 ) Moreover, Article 5(11) of the basic regulation distinguishes explicitly between the exporting companies and their representative associations. ( 161 )

192.

Accordingly, I take the view that the General Court was right to hold that the ability to exercise the procedural rights of some of its members during the anti-dumping proceedings is subject to the condition that the entity has demonstrated, during those proceedings – and not ex post facto – the intention to act as the representative of some of its members. As stated by the General Court, those members must be clearly identified and the association must be in a position to establish that it has received from them a mandate enabling it to exercise those procedural rights on their behalf. ( 162 ) It follows that, even if an association has the object, by virtue of its status, of representing all those involved in a particular industry, it must, if it wishes to represent the procedural rights of its members, be duly mandated by each of them in order to represent the procedural rights on their behalf.

193.

Contrary to the appellants’ arguments, the exercise of procedural rights in the anti-dumping investigation does not follow the same logic as collective actions by associations in judicial proceedings. The Court has held it to be admissible where an association represents the interests of undertakings, which are entitled to bring proceedings in their own right, without requiring a specific mandate established by the members. ( 163 ) This is justified by the procedural advantages, since it obviates the institution of numerous separate actions against the same decisions. ( 164 ) With regard to the procedural rights of interested parties in anti-dumping investigations, the situation is, however, different. Because of the individual character and scope of the rights of the defence, a collective action does not obviate the institution of numerous identical actions against the same decision, but rather combines various distinct participatory actions, which must therefore be identifiable and made explicit.

194.

In the present case, recital 25 of the contested regulation states that the CCCME was to be regarded as an interested party representing, in particular, the Chinese castings industry. ( 165 ) However, I note that that recital does not contain any indication that it represented individual exporting producers. Moreover, recitals 30 and 62 to 74 of that regulation refer to the claims made by the CCCME, but do not indicate that those claims were made on behalf of exporting producers. Therefore, the contested regulation seems to indicate that the CCCME acted on its own behalf as a representative of the Chinese cast iron industry.

195.

It should be pointed out that the appellants have not produced evidence that any of the exporting producers had given a power of attorney to the CCCME or empowered it in any other way during the administrative procedure before the Commission to represent it, or that those companies had been members of the CCCME at the relevant point in time. Accordingly, the fact that the CCCME presented itself during the anti-dumping proceedings as acting as an association representing all Chinese producers active in the sector concerned in the PRC and that it was recognised as such by the Commission is not sufficient for it to be able to exercise the procedural rights of all its members during the anti-dumping proceedings.

196.

Therefore, I am of the opinion that the General Court did not err in law in finding, in paragraph 444 of the judgment under appeal, that the possibility for an association to exercise the procedural rights of some of its members during the anti-dumping proceeding is subject to the condition that the entity has demonstrated, during the investigation, the intention to act as the representative of some of its members, which presupposes that those members have been identified and that the entity is in a position to establish that it has received from them a mandate enabling it to exercise those procedural rights on their behalf.

197.

That conclusion is not called into question by Article 20 of the basic regulation, which provides that representative associations may request information on the essential facts and considerations on the basis of which the imposition of, inter alia, definitive measures is envisaged. As noted above, that provision has to be read in the light of recital 29 of that regulation, which underscores the link with the participants’ procedural right to defend their interests. The right to disclosure under Article 20 of the basic regulation is an essential pillar of the interested parties’ rights of defence ( 166 ) and therefore requires the participation by the concerned party in the investigation in order for it to be able to subsequently complain about possible deficiencies before the EU Courts.

198.

Accordingly, I am of the opinion that the General Court was right to hold that the third plea at first instance, whereby the Commission was criticised for having refused to disclose to the appellants information relevant to the determination of dumping and injury, may be raised by the CCCME, acting on its own behalf as an association representing the Chinese industry as a whole, and to reject as inadmissible the arguments put forward in the context of that plea by the members of the CCCME and by the other legal persons whose names are listed in Annex I to the judgment under appeal. ( 167 )

199.

Consequently, I invite the Court to reject the first limb of the fifth ground of appeal.

200.

