Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

16 December 2015 (*)

(Dumping — Imports of certain seamless pipes and tubes of iron or steel originating in Russia — Definitive anti-dumping duty — Product concerned)

In Case T‑108/13,

Volžskij trubnyi zavod OAO (VTZ OAO), established in Volzhsky (Russia),

Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), established in Taganrog (Russia),

Sinarskij trubnyj zavod OAO (SinTZ OAO), established in Kamensk-Uralsky (Russia),

Severskij trubnyj zavod OAO (STZ OAO), established in Polevskoy (Russia),

represented by J.‑F. Bellis, F. Di Gianni and G. Coppo, lawyers,

applicants,

v

Council of the European Union, represented by S. Boelaert and B. Driessen, acting as Agents, and initially by G. Berrisch, lawyer, and B. Byrne, Solicitor, and subsequently by B. Byrne and finally by E. McGovern, Barrister,

defendant,

supported by

European Commission, represented by J.‑F. Brakeland, B.-R. Killmann and A. Stobiecka-Kuik, acting as Agents,

ArcelorMittal Tubular Products Ostrava a.s., established in Ostrava-Kunčice (Czech Republic),

Benteler Steel/Tube GmbH, established in Paderborn (Germany),

Dalmine SpA, established in Dalmine (Italy),

Productos Tubulares, SA, established in Valle de Trápaga (Spain),

Rohrwerk Maxhütte GmbH, established in Sulzbach-Rosenberg (Germany),

ArcelorMittal Tubular Products Roman SA, established in Roman (Romania),

Silcotub SA, established in Zalău (Romania),

Tubos Reunidos Industrial, SL, established in Amurrio (Spain),

V & M Deutschland GmbH, established in Düsseldorf (Germany),

V & M France, established in Boulogne-Billancourt (France),

Vallourec Mannesmann Oil & Gas France, established in Aulnoye-Aymeries (France),

and

voestalpine Tubular GmbH & Co. KG, established in Kindberg (Austria), represented by S. Gubel, lawyer, and B. O’Connor, Solicitor,

interveners,

APPLICATION for partial annulment of Council Implementing Regulation (EU) No 1269/2012 of 21 December 2012 amending Implementing Regulation (EU) No 585/2012 imposing a definitive anti-dumping duty on imports of certain seamless steel pipes, of iron or steel, originating, inter alia, in Russia, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2012 L 357, p. 1),

THE GENERAL COURT (Fifth Chamber),

composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 26 March 2015,

gives the following

Judgment

 Background to the dispute and contested regulation

1        Definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or steel (‘SPTs’) originating in Russia, were first imposed by Council Regulation (EC) No 2320/97 of 17 November 1997, imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia (OJ 1997 L 322, p. 1).

2        By Council Regulation (EC) No 1322/2004 of 16 July 2004 amending Regulation No 2320/97 imposing definitive anti-dumping duties on imports of non-alloy SPTs originating in, inter alia, Russia and Romania (OJ 2004 L 246, p. 10), the Council of the European Union decided not to maintain the anti-dumping measures in force against, inter alia, Russia.

3        By Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of SPTs originating in Croatia, Romania, Russia and Ukraine, repealing Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of non-alloy SPTs originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of SPTs originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4), the Council re-imposed a definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel, originating in, inter alia, Russia. Following a partial interim review, the individual anti-dumping duty applicable to the applicants, Volžskij trubnyi zavod OAO (VTZ OAO), Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), Sinarskij trubnyj zavod OAO (SinTZ OAO) and Severskij trubnyj zavod OAO (STZ OAO), which are part of the group whose parent company is Troubnaïa metallouguitcheskaïa kompania (‘the TMK group’), was reduced from 35.8% to 27.2% by Council Regulation (EC) No 812/2008 of 11 August 2008 amending Regulation (EC) No 954/2006 (OJ 2008 L 220, p.1).

4        After receiving a reasoned opinion from a complainant on 29 March 2011, the European Commission, on 28 June 2011, initiated an expiry review of the measures imposed by Regulation No 954/2006, as most recently amended by Regulation No 812/2008, pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343 p. 51, corrigendum OJ 2010 L 7, p. 22; ‘the basic regulation’).

