5 October 2022 (*)

(Action for annulment – Dumping – Imports of aluminium flat-rolled products originating in China – Imposition of a definitive anti-dumping duty – Importer – Regulatory act entailing implementing measures – Act not of individual concern – Inadmissibility)

In Case T‑1/22,

Airoldi Metalli SpA,

established in Molteno (Italy), represented by M. Campa, D. Rovetta, P. Gjørtler and V. Villante, lawyers,

applicant,

European Commission,

represented by M. Gustafsson and G. Luengo, acting as Agents,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed, at the time of the deliberations, of S. Gervasoni (Rapporteur), President, L. Madise and R. Frendo, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure, in particular:

–the objection of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court by the Commission, by separate document lodged at the Court Registry on 18 March 2022,

–the observations on that objection lodged by the applicant at the Court Registry on 2 May 2022,

having regard to the application for leave to intervene lodged by European Aluminium at the Court Registry on 4 April 2022 in support of the Commission,

makes the following

1By its action under Article 263 TFEU, the applicant, Airoldi Metalli SpA, seeks annulment of Commission Implementing Regulation (EU) 2021/1784 of 8 October 2021 imposing a definitive anti-dumping duty imposed on imports of aluminium flat-rolled products originating in the People’s Republic of China (OJ 2021 L 359, p. 6; ‘the contested regulation’).

Background to the dispute

2Following a complaint lodged by an association representing European producers of aluminium flat-rolled products (‘the product concerned’), the European Commission published, on 14 August 2020, a notice of initiation of an anti-dumping proceeding concerning imports of the product concerned originating in the People’s Republic of China (OJ 2020 C 268, p. 5), under Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), as amended (‘the basic regulation’).

3For the purposes of the anti-dumping proceedings and investigation, the Commission decided, in accordance with Article 17 of the basic regulation, to rely on a sample of unrelated importers. The applicant, which is an importer of the product concerned, was included in that sample.

4The applicant submitted its observations on several occasions during the proceedings, on its own initiative or in response to requests from the Commission, and was heard by the Commission on 10 May and 23 July 2021. In addition, on 28 May 2021, it requested the suspension or termination of the anti-dumping investigation on account of the situation on the aluminium market.

5On 8 October 2021, the Commission adopted the contested regulation, which imposes the following definitive anti-dumping duties:

Company

Definitive anti-dumping duty rate (%)

Jiangsu Alcha Aluminum Group Co., Ltd

14.3

Nanshan Group:

–Shandong Nanshan Aluminium Co., Ltd,

–Yantai Nanshan Aluminum New Material Co., Ltd,

–Longkou Nanshan Aluminum Rolling New Material Co., Ltd,

–Yantai Donghai Aluminum Foil Co., Ltd

19.1

Xiamen Xiashun Aluminium Foil Co., Ltd

21.4

Other cooperating companies (Annex)

19.0

All other companies

24.6

6On the same day, those duties were suspended for a period of nine months by Commission Implementing Decision (EU) 2021/1788 of 8 October 2021 suspending the definitive anti-dumping duties imposed by Implementing Regulation 2021/1784 (OJ 2021 L 359, p. 105). However, after the present action was brought, they were reimposed with effect from 12 July 2022, pursuant to Article 2 of Commission Implementing Decision (EU) 2022/1178 of 7 July 2022 not to prolong the suspension of the definitive anti-dumping duties imposed by Implementing Regulation 2021/1784 (OJ 2022 L 183, p. 71).

Forms of order sought

7The applicant claims that the Court should:

–annul the contested regulation;

–order the Commission to pay the costs.

8In its objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the Court should:

–dismiss the action as inadmissible;

–order the applicant to pay the costs.

Law

9Under Article 130(1) and (7) of the Rules of Procedure, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission has requested the Court to give a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling on that request without taking further steps in the proceedings.

10The Commission submits that the present action is inadmissible on the ground that the contested regulation entails implementing measures and is not of individual concern to the applicant.