The second limb relates to the part of the judgment under appeal that deals with the CCCME’s assertion that the Commission should have provided the calculations in aggregated form, in particular as regards, first, the calculations of (i) the normal value, (ii) the effects of Chinese imports on prices and (iii) injury elimination levels and, second, estimates relating to macroeconomic indicators. ( 168 ) For the calculations underlying the examination of the microeconomic and macroeconomic indicators, enabling an assessment of the injury caused to the EU industry, the CCCME obtained overall figures by indicator and by year, set out in recitals 137 to 166 of the provisional regulation. ( 169 )

201.

By the first claim, the CCCME challenges paragraph 507 of the judgment under appeal, in which the General Court held that the presentation of confidential data in aggregated form does not necessarily mean that those data are no longer confidential and that there was no need to order disclosure of the macroeconomic injury indicators on the ground that they were confidential. ( 170 ) In particular, on the one hand, it argues that, since the Commission never claimed that the aggregated macroeconomic injury data were confidential in themselves, the General Court could not rely on this as an argument without unlawfully substituting itself for the Commission. Recital 130 of the contested regulation does not relate to the confidentiality but to the reality of the data. On the other hand, the CCCME submits that the General Court’s legal characterisation of the estimated macroeconomic injury indicators as confidential data is erroneous. The disclosure of aggregated data for the EU industry as a whole would not have enabled interested parties to verify the accuracy of those data, in particular as regards estimates.

202.

At the outset, I should emphasise that the purpose of the right of access to information and of the obligation to disclose information is to allow the parties to acquaint themselves with the evidence so that they can express their views effectively. ( 171 ) The disclosure obligation is enshrined in Article 20 of the basic regulation.

203.

As regards the argument that the Commission had never formally qualified the aggregated estimates of the macroeconomic indicator as confidential during the administrative procedure nor in its written submissions before the General Court, I should point out that the Commission contends and indeed reasserted at the hearing before the Court – and was not challenged by the appellants in that respect – that those data never existed. Since it is uncontested that the aggregated data never existed, it is clear that the Commission could not have formally qualified them as confidential during the administrative procedure or in its written submissions before the General Court. For that reason, I propose that the procedural argument raised by the appellants be rejected.

204.

As regards the argument that the sole decisive question is whether the macroeconomic data, even in aggregated form, are still confidential, I should recall that in the judgment in Timex v Council and Commission, ( 172 ) the Court held that all non-confidential information, irrespective of the source, must be disclosed in order to enable the complainant to see whether the facts had been correctly ascertained in the case. In the judgment in Al-Jubail, ( 173 ) the right of access to information was perceived and treated by the Court as part of the right to be heard. The EU institutions must act with due diligence in performing their duty to provide all the information that is necessary for the parties’ successful defence, while ensuring the protection of the complainants and the cooperating producers on whom the anti-dumping investigation relies.

205.

The duty to provide information is to be exercised in accordance with the duty of care, that is, the ‘duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case’, ( 174 ) which necessarily entails some margin of discretion for the administrative authority. According to settled case-law, the principles governing the right to information must be reconciled with the requirements of confidentiality, in particular the obligation of the institutions to respect business secrecy. ( 175 ) In that regard, the institutions’ obligation to ensure the confidential treatment of information, the disclosure of which would have a significantly adverse effect for the undertaking that had provided it, cannot deprive the other interested parties, in particular the exporters, of the procedural guarantees laid down in the basic regulation, nor deprive of their substance the rights that they enjoy pursuant to the same provisions. ( 176 )

206.

Therefore, the decision to keep data confidential entails striking a balance between the protection of the data of the EU producers (who initiate the proceedings and whose complaint is the foundation of the investigations) and the rights of the third-country exporting producers and their representative associations.

207.

In the present case, it is true that presenting the data in the form of a summary limits the possibility for the CCCME to check the accuracy of the data at issue. However, in the light of the balance that must be struck between those rights and the protection of confidential data, it should be considered that the presentation of data in that manner does not necessarily entail an infringement of the CCCME’s rights of defence. In that respect, it is important to emphasise that macroeconomic data, regardless of whether they concern producers from third countries’ or EU producers, when based on market knowledge, ought to be protected, as the cooperation of those producers constitutes the basis of the anti-dumping investigation.