5        By Council Implementing Regulation (EU) No 585/2012 of 26 June 2012 imposing a definitive anti-dumping duty on imports of SPTs originating in Russia and Ukraine, following an expiry review pursuant to Article 11(2) of the basic regulation, and terminating the expiry review proceeding concerning imports of SPTs originating in Croatia (OJ 2012 L 174, p. 5), the Council extended the anti-dumping measures against inter alia Russian SPTs for a further five-year period, that is to say until 4 July 2017. Under Article 1 of that regulation, ‘a definitive anti-dumping duty is hereby imposed on imports of [SPTs] of circular cross-section, of an external diameter not exceeding 406.4 mm with a carbon equivalent value (CEV) not exceeding 0.86 according to the International Institute of Welding (IIW) formula and chemical analysis ..., currently falling within CN codes ex 7304 11 00, ex 7304 19 10, ex 7304 19 30, ex 7304 22 00, ex 7304 23 00, ex 7304 24 00, ex 7304 29 10, ex 7304 29 30, ex 7304 31 80, ex 7304 39 58, ex 7304 39 92, ex 7304 39 93, ex 7304 51 89, ex 7304 59 92 and ex 7304 59 93 ... and originating in Russia and Ukraine’.

6        In the meantime, following a request lodged by the applicants on 29 July 2011, on 14 October 2011, by notice published in the Official Journal of the European Union (OJ 2011 C 303, p. 11), the Commission announced the initiation of a partial interim review in accordance with Article 11(3) of the basic regulation of the anti-dumping measures applicable to imports of SPTs originating in Russia (‘the interim review’). That interim review covered the same products as those mentioned in paragraph 5 above (‘the products concerned’).

7        On 19 March 2012, during a verification visit at VTZ, the Commission team requested information concerning certain sales made during the investigation period to a European customer, via an Italian company related to the TMK group, namely TMK Italia Srl (Lecco) (‘TMKI’). The TMK group explained that, inter alia, the transactions in question had not been reported in the replies to the Commission questionnaire because the products which it sold to the European customer did not fall within the product scope since they possessed the characteristics of ‘blanks’ covered by CN code 7304 59 10, as defined in Commission Regulation (EU) No 1006/2011 of 27 September 2011 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2011 L 282, p. 1). In support of this conclusion, the TMK group provided the Commission with a detailed written submission, to which it attached the technical and commercial documentation relating, in particular, to the precise characteristics of the production process in which that customer used the products purchased from the TMK group, upstream, and to the invoices and mill certificates. A sample customs declaration obtained from that customer was also included. That documentation had been analysed during the abovementioned verification visit by Commission case handlers. It is also apparent from the record of the visit in question that the Commission team had verified certain production reports for products for the same customer.

8        After the conclusion of the verification visit, the Commission required TMKI, by letter dated 30 March 2012, to supplement Annex I to its questionnaire with dumping-related information regarding the sales at issue. On 17 April 2012, TMKI provided the requested information, whilst stressing that the products sold by the TMK group to the European customer should not be considered to be within the product scope.

9        On 26 June 2012, during a verification visit at TMKI, the representatives of the TMK group showed the Commission samples of a cross-section cut of a pipe sold to the European customer and a cross-section cut of the same pipe as transformed by that customer through the flow-forming (cold-rolling) process, with resulting change of cross-section and wall thickness. TMK spontaneously presented in writing on 25 July 2012 and orally during a hearing held at the Commission’s premises on 1 August 2012 further comments on the question whether the products sold by that group to the European customer fell within the scope of the interim review.

10      On 8 October 2012, the applicants received a general disclosure document which also contains the detailed calculations of their dumping margin (‘the disclosure’). In that document it was stated that the products sold by the TMK group to the European customer had been included in the scope of the investigation. In particular, point 2.4.1 of Annex 3 to the disclosure explained that such products cannot be considered to be ‘blanks’ classifiable under CN subheading 7304 59 10 on the following grounds: (i) ‘the product at issue is not “unworked” as it meets certain specific requirements in terms of wall thickness tolerances ... [and that]; these products should therefore be regarded as ‘semi-finished’ (or partially worked) products’; (ii) ‘a technical expert from [the TMK group], Mr A.T., [had] confirmed during the verification visit ... that the pipes at issue were not deburred’; (iii) ‘the product ... is not for use solely in the manufacture of tubes and pipes, as the product [was] transformed by the independent customer into gas cylinders and [would not be] “intended to be transformed into tubes of other shapes and wall thickness with more reduced dimensional tolerances” [since the TMK group itself stressed] the fact that the product exported to the European Union under CN code 7304 59 10 was destined to be finally transformed into “gas cylinders” with different cross-sections and wall thicknesses by its customers after undergoing several processes including a flow-forming process [and] the Directorate-General for Trade [having taken note] that [the European customer] first [carried] out flow-forming operations to obtain a tube of … different wall thicknesses and cross-section before transforming it into gas cylinders’.

11      By email sent on 19 October 2012 by the TMK group’s legal counsel, Mr G., TMK requested that the Commission explain why the simple fact of meeting ‘certain specific requirements in terms of wall thickness tolerances’ would render the tubes sold by that group to the European customer not unworked. The Commission staff replied by letter of 23 October 2012.