11It should be borne in mind, as a preliminary point, 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 an act addressed to that person (first limb) or which is of direct and individual concern to them (second limb), and against a regulatory act which is of direct concern to them and does not entail implementing measures (final limb).

12In the present case, since the applicant is not the addressee of the contested regulation, it is necessary to determine whether it may bring an action for annulment against that regulation under the second or final limb of the fourth paragraph of Article 263 TFEU.

13It can at the outset be observed – as the parties, moreover, do not dispute – that, in accordance with settled case-law, regulations which impose definitive anti-dumping duties, such as the contested regulation, are regulatory acts (orders of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 65, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 56) and that such regulations are considered to be of direct concern to importers, such as the applicant (see order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 26 and the case-law cited). The applicant may therefore have standing to bring proceedings against the contested regulation if that regulation does not entail implementing measures or if it is of individual concern to it. It is therefore necessary to determine whether the contested regulation entails implementing measures and, if so, whether it is of individual concern to the applicant.

Whether the contested regulation entails implementing measures

14The Commission submits that it is apparent from the provisions governing the customs system and those of the basic regulation, which provide for the collection of anti-dumping duties by the Member States’ customs authorities, as interpreted by case-law (order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53), that the notification of the corresponding customs debt by those authorities constitutes, for the debtor – which, in the present case, is the importer of the product concerned – an implementing measure for the contested regulation. It states that neither the fourth paragraph of Article 263 TFEU nor the case-law requires that the absence of the implementing measure be manifest. The Commission also adds that the applicant could challenge before the national courts the implementing measures taken by the national customs authorities.

15The applicant replies that the contested regulation does not entail implementing measures. It submits that the case-law derived from the order of 21 January 2014, Bricmate v Council (T‑596/11, not published, EU:T:2014:53), according to which the communication by the national authorities of the amount of duty to be paid constitutes, from the point of view of the debtor, a measure for implementation of the regulation imposing definitive anti-dumping duties, is not applicable in the present case. The national authorities’ discretion which justified that outcome does not exist in a case such as the present where the Commission has, during the prior proceedings, carefully analysed and decided upon the specific application of the anti-dumping duty, which is, moreover, confirmed by recent case-law. In addition, the case-law derived from the order of 21 January 2014, Bricmate v Council (T‑596/11, not published, EU:T:2014:53), was delivered under the Customs Code previously in force, whereas the Customs Code in force since 2016 has significantly diminished the involvement of national customs officials in the application of EU customs rules. In the absence of controls by the national customs authorities, which were not carried out in the present case, as is apparent from the documents produced by the applicant, the determination and payment of the anti-dumping duties are made exclusively on the basis of the importer’s declaration, which in those circumstances is regarded as immediately accepted. Lastly, according to more recent case-law, where it is not manifest that a regulatory act entails implementing measures, that is to say, where there is doubt as to the existence of such measures, the applicant must be recognised as having standing to bring proceedings against that act.

16It is settled case-law that the existence of implementing measures for a regulatory act of the European Union, under the fourth paragraph of Article 263 TFEU, must be examined in the light of the objective which that provision pursues, namely to enable natural and legal persons to bring an action against acts of general application which are not legislative acts, which are of direct concern to them and which do not entail implementing measures, thereby avoiding a situation in which such a person would have to break the law in order to have access to justice (order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 66; see also, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 49).

17It is therefore necessary to examine whether the regulatory act of the European Union is implemented by another act which may be challenged by the person to whom it is addressed either before the General Court or before the courts and tribunals of the Member States (see, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraphs 50 and 51, and order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 67).

18It must be clarified that, contrary to what is claimed, in essence, by the applicant, the examination at issue does not consist in determining whether the contested regulation manifestly entails implementing measures.

