21 September 2023 (*1)

(Appeal – Dumping – Implementing Regulation (EU) 2018/140 – Imports of certain cast iron articles originating in the People’s Republic of China and in India – Definitive anti-dumping duty – Action for annulment – Admissibility – Standing to bring proceedings – Representative association of exporters – Regulation (EU) 2016/1036 – Article 3(2), (3), (6) and (7) – Injury – Calculation of the import volume – Positive evidence – Objective examination – Extrapolation – Calculation of the EU industry’s cost of production – Prices charged intra-group – Causal link – Assessment of injury by segment – None – Article 6(7) – Article 20(2) and (4) – Procedural rights)

In Case C‑478/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 August 2021,

China Chamber of Commerce for Import and Export of Machinery and Electronic Products, established in Beijing (China),

Cangzhou Qinghong Foundry Co. Ltd, established in Cangzhou City (China),

Botou City Qinghong Foundry Co. Ltd, established in Botou City (China),

Lingshou County Boyuan Foundry Co. Ltd, established in Sanshengyuan Town (China),

Handan Qunshan Foundry Co. Ltd, established in Xiaozhai Town (China),

Heping Cast Co. Ltd Yi County, established in Liang Village (China),

Hong Guang Handan Cast Foundry Co. Ltd, established in Xiaozhai Town,

Shanxi Yuansheng Casting and Forging Industrial Co. Ltd, established in Shenshan (China),

Botou City Wangwu Town Tianlong Casting Factory, established in Wangwu Town (China),

Tangxian Hongyue Machinery Accessory Foundry Co. Ltd, established in Beiluo Town (China),

represented by R. Antonini, avvocato, B. Maniatis and E. Monard, avocats,

appellants,

the other parties to the proceedings being:

European Commission, represented initially by T. Maxian Rusche and P. Němečková, and subsequently by K. Blanck, P. Němečková and T. Maxian Rusche, and finally by T. Maxian Rusche and P. Němečková, acting as Agents,

defendant at first instance,

EJ Picardie, established in Saint-Crépin Ibouvillers (France),

Fondatel Lecomte, established in Andenne (Belgium),

Fonderies Dechaumont, established in Muret (France),

Fundiciones de Ódena SA, established in Ódena (Spain),

Heinrich Meier Eisengießerei GmbH & Co. KG, established in Rahden (Germany),

Saint-Gobain Construction Products UK Ltd, established in East Leake (United Kingdom),

Saint-Gobain PAM Canalisation, formerly Saint-Gobain PAM, established in Pont-à-Mousson (France),

Ulefos Oy, established in Vantaa (Finland),

represented initially by M. Hommé and B. O’Connor, avocats, and subsequently by M. Hommé, B. O’Connor, avocats, and U. O’Dwyer, Solicitor,

interveners at first instance,

THE COURT (Second Chamber),

composed of A. Prechal (Rapporteur), President of the Chamber, M.L. Arastey Sahún, F. Biltgen, N. Wahl and J. Passer, Judges,

Advocate General: L. Medina,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 5 October 2022,

after hearing the Opinion of the Advocate General at the sitting on 16 February 2023,

gives the following

By their appeal, the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’), as well as Cangzhou Qinghong Foundry Co. Ltd, Botou City Qinghong Foundry Co. Ltd, Lingshou County Boyuan Foundry Co. Ltd, Handan Qunshan Foundry Co. Ltd, Heping Cast Co. Ltd Yi County, Hong Guang Handan Cast Foundry Co. Ltd, Shanxi Yuansheng Casting and Forging Industrial Co. Ltd, Botou City Wangwu Town Tianlong Casting Factory and Tangxian Hongyue Machinery Accessory Foundry Co. Ltd (‘the nine other appellants’) seek to have set aside the judgment of the General Court of the European Union of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission (T‑254/18, ‘the judgment under appeal’, EU:T:2021:278), by which it dismissed the appeal by the appellants seeking the annulment of Commission Implementing Regulation (EU) 2018/140 of 29 January 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cast iron articles originating in the People’s Republic of China and terminating the investigation on imports of certain cast iron articles originating in India (OJ 2018 L 25, p. 6; ‘the regulation at issue’), in so far as that implementing regulation concerned them.

I.Legal context

A.WTO law

By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organization (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; ‘the Anti-Dumping Agreement’).

B.European Union law

5.5

Recital 12 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; ‘the basic regulation’) provides: ‘It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. It is also desirable to set out clearly the rules and procedures to be followed during the investigation, in particular the rules whereby interested parties are to make themselves known, present their views and submit information within specified time limits, if such views and information are to be taken into account. It is also appropriate to set out the conditions under which an interested party may have access to, and comment on, information presented by other interested parties. There should also be cooperation between the Member States and the [European] Commission in the collection of information.’

Article 1(4) of the basic regulation provides: ‘For the purposes of this Regulation, “like product” means a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.’

Article 3 of that regulation, entitled ‘Determination of injury’, states: ‘1. Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the [European] 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: the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and the consequent impact of those imports on the Union industry.’