208.

I should point out that the General Court has already held that the estimated production of the product at issue of the EU producers concerned, on which the Commission had relied in calculating consumption, had correctly been regarded as confidential, since it was based on the complainants’ market knowledge. The General Court accordingly went on to find that, by merely providing the total production figure, the Commission had acted in accordance with the basic regulation. ( 177 ) I agree with that approach, since anti-dumping investigations may rely on data provided by a small number of producers or a small market segment. ( 178 ) Even in an aggregated form and even when based on mere estimates, it is theoretically possible to deduce the economic data relating to specific industry actors, specific products or even a specific company and, thus, to reveal by way of inference certain business secrets.

209.

In the present case, the Commission had explained in recital 130 of the contested regulation that the data sources were actual data and ‘estimates provided by the complainants for the rest of the Union industry’. I agree with the Commission that the fact that the complainants had provided estimates for the rest of the EU industry entails that those estimates were based on their market knowledge of that industry. Submissions based on market intelligence – even if those submissions are merely estimates and even if they are in aggregated form – may reveal business secrets of the complainants or cooperating producers of the anti-dumping proceedings and are by their nature confidential, as the General Court held in paragraph 507 of the judgment under appeal. Therefore, the General Court did not err in finding in that paragraph that macroeconomic data presented in aggregated form could still be confidential. I thus propose that the Court reject the first claim.

210.

The second and third claims should be dealt with together, since they both relate to the same part of the reasoning of the judgment under appeal. First, the CCCME submits that, in paragraph 509 of the judgment under appeal, the General Court distorted the facts when it found that the aggregated undercutting calculations requested by the CCCME did not exist because undercutting had been calculated solely per product type and per exporting producer. The CCCME argues that it produced evidence in that regard and that it is impossible for the Commission to calculate undercutting without aggregating the price data at the level of the EU industry.

211.

I should start by pointing out that, in recital 24 of the contested regulation, the Commission stated that the aggregated undercutting calculations requested by the CCCME did not exist because undercutting had been calculated solely per product type and per exporting producer. Each sampled Chinese exporting producer accordingly received the undercutting calculations for each of the product types which it exported. The CCCME argues that it is impossible for the Commission to make the finding that ‘62.6% of the sampled Union producers’ total sales in the Union had been undercut’ without aggregating the undercutting calculations. ( 179 ) However, I should point out that the CCCME does not present any evidence in support of such a claim. Thus, the distortion alleged by the CCCME has not been demonstrated. The CCCME merely asserts a distortion of the facts, but fails to demonstrate such a finding.

212.

Second, the CCCME argues that the General Court applied an incorrect legal standard in finding that disclosing the undercutting calculations on an aggregated basis would be too burdensome to comply with Article 20 of the basic regulation. At the hearing, the CCCME added that the preparation of such data would barely take any time.

213.

The issue that arises is whether the Commission is required to produce new documents on the basis of existing data for the purposes of safeguarding the rights of the defence. In that respect, I should underline that the production of new documents by the Commission amounts to handing out information that concerns the complainants and other cooperating companies. Thus, since it could potentially allow the other interested parties to gain access to business secrets, it cannot be viewed as the automated creation of a table containing economic data. Rather, in view of the duty of care, which entails the duty of the Commission to examine carefully and impartially all the relevant aspects of an individual case, ( 180 ) the Commission must consider each bit of information it chooses to disclose.

214.

In practice, for each document disclosed during the anti-dumping proceedings that contains new aggregated data, the Commission must determine whether those data undermine the confidentiality of the data that the parties have entrusted to the Commission and which it holds. Thus, the generation and disclosure of new aggregated data requires the Commission to strike a balance between confidentiality and the rights of defence of the parties in question. While the Commission’s workload cannot be an objection in itself, it is a factor in the determination of that balance, since the very protection of the data of the complainants or of the cooperating parties may depend on that workload. In other words, where the Commission is systematically required to produce new aggregated data, it is also required to determine whether the disclosure of those data is such as to undermine the confidentiality of the data entrusted by the parties to the Commission. This latter requirement must be taken into account when striking that balance. Therefore, I agree with the General Court’s statement that the volume of information requested by the CCCME in the present case is such that the Commission would be impeded in its activity and in its investigation if it had to provide all that information in a form adapted to the sole needs of the CCCME. ( 181 )

215.