19It is true that it is apparent from the case-law delivered in reply to questions referred for a preliminary ruling, cited by the applicant, that the Court of Justice was able to hold that the contested acts manifestly did not entail implementing measures (judgments of 12 December 1996, Accrington Beef and Others, C‑241/95, EU:C:1996:496, paragraph 15, and of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 39). However, as is noted in paragraph 28 of the judgment of 18 October 2018, Rotho Blaas (C‑207/17, EU:C:2018:840), that determination corresponds to the criterion of admissibility not of actions for annulment brought under Article 263 TFEU, but of questions referred for a preliminary ruling on validity, which are inadmissible if a direct action before the General Court against the act whose validity is at issue would have been manifestly admissible. It is clear from case-law that where it may be considered that a person would have undoubtedly been entitled to seek the annulment of the act concerned – in particular because it does not manifestly entail implementing measures – that person is precluded from pleading its invalidity before the national court having jurisdiction (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23, and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18). That case-law, which is intended to facilitate access to the courts for a preliminary ruling, cannot therefore be transposed to the analysis, by the court hearing an action for annulment, of the admissibility of actions brought before it, which remains subject, in the case of a regulatory act of direct concern to the applicant, to the condition that it is established that there are no implementing measures.

20It is therefore necessary to determine in the present case, in accordance with the case-law pursuant to which, first, regard must be had to the position of the person pleading the right to bring proceedings and, secondly, reference should be made exclusively to the subject matter of the action (judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraphs 30 and 31, and order of 12 January 2017, Amrita and Others v Commission, C‑280/16 P, not published, EU:C:2017:9, paragraphs 36 and 37), whether the contested regulation, the purpose of which is to impose anti-dumping duties to be paid by importers, entails implementing measures with regard to the applicant, which is an importer of the product concerned.

It is apparent from settled case-law, arising under the provisions of the Community Customs Code dating from 1992 (Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended; ‘the 1992 Customs Code’) and reproduced pursuant to the provisions of the 2013 Union Customs Code (Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code (OJ 2013 L 269, p. 1), as amended; ‘the 2013 Customs Code’), applicable to the present case, that regulations which impose definitive anti-dumping duties entail implementing measures with regard to importers liable to pay those duties consisting in the communication or notification to the importer of the customs debt to which those duties give rise (judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraphs 38 and 39; orders of 5 February 2013, BSI v Council, T‑551/11, not published, EU:T:2013:60, paragraph 53; of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 72; of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 33; judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 116; and order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 66).

In particular, in order to implement Article 14(1) of the basic regulation, under which definitive anti-dumping duties are to be collected by Member States, Article 101(1) of the 2013 Customs Code provides that ‘the amount of import or export duty payable shall be determined by the customs authorities responsible for the place where the customs debt is incurred’, without any exception for definitive anti-dumping duties being provided for in that regard. In addition, pursuant to Article 104(1) of that code, the customs authorities referred to in Article 101 are to enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that article. Lastly, Article 102 of the Customs Code provides, in paragraph 1, that the customs debt is to be notified to the debtor by the customs authorities in the form prescribed at the place where the customs debt is incurred, and states, in paragraph 2, that where the amount of duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities is to be equivalent to notifying the debtor of the customs debt.

Contrary to what the applicant claims, it cannot therefore be inferred from the amendment of the customs legislation that, under the 2013 Customs Code, which is applicable in the present case, regulations imposing definitive anti-dumping duties no longer entail implementing measures with regard to importers. That is all the more so since the provisions of the 2013 Customs Code, referred to in paragraph 22 above, differ very little from those previously in force. The determination of the amount of duty by the national customs authorities, the communication of that amount to the debtor by those authorities and the fact that release of the goods is equivalent to communicating the customs debt to the debtor where the amount of that debt is equal to the amount declared by the importer were already provided for by Articles 217 and 221 of the 1992 Customs Code.

Those considerations are not called into question by the applicant’s argument that that analysis fails to take account of the introduction by Title IX of the 2013 Customs Code of ‘electronic systems’ for the purposes of implementing that code.