…

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, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation; the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

…’

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.

9. Article 6 of the basic regulation, entitled ‘The investigation’, provides:

1.Following the initiation of proceedings, the Commission, acting in cooperation with the Member States, shall commence an investigation at Union level. Such an investigation shall cover both dumping and injury, and they shall be investigated simultaneously.

…

3.The Commission may request Member States to supply information, and Member States shall take whatever steps are necessary in order to give effect to such requests.

They shall send to the Commission the information requested together with the results of all inspections, checks or investigations carried out.

Where that information is of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided that it is not confidential, in which case a non-confidential summary shall be forwarded.

4.The Commission may request Member States to carry out all necessary checks and inspections, particularly amongst importers, traders and Union producers, and to carry out investigations in third countries, provided that the firms concerned give their consent and that the government of the country in question has been officially notified and raises no objection.

Member States shall take whatever steps are necessary in order to give effect to such requests from the Commission.

Officials of the Commission shall be authorised, if the Commission or a Member State so requests, to assist the officials of Member States in carrying out their duties.

5.The interested parties which have made themselves known in accordance with Article 5(10) shall be heard if they have, within the period prescribed in the notice published in the Official Journal of the European Union, made a written request for a hearing showing that they are an interested party likely to be affected by the result of the proceedings and that there are particular reasons why they should be heard.

…

7.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.For proceedings initiated pursuant to Article 5(9), an investigation shall, whenever possible, be concluded within one year. In any event, such investigations shall in all cases be concluded within 15 months of initiation, in accordance with the findings made pursuant to Article 8 for undertakings or the findings made pursuant to Article 9 for definitive action.

1.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 which are statistically valid on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.

2.The final selection of parties, types of products or transactions made under these sampling provisions shall rest with the Commission, though preference shall be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided that such parties make themselves known and make sufficient information available, within three weeks of initiation of the investigation, to enable a representative sample to be chosen.

…

11. Article 20 of that regulation, entitled ‘Disclosure’, states:

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.

3.Requests for final disclosure, as defined in paragraph 2, shall be addressed to the Commission in writing and be received, in cases where a provisional duty has been imposed, no later than one month after publication of the imposition of that duty. Where a provisional duty has not been imposed, parties shall be provided with an opportunity to request final disclosure within time limits set by the Commission.

…

12. Article 21(2) of the basic regulation is worded as follows:

‘In order to provide a sound basis on which the authorities can take account of all views and information in the decision as to whether or not the imposition of measures is in the Union’s interest, the complainants, importers and their representative associations, representative users and representative consumer organisations may, within the time limits specified in the notice of initiation of the anti-dumping investigation, make themselves known and provide information to the Commission. Such information, or appropriate summaries thereof, shall be made available to the other parties specified in this Article, and they shall be entitled to respond to such information.’

II. Background to the dispute

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

14.On 31 October 2016, a complaint was lodged with the Commission by seven EU producers of cast iron articles, seeking to have the Commission initiate an anti-dumping investigation concerning imports of certain cast iron articles originating in China and India. That complaint was supported by two other EU producers of cast iron articles (the nine producers together being referred to as ‘the complainants’).

15.On 10 December 2016, the Commission published a Notice of initiation of an anti-dumping proceeding concerning imports of certain cast iron articles originating in the People’s Republic of China and in India (OJ 2016 C 461, p. 22). The product subject to that proceeding is manhole covers. The product was defined in paragraph 2 of that notice as certain articles of lamellar graphite cast iron, also known as ‘grey iron’, or spheroidal graphite cast iron, also known as ‘ductile cast iron’, and parts thereof, used to cover ground or sub-surfaces systems, and/or openings to ground or sub-surface systems, and also to give access to ground or sub-surface systems and/or provide view to ground or sub-surface systems (‘the product concerned’).

16.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 30 September 2016 (‘the period under consideration’).

17.The CCCME is an association under Chinese law whose members include Chinese exporting producers of the product concerned. It participated in the anti-dumping proceeding concerning imports of the product concerned. The nine other appellants are exporting producers of the product concerned, two of which were selected by the Commission as part of the sample of Chinese exporting producers used for the purposes of the investigation.

18.On 16 August 2017, the Commission adopted Implementing Regulation (EU) 2017/1480 imposing a provisional anti-dumping duty on imports of certain cast iron articles originating in the People’s Republic of China (OJ 2017 L 211, p. 14) (‘the provisional regulation’).

19.On 29 January 2018, the Commission adopted the regulation at issue which imposed a definitive anti-dumping duty on imports of certain cast iron articles originating in China.

III. The procedure before the General Court and the judgment under appeal

20.By application lodged at the Registry of the General Court on 23 April 2018, the appellants sought annulment of the regulation at issue.