In paragraph 513 of the judgment under appeal, the General Court held, in essence, that the CCCME had available to it ‘the essential facts and considerations on the basis of which the Commission intended to adopt definitive measures’, and that ‘that entity was thus able effectively to defend its interests as an association representing the Chinese industry’. Therefore, on the basis of the factual assessment of the General Court, it should be considered that the CCCME was able to defend its interests, which makes any error in paragraphs 511 and 512 of the judgment under appeal ineffective.

216.

Finally, the CCCME argues, in essence, that, in paragraphs 511 and 512 of the judgment under appeal, the General Court’s finding infringes Article 20(2) of the basic regulation, since the CCCME was refused access to the requested data even though those data were not confidential or could have been disclosed in a non-confidential manner. In addition, the CCCME submits that the General Court failed to balance any concerns relating to confidentiality against the rights of the defence by refusing to communicate the macroeconomic data to the CCCME in the form of aggregated data.

217.

The CCCME’s disagreement with the General Court’s finding that the CCCME had available to it the essential facts and considerations relates to a matter of fact and cannot be challenged on appeal. The allegations put before the Court of Justice by the CCCME are not sufficient to demonstrate an error of law in the application of Article 20(2) of the basic regulation. In particular, as pointed out in paragraphs 451 to 470 and 484 to 504 of the judgment under appeal, the General Court carried out a detailed examination of the assessment made by the Commission in relation to the CCCME’s rights of defence.

218.

Consequently, I suggest the Court reject the second limb of the fifth ground of appeal.

219.

First, the CCCME argues that, in paragraph 524 of the judgment under appeal, the General Court erred in not granting that entity access to the information concerning the characteristics of the products – beyond the information contained in the product codes – on the ground that that information does not enable the entity to better safeguard its rights of defence. The CCCME submits that it is legally incorrect that only cooperating exporting producers may be entitled to formulate requests for adjustment, and that this information would therefore not be useful for the CCCME, which has overarching knowledge of the market.

220.

The CCCME submits that the General Court essentially created a subcategory of interested parties, establishing a difference between representative associations and other interested parties, which infringes Article 20(2) of the basic regulation. The CCCME argues that it is an association representing exporting producers, so that what is relevant to its members is also relevant to the CCCME. In support of its submissions, the CCCME relies on the judgment of 20 March 1985, Timex v Council and Commission, ( 182 ) arguing that the Commission was required, at a minimum, to provide all the information necessary to enable it to identify the items in question so that it could ascertain whether the institutions had established the facts correctly. ( 183 )

221.

At the outset, I should point out that the General Court weighed the concerns regarding the rights of the defence and confidentiality, as is apparent from paragraphs 451 to 470 and 484 to 504 of the judgment under appeal, which have not been contested.

222.

As regards the requested access to the information concerning the characteristics of the products, the CCCME criticised the Commission before the General Court for not having communicated to it, as regards the products of Indian and EU producers which were compared with the imported products, information other than the characteristics set out in the product codes. In paragraphs 523 and 524 of the judgment under appeal, the General Court makes a distinction between the situation of the exporting producer and the CCCME. The latter is, in the present case, an association representing the Chinese industry as a whole. ( 184 ) The General Court held that the information concerning the characteristics of the products would not enable the CCCME to make a meaningful comparison of the products in question, since it does not generally have models of products placed on the market by the sampled Chinese exporting producers, which were compared with Indian products.

223.

That assessment does not seem to me to be vitiated by an error of law even if it creates a differentiation between the essential facts and considerations made available to a representative association and those made available to other interested parties. I am of the opinion that the Commission may make a distinction between representative associations and exporting producers, since it needs to strike a fair balance between the rights of the defence and the protection of confidentiality. ( 185 ) Since the information relates to the characteristics of the products and, as such, constitutes a business secret, the Commission must protect it. It follows that the Commission, when striking the aforementioned balance, can and should distinguish between the entities requesting the access to that information.