Admittedly, it is clear from the provisions of Title IX of the 2013 Customs Code and from the provisions adopted by the Commission pursuant to Title IX that ‘exchanges of information, such as declarations, applications or decisions, between customs authorities and between economic operators and customs authorities … as required under the customs legislation, shall be made using electronic data-processing techniques’ (Article 6(1) of the 2013 Customs Code).

Nevertheless, as is clear from the very wording of that provision and as is also apparent from the provisions of the 2013 Customs Code referred to in paragraph 22 above, that computerisation concerns exchanges between economic operators and customs authorities and does not as such mean, in any case, that imports of products and the payment of anti-dumping duties henceforth involve only economic operators without any subsequent involvement by national customs authorities.

It follows that the contested regulation can have effect only after the importer makes a customs declaration (see, a contrario, judgment of 14 January 2016, Doux v Commission, T‑434/13, not published, EU:T:2016:7, paragraphs 60 to 64), which is itself necessarily followed by a measure adopted by the national customs authorities. It is true that, in most cases and where there is no control, this is limited to an electronic communication consisting in the generation by the electronic customs system, which is the responsibility of the national customs authorities, of a decision accepting the customs declaration submitted, an acceptance taking the form of the allocation of a release code which allows the goods concerned to be released for free circulation (order of 2 May 2022, Airoldi Metalli v Commission, T‑328/21, under appeal, EU:T:2022:277, paragraph 30). The involvement of the national customs authorities in the form of a control, followed in that event by communication of the results of the control and any rectified amount of the duty payable, is thus more infrequent. However, even where the national authorities’ involvement is limited to that electronic communication, the fact remains that a measure is thus adopted by those authorities. The absence of control of the applicant’s goods, relied on by the applicant in the present case, is therefore irrelevant.

The applicant’s claim that the national customs authorities are left with no discretion in their implementation of the contested regulation where they opt not to carry out a control is also irrelevant. Apart from the fact that that claim could be considered to reflect recognition of the need for implementation by the national authorities, it should be borne in mind that, in accordance with settled case-law, lack of discretion is a factor to be examined for the purpose of determining whether the condition that an applicant is directly concerned has been satisfied, which, in accordance with the wording of the fourth paragraph of Article 263 TFEU, constitutes a condition that is distinct from the requirement for an act which does not entail implementing measures (see, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 54 and the case-law cited, and order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 74 and the case-law cited).

In addition, to infer from the automation introduced by the 2013 Customs Code that the contested regulation does not entail implementing measures would amount to making assessment of the legal criterion of there being no implementing measures for an act subject to purely technical circumstances. Such a simplification of a substantive nature, which, moreover, is justified by the national authorities’ lack of discretion, cannot have such consequences (see, to that effect, order of 5 February 2013, BSI v Council, T‑551/11, not published, EU:T:2013:60, paragraph 49).

Nor is it relevant, which the applicant does not moreover claim, that the collection of the definitive anti-dumping duties imposed by the contested regulation was, as noted in paragraph 6 above, suspended at the time the present action was brought. That suspension affects the date of applicability and collection of the anti-dumping duties at issue and not the need for implementing measures, which will naturally follow the contested regulation when it is applied (see, to that effect, orders of 12 January 2017, Amrita and Others v Commission, C‑280/16 P, not published, EU:C:2017:9, paragraph 47, and of 7 April 2014, Doux v Commission, T‑434/13, not published, paragraphs 44 to 47), that is to say, from 12 July 2022 pursuant to Article 2 of Implementing Decision 2022/1178.

Lastly, it may be noted that it is clear from Article 44 of the 2013 Customs Code, as from the provisions previously in force (Articles 243 to 245 of the 1992 Customs Code), that decisions taken by the customs authorities relating to the application of the customs legislation may be appealed, in accordance with the procedure laid down for that purpose by the Member State in question pursuant to that provision, with, where relevant, the illegality of the regulation imposing anti-dumping duties being pleaded before the national courts, which may, before giving judgment, have recourse to the provisions of Article 267 TFEU (see, to that effect, order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraphs 67 and 68 and the case-law cited).