21.By order of 24 October 2018, the President of the First Chamber of the General Court granted leave to intervene in support of the form of order sought by the Commission to EJ Picardie, Fondatel Lecomte, Fonderies Dechaumont, Fundiciones de Ódena SA, Heinrich Meier Eisengießerei GmbH & Co. KG, Saint-Gobain Construction Products UK Ltd, Saint-Gobain PAM Canalisation, formerly Saint-Gobain PAM, and Ulefos Oy (‘the interveners’).

22.In support of their action before the General Court, the appellants put forward six pleas in law. The Commission disputed both the admissibility and the substance of that action.

23.As regards the admissibility of that action, only the General Court’s findings concerning, first, the CCCME’s standing to bring legal proceedings in its own name and on behalf of its members, and, second, the authorities to act provided by the nine other appellants to their lawyers to represent them in legal proceedings are relevant to the present appeal.

24.As regards the CCCME’s standing to bring legal proceedings in its own name in order to safeguard its procedural rights, the Commission submitted that it did not have such standing because procedural rights were granted to it in error during the administrative proceedings. The General Court rejected that plea of inadmissibility, considering, in essence, that throughout the administrative proceeding, the CCCME had been regarded as an interested party to whom procedural rights had to be granted and that an error in that respect, even if it were established, could not affect what was recognised and granted during the administrative proceedings.

25.As regards the CCCME’s standing to bring legal proceedings on behalf of its members, the General Court rejected the Commission’s objection that the CCCME could not represent its members in a legal action because it was not a representative association, for the purposes of the legal tradition common to the Member States. According to the General Court, such a requirement is not necessary for an association to be able to act on behalf of its members before the EU Courts.

26.As regards the authorities to act provided by the nine other appellants to their lawyers, the Commission alleged that they were not valid on the ground that the position of the signatories was not identified clearly and that the power of those signatories to sign those authorities had not been established. The General Court did not accept that objection, considering that its Rules of Procedure did not require proof that the authority granted to the lawyer was conferred by someone authorised for that purpose.

27.As regards the substance of the appellants’ action, only the General Court’s assessments concerning (i) the first and fifth parts of the first plea in law, (ii) the second and third parts of the second plea in law and (iii) the second and third parts of the third plea in law are relevant for the purposes of the present appeal.

28.In its examination of the first part of the first plea in law, the General Court rejected the appellants’ complaints regarding the adjustments made by the Commission to data of the Statistical Office of the European Union (Eurostat), classified according to the product control numbers (PCN), in order to calculate the volume of dumped imports, in accordance with Article 3 of the basic regulation.

29.In its assessment of the fifth part of the first plea in law, the General Court rejected the appellants’ complaint that in order to calculate the injury suffered by Saint-Gobain PAM, the Commission used prices charged for resales within the group of companies to which that producer belongs without assessing whether those were arm’s length purchase prices.

30.By the second part of their second plea in law, the appellants alleged that the Commission had erred in refusing to carry out an assessment by segment in order to establish a causal link between the dumped imports and the injury observed. In response to that allegation, the General Court considered, in essence, that an assessment by segment was not required where the products are sufficiently interchangeable and that neither the fact that the products belong to different ranges nor the fact that consumers had expressed a priority or preference for certain products was sufficient to establish that they are not interchangeable and therefore that such an assessment may be undertaken.

31.By the third part of their second plea in law, the appellants complained, in particular, that the Commission failed sufficiently to assess the significance of undercutting in relation to the fact that for 37.4% of total sales made in the European Union by the sampled EU producers, no price undercutting had been observed. The General Court rejected that part, considering that, since the product concerned covers a variety of product types which continue to be interchangeable, the existence of an undercutting margin in a range of 31.6% to 39.2%, covering 62.6% of the sales of the sampled EU producers, appeared sufficient to conclude that there was significant price undercutting within the meaning of Article 3(3) of the basic regulation.

As regards the third plea in law, alleging an infringement of the appellants’ procedural rights on the ground that information essential for the defence of their interests was not disclosed to them, the General Court held that plea to be admissible in so far as it was raised by the CCCME in its own name. However, the General Court rejected that plea as being inadmissible in so far as it was raised by the members of the CCCME and the nine other appellants, on the ground that those members and those appellants had not participated in the investigation or made requests seeking that the information at issue be disclosed to them. The General Court also rejected the appellants’ argument that, during that investigation, the CCCME had exercised the procedural rights of those members and of those appellants in their name on the ground that the CCCME had acted as an entity representing the Chinese industry as a whole and not as an entity representing some of its members individually.

As regards the substance of that third plea in law, the CCCME submitted, by the second and third parts of that plea, that the Commission had infringed its procedural rights by failing to provide to it, first, certain data, in aggregated form, concerning in particular the calculation of the normal value, the effects of Chinese imports on prices and the injury elimination level, as well as, second, estimates relating to macroeconomic indicators, information on the comparison of the imported products with products of Indian producers and of EU producers as well as calculations concerning the volume of imports from the third countries concerned. The General Court rejected those second and third parts, considering, in essence, that the Commission had provided the CCCME with the material enabling it effectively to defend its interests.

By the judgment under appeal, the General Court dismissed the action brought by the appellants.