224.

Second, the CCCME criticises paragraph 529 of the judgment under appeal in which the General Court held that during the anti-dumping proceedings, the CCCME had at its disposal all the information in relation to the method used by the Commission in order to calculate the import volumes. According to the CCCME, such assessment disregards the fact that the data on the import in question were not publicly available information. The determination of the import volumes consisted of a highly complex calculation based on several assumptions, and the data were mainly based on information and methodology provided by the complainants. The CCCME argues that it is entirely unreasonable to expect an interested party to replicate such a complicated calculation that has several different stages and includes several assumptions, when the Commission could have easily disclosed this, since it did not contain confidential information and since those data and calculations constituted essential facts and considerations.

225.

At the outset, I should point out certain findings of fact established by the General Court.

226.

First, the CCCME had been informed, during the anti-dumping proceeding, of the method used by the Commission to calculate the import volumes. In particular, the CCCME was aware of (i) the percentages recorded for imports originating in the PRC, in India and in other third countries in relation to the former subcodes which were used before the introduction in 2014 of CN General Code ex73251000, (ii) the fixed amount to be deducted from CN code ex73259910 in order to obtain imports originating in the PRC, in India and in other third countries, and (iii) the percentage to be deducted from total imports in order to exclude channel gratings.

227.

Second, since the data used to determine those imports were extracted from statistics provided by Eurostat, which are available in the Comext database, the CCCME had at its disposal all the information necessary to reproduce the Commission’s calculations for which it requested disclosure.

228.

Therefore, if the CCCME wished to verify the reliability of the calculations made by the Commission, it had the relevant data to do so. In the present case, the CCCME does not substantiate in any way the claim that it is not able to reproduce the calculations. It is reasonable to expect that an interested party, such as the CCCME, verifies the calculations at issue itself. For example, in the judgment in Bricmate, ( 186 ) the interested parties disputed the accuracy of the average import prices of the products at issue in respect of certain Member States. Therefore, the doubts raised by the national court, which led to a review of the anti-dumping measures, were substantiated. ( 187 ) Consequently, in my view, the General Court was right to hold that the CCCME had at its disposal all the information necessary to reproduce the Commission’s calculations for which it requested disclosure. ( 188 )

229.

Third, the CCCME takes issue with the assessment in paragraph 538 of the judgment under appeal on the ground that the General Court erred in qualifying as confidential the actual aggregated data and the estimates. The CCCME argues that, since those data were not confidential, they must be communicated to the interested parties in accordance with Article 6(7) of the basic regulation and constituted essential facts and considerations under Article 20(2) of that regulation.

230.

It should be pointed out that the CCCME disputes the finding in paragraph 538 of the judgment under appeal that the Commission is not required to make such a distinction when assessing the injury to the European Union, since the injury is assessed for the EU industry as a whole. Although that is true, that assessment criterion is not sufficient to justify the failure to communicate the actual aggregated and estimated data at issue. Thus, the Commission may be required to generate that document in order to safeguard the rights of the defence. Nevertheless, in the present case, the General Court has held – and that finding has not been challenged by the CCCME on appeal – that the actual data of the sampled producers and of the other complainants, on the one hand, and the estimates made for the remaining producers, on the other hand, are confidential, even when aggregated. In my opinion, those reasons are sufficient to justify not communicating those data to the CCCME.

231.

Accordingly, I suggest the Court rejects the third limb of the fifth ground of appeal and that ground of appeal in its entirety.

232.

The Court has asked me to consider the pleas of inadmissibility and the first limb of the first ground of appeal, as well as the second and fifth grounds of appeal alone. Since the ultimate disposal of the appeal will depend on the position that the Court adopts in relation not only to those pleas and grounds of appeal but also to the second limb of the first ground of appeal and the third and fourth grounds of appeal, I do not make any recommendation as to costs in this case.

233.

In the light of the foregoing and without prejudging the Court’s assessment of the second limb of the first ground of appeal and the third and fourth grounds of appeal, I suggest that the Court dismiss the appellants’ first limb of the first ground of appeal as well as the second and fifth grounds of appeal.