It is apparent from all of the foregoing that the contested regulation entails implementing measures with regard to the applicant.

It follows that, in order for its action to be declared admissible, the applicant must show that that regulation is of individual concern to it.

Whether the applicant is individually concerned

The Commission contends that the contested regulation is not of individual concern to the applicant. First of all, the applicant is not – and, moreover, does not claim to be – in a situation where its resale prices were used for the construction of export prices. Next, it is an independent, unrelated importer, which is not associated with the exporting producers of the product concerned. Lastly, the applicant has also failed to demonstrate the existence of a set of factors constituting a situation peculiar to it within the meaning of the line of authority derived from the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), since the extent of its involvement in the anti-dumping proceedings is essentially due to the proliferation of its own procedural steps, the fact that it may be more economically affected than its competitors is not sufficient, it is not the largest importer of the product concerned, and nor does it depend to a very large extent on those imports.

The applicant claims, on the contrary, that the contested regulation is of individual concern to it. It maintains, inter alia, that it would be contrary to the principle of equal treatment for a stricter approach to be applied to importers than is applied to exporters. The applicant relies on its particular situation, 53% of its business being dependent on the Chinese exports which are referred to in the contested regulation. It states, in that regard, that the authority derived from the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), is purely illustrative, meaning that the admissibility of its action is not conditional on proof that it is in exactly the same commercial situation as Extramet. The applicant also points to developments in the interpretation given in the case-law of the criterion of individual concern and emphasises, in that regard, its very active participation in the proceedings and its strong influence on the Commission’s calculation of the injury and dumping margins, which, it submits, bring it in line with the situation of the importers whose action was held to be admissible on the ground that their data formed the basis for the finding that dumping had taken place or the calculation of the anti-dumping duty. It emphasises, in particular, the unprecedented role played by its data and requests on Implementing Decision 2021/1788 suspending the duties imposed by the contested regulation.

In accordance with settled case-law, while it is true that, in the light of the criteria set out in the fourth paragraph of Article 263 TFEU, regulations imposing anti-dumping duties are, as regards their nature and their scope, of a legislative character, inasmuch as they apply to all the traders concerned, their provisions may nonetheless be of individual concern to certain traders. It follows that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders which therefore have standing to bring an action for their annulment (see judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraphs 13 and 14 and the case-law cited, and order of 27 January 2006, Van Mannekus v Council, T‑280/03, not published, EU:T:2006:32, paragraphs 108 and 109 and the case-law cited).

The Courts of the European Union have thus recognised that regulations imposing anti-dumping duties may be of individual concern to exporting producers of the product concerned which have been charged with practising dumping as well as to importers of that product. While exporting producers are regarded as individually concerned where they are identified in the measures adopted by the Commission or were concerned by the preliminary investigations (judgment of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12; see, also, judgment of 11 July 1996, Sinochem Heilongjiang v Council, T‑161/94, EU:T:1996:101, paragraph 46 and the case-law cited), importers must prove, inter alia, in order to be recognised as individually concerned, that, due to particular circumstances, such as their association with the exporting producers, their data form the basis either for the finding that dumping has taken place or for the calculation of the anti-dumping duty itself, so as to distinguish them in the same way as the exporting producers of the product concerned which are charged with practising dumping based on data relating to their commercial activities (see, to that effect, judgments of 11 July 1990, Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraph 20, and of 26 September 2000, Büchel v Council and Commission, T‑74/97 and T‑75/97, EU:T:2000:215, paragraph 54 and the case-law cited). As the Commission rightly states, that difference in demonstrating individual concern is explained by the very nature of the anti-dumping proceedings, which are intended to examine the conduct of the exporting producers responsible, by definition taken into account as perpetrators of dumping practices, and not that of importers.

It follows that, contrary to the applicant’s claim, there is no breach of the principle of equal treatment in requiring exporting producers and importers to provide different evidence to prove that the contested regulation is of individual concern to them.