The appellants claim that the Court should:

–set aside the judgment under appeal;

–annul the regulation at issue in so far as it concerns them;

–order the Commission to bear the costs of the procedure before both the General Court and the Court of Justice, including the appellants’ costs; and

–order the interveners to bear their own costs.

The Commission contends that the Court should:

–set aside the judgment under appeal in so far as it declares the action at first instance to be admissible;

–declare the action at first instance to be inadmissible;

–dismiss the appeal; and

–order the appellants to pay the costs at first instance and on appeal.

The interveners contend that the Court should:

–dismiss the appeal in its entirety;

–declare that the CCCME cannot be regarded as a representative association for the purposes of the basic regulation; and

–order the appellants to pay the costs.

In support of their appeal, the appellants put forward five grounds of appeal. The first to fourth grounds of appeal relate to errors which the appellants allege the General Court made in failing to state that the Commission had infringed Article 3(2), (3) and (5) to (7) of the basic regulation when it adopted the regulation at issue. By their fifth ground of appeal, the appellants maintain that the General Court erred in declaring the third plea in law of their action before the General Court to be inadmissible in part, alleging an infringement of their procedural rights, and that the General Court made errors of law when it assessed those rights pursuant to Article 6(7), Article 19(1) and (2) and Article 20(2) and (4) of the basic regulation.

The Commission and the interveners are of the view that the appellants’ action at first instance ought to have been declared inadmissible and, in any event, that their action was unfounded.

The Commission submits that the action at first instance was inadmissible on the ground that the CCCME did not have standing to bring legal proceedings in its own name, that it did not have the power to represent its members in legal proceedings and that the nine other appellants had not provided their lawyers with a proper authority to act.

The appellants dispute those arguments on the ground that, by requesting the Court of Justice (i) to set aside the judgment under appeal in so far as it declares that the action at first instance is admissible and (ii) to declare that action to be inadmissible, the Commission has lodged a cross-appeal without complying with the requirements set out in Article 176(2) of the Rules of Procedure of the Court of Justice.

In that regard, it should be recalled that questions concerning the admissibility of an action for annulment constitute a question of public policy which the EU Courts may consider at any time, even on their own initiative (see, to that effect, judgment of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 32, and of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 53 and the case-law cited).

It follows that, in examining an action, the Court may evaluate the admissibility of an action at first instance, irrespective of the fact that such admissibility has been called into question by a party having submitted a reply without having submitted a cross-appeal pursuant to Article 176(2) of the Rules of Procedure of the Court of Justice (see, to that effect, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraphs 56 to 59 and the case-law cited).

Consequently, the appellants’ challenge set out in paragraph 41 of the present judgment must be dismissed.

(a) Arguments of the parties

The Commission submits that, in paragraphs 52 to 75 of the judgment under appeal, the General Court erred in law in considering that the recognition of the CCCME as a representative association during the administrative proceeding was sufficient to establish that the condition that the applicant must be directly and individually concerned by the measure which is the subject of its appeal, laid down in the fourth paragraph of Article 263 TFEU, was satisfied in respect of the CCCME. Whether an entity has standing to bring proceedings before the General Court does not depend on that entity being acknowledged to have standing during the administrative proceedings, but rather depends on the relevant applicable rules. Accordingly, it is for the General Court to assess itself whether the CCCME satisfied the conditions required in order to be regarded as a representative association in accordance with the basic regulation and, therefore, had standing to bring legal proceedings in its own name.

The interveners support the Commission’s arguments and allege that the CCCME is not a representative association of Chinese exporting producers of the product concerned, but an entity by which the Chinese Government controls exporting producers. The CCCME acts under the supervision, management and business guidance of the Ministry of Civil Affairs and the Ministry of Trade of the People’s Republic of China.

The appellants’ view is that the CCCME is a representative association as provided for in the basic regulation and that it is therefore an interested party referred to in that regulation. In their view, it was regarded as such by the Commission both during the course of the investigation which led to the adoption of the regulation at issue and in other earlier anti-dumping investigations. For the reasons put forward by the General Court in the judgment under appeal, the CCCME is directly and individually concerned by the regulation at issue.

(b) Findings of the Court

It should be recalled, first of all, that the admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission, C‑439/20 P and C‑441/20 P, EU:C:2023:211, paragraph 53 and the case-law cited).

By its plea of inadmissibility, the Commission takes the view that, by examining the first of those two situations, the General Court erred in ruling that the CCCME was entitled to bring legal proceedings in its own name in order to safeguard its procedural rights. In paragraphs 52 to 75 of the judgment under appeal, the General Court founded its assessment of the CCCME’s standing to bring proceedings in its own name on the fact that, during the anti-dumping proceeding which led to the regulation at issue, the Commission had granted it those rights. It had, however, not ascertained whether the grant of those rights was lawful. Indeed, the grant of those rights to the CCCME was unlawful, since the CCCME is not a representative association in accordance with the basic regulation, but rather an emanation of the Chinese State.

In accordance with settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if that decision affects them by reason of certain attributes which are peculiar to them or 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 by such a decision (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 156 and the case-law cited).

The persons capable of being distinguished individually by an EU measure in the same way as the addressees of a decision include those persons who participated in the process by which that measure is adopted. The fact that a person participates in the process by which an EU measure is adopted does not distinguish that person individually with regard to the measure in question unless provision has been made under the EU rules for procedural guarantees in favour of that person (see, to that effect, judgment of 4 October 1983, Fediol v Commission, 191/82, EU:C:1983:259, paragraph 31).

and order of 17 February 2009, Galileo Lebensmittel v Commission, C‑483/07 P, EU:C:2009:95, paragraph 53). The precise scope of an individual’s right of action against an EU measure depends on his or her legal position as defined by EU law with a view to protecting the legitimate interests thus afforded him or her (judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 107 and the case-law cited).

It follows that procedural rights must be granted lawfully to a person in order for that person to be able to be regarded as individually concerned by those rights and to be entitled to bring an action for annulment against a measure adopted in breach of those rights.

In the present case, in its defence before the General Court, the Commission disputed the admissibility of the action brought by the CCCME in order to assert an infringement of its procedural rights, on the ground that it was not an interested party to which the basic regulation granted such rights. Consequently, in order to assess whether that action was admissible, the General Court was required to assess whether that regulation would grant procedural rights to the CCCME.

In paragraphs 53 to 60 of the judgment under appeal, the General Court, however, found that the CCCME was individually concerned by the regulation at issue on the ground that, during the procedure which led to the adoption of that regulation, the Commission had regarded it as an interested party representing, in particular, the Chinese castings industry, since it had granted it procedural rights including the right to access the investigation file, the right to disclosure of the provisional and final conclusions and the right to submit comments on those conclusions, as well as the right to participate in two hearings organised as part of that proceeding.

Therefore, it must be observed that the General Court failed to examine the lawfulness of the grant of those procedural rights to the CCCME and that, consequently, it erred in law when it examined whether the condition whereby the applicant must be individually concerned by the measure which is the subject of its appeal, laid down in the fourth paragraph of Article 263 TFEU, was satisfied in relation to the CCCME.

That observation is not called into question by the General Court’s finding in paragraph 64 of the judgment under appeal that even if the Commission’s error in granting those rights to the CCCME were established, it could not erase what was recognised and granted during the administrative procedure, particularly as, after that procedure had closed, the Commission retained the possibility of withdrawing the regulation at issue and resuming the procedure, correcting the error at the stage at which it was committed. Decisions taken by the Commission during an administrative procedure and the Commission’s ability to correct them cannot result in a restriction of the EU Courts’ review of the admissibility of the actions which have been brought before them.

The same error of law vitiates the General Court’s assessment in paragraphs 71 to 75 of the judgment under appeal of the condition that the applicant must be directly concerned by the measure which is the subject of its action, laid down in the fourth paragraph of Article 263 TFEU, since that assessment is also founded on the Commission having granted procedural rights to the CCCME during the administrative procedure.

However, those errors may result in the CCCME’s action in its own name being inadmissible only where it is established that it could not lawfully be granted the procedural rights in question. Therefore, an assessment must be made of whether, under the basic regulation, those rights had to be granted to the CCCME.

In that regard, the CCCME takes the view that the basic regulation grants such rights to it because it is a representative association of importers or exporters of the product concerned.

Although Article 5(11), Article 6(7), Article 20(1) and (2) and Article 21(2) of the basic regulation grant certain procedural rights to representative associations of importers or exporters of the dumped product, that regulation does not define the concept of a representative association of importers or exporters found in those provisions.

In accordance with settled case-law, it is necessary, therefore, to interpret that concept taking account not only of the wording of those provisions in which it is found, but also the context in which those provisions occur and the objectives pursued by the rules of which they form part (see, to that effect, judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected), C‑872/19 P, EU:C:2021:507, paragraph 42). In addition, given the primacy of international agreements concluded by the European Union over secondary EU legislation, that concept must be interpreted, as far as possible, in a manner consistent with those agreements, including the Anti-Dumping Agreement (see, to that effect, judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 101 and the case-law cited).

Under a textual interpretation, the concept of a ‘representative association of importers or exporters’ designates a group of persons who represent importers or exporters in general.

It follows, in the first place, that that concept does not designate persons or bodies which represent interests other than those of importers or exporters, such as, in particular, the interests of States. That interpretation is borne out by the context in which that concept occurs. Indeed, Article 5(11), Article 6(7) and Article 20(1) of the basic regulation designate representative associations of importers or exporters, of the one part, and the ‘authorities’ or the ‘representatives’ of the exporting country, of the other part, as distinct interested parties to an anti-dumping proceeding.