It also follows that it is necessary to examine in the present case whether the applicant, as an importer of the product concerned, has proved that the data relating to its commercial activities were taken into account for the purposes of establishing dumping or calculating anti-dumping duties or, failing that, whether it has proved other attributes which are peculiar to it and which differentiate it from all other persons (judgment of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraph 37, and order of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 33).

In that regard, the applicant puts forward two sets of arguments based on, first, its active participation in the anti-dumping proceedings and, secondly, its dependence on the Chinese exports subject to anti-dumping duties (see paragraph 37 above).

As regards, in the first place, the applicant’s participation in the proceedings which led to the adoption of the contested regulation, it should be borne in mind that, in accordance with settled case-law, although the participation by an undertaking in anti-dumping proceedings may be taken into account, among other factors, in order to establish that that undertaking is individually concerned by the regulation imposing anti-dumping duties adopted at the conclusion of those proceedings, if there are no other factors giving rise to a particular situation which differentiates that undertaking from all other traders, with respect to the measure in question, such participation does not, of itself, give rise to a right enabling the undertaking to bring a direct action against that regulation (judgments of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 61, and of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 34).

The same applies to the reference in a regulation imposing anti-dumping duties to the name of an undertaking. Since the mere participation of an undertaking in anti-dumping proceedings is not sufficient, in the absence of other factors, to give rise to a right enabling that undertaking to bring a direct action against the regulation in question, an applicant cannot derive that right from the reference to its name in one or more recitals of that regulation, since that reference merely records its participation in the proceedings (see judgment of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 35 and the case-law cited).

Thus, as the Commission rightly states, the applicant’s standing to bring proceedings cannot be inferred merely from its voluntary participation in the anti-dumping proceedings, even if, as in the present case, that participation was very active and the applicant was referred to multiple times in the contested regulation.

Nor is it sufficient that the applicant’s participation in the proceedings before the Commission may be considered to have affected the outcome of those proceedings. Neither the Court of Justice in the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), nor the General Court in its case-law subsequent to that judgment, adopted that criterion proposed by Advocate General Jacobs in his Opinion in Extramet Industrie v Council (C‑358/89, EU:C:1991:144, point 66) in order to hold that it was sufficient to prove individual concern (order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 44, and judgment of 3 May 2018, Distillerie Bonollo and Others v Council

, T‑431/12, EU:T:2018:251, paragraphs 83 and 84). Accordingly, there have not on that point been the case-law developments alleged by the applicant, which has not, moreover, referred to any judgment or order in support of its claim.

Furthermore, even if the applicant’s intervention did have an impact on the calculation of the injury and dumping margins, as it claims, the applicant does not refer to any data of its own which was taken into account for the purpose of establishing the existence of dumping or calculating the anti-dumping duties, within the meaning of the case-law cited in paragraph 37 above. Thus, the applicant has not established to the requisite legal standard that it is individually concerned on the basis of the use of its own data in such a way as to differentiate it from all other persons and therefore to distinguish it individually as in the case of the addressee of a decision (see, to that effect, judgment of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 58, and order of 27 January 2006, Van Mannekus v Council, T‑280/03, not published, EU:T:2006:32, paragraph 113 and the case-law cited).

In that sense, the applicant’s participation in the anti-dumping proceedings differs from that of the importer concerned in the case which gave rise to the judgment of 10 March 2021, Von Aschenbach & Voss (C‑708/19, EU:C:2021:190). Not only had that importer participated in the investigation, but the Commission had also stated in the recitals of the regulation at issue, after analysing the data relating to the importer, that it could not, based on its involvement in the circumvention of the anti-dumping measures in force, be exempted from the duties imposed by that regulation by reason of that circumvention (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraphs 44 and 45).

The applicant’s role in adopting Implementing Decision 2021/1788 suspending the anti-dumping duties imposed by the contested regulation is a fortiori irrelevant in the present case. Without it being necessary to determine the actual impact of the data and requests of the applicant on that suspension, it is sufficient to note that that suspension was decided upon by a separate act from the contested regulation, the only act in respect of which the applicant’s standing to bring proceedings is examined in the present action.