That interpretation is also borne out by the objective of the basic regulation which is to enable the Commission to impose adequate anti-dumping duties in compliance with the principle of sound administration. That objective requires the Commission to be able to ascertain the views of various interested parties participating in an anti-dumping proceeding. Recital 12 of that regulation accordingly states that those parties should have ample opportunity to present all relevant evidence and to defend their interests. The evidence which can be presented by representative associations of importers or exporters and by representatives of the exporting country as well as their respective interests is not necessarily the same. On the one hand, those associations defend the commercial and industrial interests of importers or exporters, whereas on the other hand, those representatives seek to promote the political and diplomatic interests of the exporting country.

Furthermore, the interpretation in question accords with Article 6.11 of the Anti-Dumping Agreement, since that article distinguishes, in relation to the parties referred to by that agreement, governments of exporting States which are parties to that agreement from trade or business associations a majority of the members of which are exporters or importers of the product which is the subject of the anti-dumping investigation.

It follows from the choice by the EU legislator to make a distinction between the representative associations of importers or exporters and the authorities as well as the representatives of the exporting country that, in order to be able to be regarded as a representative association in accordance with the provisions referred to in paragraph 63 of the present judgment, the body which presents itself as such must not be subject to interference by the exporting State, but must, on the contrary, enjoy the necessary independence as regards that State so that it may actually act in a capacity representing general and collective interests of importers or exporters and not as a front for that State.

That independence of representative associations referred to by the basic regulation reflects the independence afforded to associations under the freedom of association defined in Article 12 of the Charter of Fundamental Rights of the European Union, in that that charter affords to associations the right to pursue their activities and to operate without unjustified interference by the State (see, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraphs 110 to 113). However, such convergence is confined to the absence of interference by the State concerned challenging the representation, by an association, of the general and collective interests of importers or exporters, since that regulation seeks to transpose the rules of the Anti-Dumping Agreement, the objective of which is to promote global trade and not freedom of association.

In the second place, it follows from the textual interpretation and from the context of the concept of ‘representative association of importers or exporters’ found in paragraphs 62 and 63 of the present judgment that the objects of such an association must include representing importers or exporters of the product which is the subject of the anti-dumping investigation. Such representation requires that such an association’s members include a large number of importers or exporters of that product. In addition, it requires the imports or exports of those products by those members to be significant, such that the association concerned may report on the characteristics of the business of importers or of exporters of that product in general.

That interpretation is borne out by the objective of the basic regulation, set out in paragraph 64 of the present judgment, which requires the participation of representative associations of importers or exporters, as interested parties in the anti-dumping proceeding. The interests of those associations can be legitimate only if they are actually representative of importers or exporters of the dumped product.

In the light of all of the foregoing considerations, the concept of a ‘representative association of importers or exporters’ in accordance with that regulation must be understood as designating an association whose purpose includes representing the collective and general interests of importers or exporters of a dumped product which requires that that association, first, enjoys independence as regards the authorities of that State in order to be able to ensure such representation and, second, that its membership includes a large number of importers or exporters whose imports or exports of that product are significant.

Since it is for the applicant to provide proof of its standing to bring legal proceedings, it was incumbent, in the present case, on the CCCME to demonstrate that it was such a representative association of importers or exporters of the product concerned.

In that regard, the CCCME submitted, in its application before the General Court, that its members included 19 exporting producers of the product concerned on which the regulation at issue imposed anti-dumping duties. In addition, it is apparent from the memorandum and articles of association of the CCCME that it is a non-profit social organisation voluntarily formed by enterprises and institutions registered in China which are active in the import and export trade, investment and cooperation in the sector of machinery and electronic products (Article 2) and that its objective is in particular to safeguard the legitimate rights and interests of its members as well as to promote the healthy development of the mechanical and electronic industries (Article 3). Therefore, the CCCME includes exporters of the dumped product and is entitled to safeguard their interests.

Nevertheless, as the Commission states, the memorandum and articles of association of the CCCME indicate that the association is under the supervision, management and business guidance of two ministries of the People’s Republic of China (Article 4) and that it conducts its relevant activities in accordance with appointment and authorisations of the Chinese Government (Article 6(2)). Those factors attest to the fact that the CCCME does not have sufficient independence as regards the Chinese State courts to be able to be regarded as a ‘representative association’ of exporters of the product concerned.

In addition, the CCCME has adduced no proof that it represents importers or exporters of the product concerned. Accordingly, at the time of the procedure before the General Court, the Commission stated that the CCCME was active in the overall sectors of machinery and electronics and that it had more than 10000 members. Also, when confronted during that procedure with the Commission’s objection that it did not represent a significant number of exporting producers of the product concerned, the CCCME simply referred, first, to recital 25 of the regulation at issue, in which the Commission took the view that it represented in particular the Chinese castings industry, and second, to proof of the membership of 19 exporting producers of the product concerned, found in Annex A.4 toits application before the General Court, stating that that number was significant. Furthermore, in their reply to questions from the Court, the appellants indicated that they had provided the Commission with a list of 58 Chinese exporting producers of cast iron which are members of the CCCME. However, that list was not adduced before the EU Courts and the appellants have not specified the amount of products concerned which were exported by those members. It follows that the CCCME has demonstrated neither that its members included a large number of importers or exporters of the product concerned, nor that exports of that product by its members were significant.