The fact remains, however, that an undertaking’s participation in anti-dumping proceedings may, together with other factors, help to prove that the regulation imposing the anti-dumping duties adopted at the conclusion of those proceedings is of individual concern to that undertaking (see paragraph 42 above).

As regards, in the second place, its dependence on Chinese exports, which the applicant claims in that regard, it should be borne in mind that case-law requires, in order to accept that an importer is individually concerned by virtue of the economic repercussions of the imposition of an anti-dumping duty, the existence of a set of factors constituting a situation peculiar to it which differentiates the importer from all other traders in relation to the measure at issue. In particular, it has been acknowledged that an importer was individually concerned where it had proved, first, that it was the largest importer of the product covered by the anti-dumping measure and, at the same time, the end user of that product, secondly, that its business activities depended, to a very large extent, on those imports and, thirdly, that they were seriously affected by the regulation at issue, in view of the limited number of manufacturers of the product concerned and of the difficulties which it encountered in obtaining supplies from the sole EU producer, which, moreover, was its main competitor for the processed product (judgments of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17, and of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 50; together, ‘the Extramet case-law’).

It is apparent from the case-law, as the applicant rightly states, that the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), did not establish an exhaustive list of the criteria to be satisfied by an unrelated importer in order to be regarded as individually concerned by a regulation imposing anti-dumping duties and it cannot, therefore, be ruled out that other factors may, to that end, be taken into consideration by the EU judicature (judgment of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 56).

However, in the present case, first, the applicant confined itself to arguing that 53% of its business depended on the exports covered by the contested regulation. Without it being necessary to rule on whether that rate is accurate, it should be stated that that is the only factor put forward by the applicant in support of its arguments that the contested regulation is of individual concern to it within the meaning of the Extramet case-law and no further details are provided in terms of the economic repercussions, whereas that case-law, without setting out an exhaustive list of relevant factors, nevertheless presupposes that there are a number of such factors (see, to that effect, judgment of 15 October 1998, Industrie des poudres sphériques v Council, T‑2/95, EU:T:1998:242, paragraph 52, and order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 65). In particular, it can be noted in that regard that the Commission states, without being challenged by the applicant, that the applicant imported only 0.5% of the product concerned, which does not support a finding that it was the largest importer of that product within the meaning of the Extramet case-law.

It should also be noted that the supply of the product concerned from producers other than the Chinese exporting producers is not inconceivable in the present case, as is apparent from the applicant’s replies to the questionnaire sent by the Commission to the sample of unrelated importers, in which it states that it purchases the product concerned mainly from European producers and also buys significant quantities from Russia, Turkey and South Africa.

Secondly, even if the dependence alleged and the highly damaging impact of the contested regulation on the applicant’s business were proved, the applicant does not claim, still less prove, that that situation is sufficient to differentiate it from all other operators importing the product concerned. In particular, the possibility that other importers might import quantities comparable to, or even greater than, those of the applicant or are just as concerned as, or more concerned than, the applicant is in no way ruled out (see, to that effect, judgment of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 43, and order of 21 January 2014, Bricmate v Council, T‑596/11, not published, EU:T:2014:53, paragraph 55 and the case-law cited).

It follows from all of the foregoing that the contested regulation is not of individual concern to the applicant, with the result that the present action must be dismissed as inadmissible. Accordingly, there is no longer any need to adjudicate on the application for leave to intervene submitted by European Aluminium.

Costs

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay, in addition to its own costs, the costs incurred by the Commission, in accordance with the form of order sought by the Commission. Furthermore, pursuant to Article 144(10) of the Rules of Procedure, European Aluminium must be ordered to bear its own costs relating to its application to intervene.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.Airoldi Metalli SpA shall bear its own costs and pay those incurred by the European Commission.

3.European Aluminium shall bear its own costs relating to its application for leave to intervene.

Luxembourg, 5 October 2022.

Registrar

President

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Language of the case: English.