Consequently, the CCCME did not have standing to bring proceedings pursuant to the fourth paragraph of Article 263 TFEU, with the result that the action which it lodged in its own name must be rejected as being inadmissible and that the General Court erred in examining the pleas in law alleging an infringement of the procedural rights of the CCCME which were put forward in support of that action.

The Commission alleges that, in paragraphs 98 to 103 of the judgment under appeal, the General Court erred in law when it considered that it is not necessary for an association to be organised democratically in order to be able to bring legal proceedings on behalf of its members. In the view of the Commission, a professional association cannot be an emanation of a State which is organised based on a communist one party system, since, in such a case, that association would be required to defend the interests of its members, as democratically defined by those members, vis-à-vis the State of which it is an emanation. Such a situation where a trade association would at the same time be part of a State and defend the collective interests of its members against that State is contrary to the fundamental principles of representative democracy which are common to the tradition of the Member States. Furthermore, to take into account specific features of the country 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, is to uphold and promote its values.

The CCCME disputes the Commission’s line of argument.

Findings of the Court

(b) Findings of the Court

The Commission maintains that, in paragraphs 98 to 103 of the judgment under appeal, the General Court erred in rejecting the plea of inadmissibility alleging that the action was inadmissible in so far as it had been lodged by the CCCME on behalf of its members. According to the Commission, as the CCCME is an emanation of the People’s Republic of China and is not organised democratically, it was not entitled to bring an action for annulment on behalf of some of its members.

As a preliminary point, it should be noted that the question whether an association may represent its members in an action for annulment before the EU Courts is distinct from the question whether it is a ‘representative association of importers or exporters’ in accordance with the basic regulation.

As regards the first question, it is apparent from settled case-law that an association which is responsible for protecting the collective interests of certain undertakings 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 (see, to that effect, judgment of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 87 and the case-law cited).

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 (judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 39 and the case-law cited).

As the General Court correctly stated in paragraph 84 of the judgment under appeal, an association’s ability to bring legal proceedings on behalf of its members is intended to enable a more efficient administration of justice by obviating the institution of numerous separate actions against the same acts by those members.

It follows from the foregoing that, in order for an association to be able legitimately to bring an action before the EU Courts on behalf of its members, it is important, first, that the natural or legal persons on whose behalf it is acting are members of that association, second, that it has the power to bring proceedings in their name, third, that that action is brought in their name, fourth, that at least one of the members on whose behalf it is acting could itself have brought an admissible action, and, fifth, that the members on whose behalf it is acting have not brought an action in parallel before the EU Courts.

Contrary to the Commission’s assertions, there is no requirement, other than the five conditions mentioned in the previous paragraph, that an association representing members in legal proceedings be organised democratically. Indeed, when examining the concept of a ‘legal person’, referred to in the fourth paragraph of Article 263 TFEU, the Court considered that that concept covered both private legal persons, public entities and third States, their being organised democratically not having been referred to or taken into account (see, to that effect, judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected), C‑872/19 P, EU:C:2021:507, paragraphs 41 to 52). It follows that for those persons, entities and States, standing to bring proceedings pursuant to that provision is not dependent on their being organised democratically.

In a dispute, the aim of which is to set aside a regulation imposing a definitive anti-dumping duty, the Court of Justice has accordingly held, as the General Court correctly points out in paragraph 99 of the judgment under appeal, that the absence of a right to vote of certain members of an association or any other means enabling them to enforce their interests within that association is not sufficient to prove that that association did not have the purpose of representing such members. Such an absence, therefore, is not an impediment to that association bringing an action for annulment on behalf of its members (see, to that effect, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraphs 120 to 125).

Accordingly, the General Court did not err in law when it held, in paragraphs 98 to 103 of the judgment under appeal, that an association’s right to bring legal proceedings on behalf of its members is not subject to a condition relating to the ‘representativeness of that association for the purposes of the legal tradition common to the Member States’ and therefore, in essence, relating to it being organised democratically.

Consequently, the plea of inadmissibility raised by the Commission in relation the action brought before the General Court by the CCCME on behalf of its members must be rejected.

Whether the authorities to act provided by the nine other appellants to their lawyers are lawful

Arguments of the parties

(a) Arguments of the parties

The Commission maintains that, in paragraphs 133 to 137 of the judgment under appeal, the General Court erred in declaring the action of the nine other applicants admissible even though it had disputed whether the authorities to act provided by the applicants to their lawyers were lawful. In the Commission’s view, the General Court could not disregard that challenge on the ground 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. The requirement that the General Court verify that authority to act, if challenged, flows from Article 21 of the Statute of the Court of Justice of the European Union.

The appellants dispute the Commission’s arguments.

Findings of the Court

(b) Findings of the Court

The Commission alleges that the actions of the nine other appellants were inadmissible since the powers of attorney naming their lawyers were unlawful and since the General Court could not reject the plea of inadmissibility which it had raised in that regard by relying on the fact that its rules of procedure did not require proof that those powers of attorney had been prepared by a representative authorised for that purpose.

In that regard, it should be recalled that, under Article 19 of the Statute of the Court of Justice of the European Union, which applies to the General Court pursuant to the first paragraph of Article 53 of that statute, in order to be able to bring proceedings before the EU Courts, legal persons, such as the nine other appellants, must be represented by a lawyer authorised to practice before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p.3).

As regards the authority to act conferred on a lawyer by such persons, Article 51(3) of the Rules of Procedure of the General Court provides that where the party represented by the lawyer is a legal person governed by private law, the lawyer must lodge at the registry an authority to act given by that person. Unlike the version of those rules which applied before 1 July 2015, that provision does not require such a person to provide proof that the authority granted to its lawyer was conferred on him or her lawfully by someone authorised for the purpose.

The fact that Article 51(3) does not lay down that obligation does not, however, mean that the General Court need not verify whether the authority concerned is lawful where such authority is challenged. The fact that, at the stage of lodging its action, an applicant does not have to provide that proof does not affect the obligation on that party lawfully to have provided its lawyer with authority to act in order to be able to bring proceedings. The fact that the evidence requirements at the time of lodging an action have been relaxed has no bearing on the substantive condition that the parties must be duly represented by their lawyers. Accordingly, where the lawfulness of an authority granted by a party to its lawyer is challenged, that party must demonstrate that that authority is lawful (see, to that effect, judgment of 16 February 1965, Barge v High Authority, 14/64, EU:C:1965:13, p. 10).

Consequently, as the Advocate General stated, in essence, in paragraphs 120 and 121 of her Opinion, the General Court erred in law in considering, in paragraph 136 of the judgment under appeal, that, as its rules of procedure did not require proof that the authority granted to a lawyer had been established by someone authorised for that purpose, the Commission’s challenge to the lawfulness of the authority to act granted to the lawyers of the nine other appellants had to be rejected.

Therefore, the admissibility of the actions of the nine other appellants must be assessed.

In that regard, it must be noted that, in support of its plea of inadmissibility, the Commission relies, first, on the fact that certain signatories of the authorities to act which are at issue have not specified their position and have not attached documents attesting to their power to sign such documents, and second, on the fact that certain signatories of those authorities to act, who have specified their position as general manager, managing director, financial controller or director, have provided no justification as to their ability to sign such authorities to act under Chinese law.

While the EU Courts must require a demonstration that the authority to act granted to a party’s lawyer is lawful where that mandate is challenged by an opposing party, such a requirement is only relevant in so far as that challenge is based on sufficiently concrete and precise indicia.

In the present case, the Commission submits no such indicia. The fact that certain signatories of the mandates at issue either do not specify their position or specify their position without justifying that they are entitled under Chinese law to sign such mandates does not constitute such indicia.

Consequently, the plea of inadmissibility raised by the Commission in relation to the action brought by the nine other appellants must be rejected.

Conclusions on the admissibility of the action before the General Court

In the light of the foregoing, it must be concluded that the action brought before the General Court is admissible in so far as it was brought by the CCCME on behalf of its members and by the nine other appellants. However, since the CCCME did not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU, that action is inadmissible in so far as it was brought by the CCCME in its own name. The General Court therefore erred in examining that action in so far as the CCCME was thereby alleging an infringement of procedural rights, such that the grounds of appeal in the present appeal concerning that examination are inadmissible.

Substance

The first ground of appeal

Arguments of the parties

(a) Arguments of the parties

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ECLI:EU:C:2023:685

62021CJ0478

21 September 2023 (*1)

Table of contents

I.Legal context

A.WTO law

B.European Union law

II. Background to the dispute

III. The procedure before the General Court and the judgment under appeal

(a) Arguments of the parties

(b) Findings of the Court

(a) Arguments of the parties

(b) Findings of the Court

(a) Arguments of the parties

(b) Findings of the Court

(a) Arguments of the parties

(b) Findings of the Court

(1) Preliminary observations

(2) The first part of the first ground of appeal

(3) The second part of the first ground of appeal

(a) Arguments of the parties

(b) Findings of the Court

(a) The first part of the third ground of appeal

(1) Arguments of the parties

(2) Findings of the Court

(b) The second part of the third ground of appeal

(1) Arguments of the parties

(2) Findings of the Court

(a) Arguments of the parties

(b) Findings of the Court

5. The fifth ground of appeal

(a) Preliminary observations

(b) The first part of the fifth ground of appeal

(1) Arguments of the parties

(2) Findings of the Court

Costs

I.Legal context

A.WTO law

B.European Union law

II. Background to the dispute

III. The procedure before the General Court and the judgment under appeal

(a) Arguments of the parties

(b) Findings of the Court

Findings of the Court

Whether the authorities to act provided by the nine other appellants to their lawyers are lawful

Arguments of the parties

Findings of the Court

Conclusions on the admissibility of the action before the General Court

Substance

The first ground of appeal

Arguments of the parties

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