12      On 8 November 2012, the TMK group lodged its comments on the disclosure. It stated that (i) the analysis of the notion of ‘unworked’ in relation to the products which it sold to the European customer was based on a criterion which was to be found neither in the wording of CN subheading 7304 59 10 nor in the Explanatory Note relating to CN codes 7304 39 10 and CN 7304 59 10, namely on a ‘specific wall thickness tolerance requirement’ and, in any event, such a requirement only suggested that the ‘blanks’ at issue were due to be further processed; (ii) the standard used for the production of those products dictated that they had to be delivered free from excessive burrs and, according to the Explanatory Note relating to those products, the deburred character was rather a type of finishing that was tolerated, and products which had not been deburred must, a fortiori, be unfinished; (iii) that wording referred to the manufacturing stage following importation and not to the ultimate use of the pipes.

13      On 9 November 2012, during a hearing with the Hearing Officer of the Directorate-General for Trade of the Commission, the TMK group presented orally its observations on the disclosure and provided to the Commission another sample of the pipes manufactured by the European customer.

14      On 14 November 2012, the Commission sent the TMK group a letter containing additional explanations on the classification of the products sold by it to the European customer. It stated that: (i) that customer’s order referred to ‘seamless steel pipes for the production of cylinders’ rather than to ‘blanks’ or ‘hollows’ in CN codes 7304 39 10 or 7304 59 10; (ii) the purchase specification referred to requirements such as ‘annealed coarse’ and ‘smooth at ends’, suggesting that the products were ‘semi-finished’; (iii) some documents prepared by VTZ itself made reference to CN code 7304 59 93 for some of those products; (iv) the new claim, which was submitted at a late stage by the TMK group, that that customer produced ‘precision pipes’ was in contradiction to its previous submission and to what was found during the verification visits, namely that the pipes purchased from that group were solely destined for the production of gas cylinders; a claim which was moreover not substantiated.

15      The TMK group replied on 15 November 2012, claiming, in essence, that: (i) the fact that the European customer’s orders referred to ‘seamless steel pipes for the production of cylinders’ was irrelevant since in its presentation of June 2009 the European customer used the Italian word for ‘blanks’ to define the raw material to be used in its manufacturing operations; (ii) ‘annealing’ is a type of heat treatment aimed at reducing the hardness of the pipes and facilitating their cold-working and thus, those orders confirm that the blanks were due to be further transformed into pipes of other cross-sections and wall thicknesses, since the expression ‘smooth at ends’ simply means ‘deburred’; (iii) the Commission referred to seller-buyer documents which are not relevant for the purpose of the customs classification, which should be based on the objective characteristics of the goods; (iv) that customer was a producer of, first, ‘precision pipes’ (cold-rolled pipes) and, then, gas cylinders, made from precision pipes produced through the flow-forming of the ‘blanks’ purchased.

16      On 30 November 2012, the TMK group sent the Commission a letter with additional comments inter alia on whether the ‘blanks’ sold to the European customer had been annealed.

17      On 21 December 2012, the Council adopted Implementing Regulation (EU) No 1269/2012 amending Implementing Regulation (EU) No 585/2012 imposing a definitive anti-dumping duty on imports of SPTs originating, inter alia, in Russia, following a partial interim review pursuant to Article 11(3) of the basic regulation (OJ 2012 L 357, p.1; the ‘contested regulation’). Under that regulation, the individual rate of the definitive duty applicable to the TMK group was amended from 27.2% to 28.7% with effect from 29 December 2012. According to recital 10 in the preamble to the regulation, the investigation of the level of dumping covered the period from 1 October 2010 to 30 September 2011. According to recital 11 in the preamble to the contested regulation, the products covered are the same as those defined in Implementing Regulation No 585/2012 which imposed the measures currently in force.

18      In recital 23 in the preamble to the contested regulation, the Council notes that some quantities of SPTs exported from Russia had not been reported by the TMK group, since that group considered that they did not fall within the scope of the investigation. The Council states that samples shown to the Commission services during the verification visits could not be regarded as conclusive evidence. In recital 24 in the preamble to the contested regulation, the Council states that those SPTs fall within the product scope and that the corresponding export transactions had therefore been taken into account in the dumping calculation. Consequently, in recitals 25 to 35 in the preamble to that regulation, after recalling the arguments put forward by the TMK group, according to which the products were ‘blanks’ which did not fall within those products’ scope, as the incorrect tariff classification had resulted in ‘an increase of their dumping margin from circa 13%-14%’, the Council sets out the reasons why those SPTs must be regarded as falling within those products’ scope.

19      Following a request for binding tariff information (‘BTI’) filed on 26 October 2012 by a Slovak company related to a European customer of the TMK group acting on behalf of that customer and in its name, on 11 December 2012 the Slovak authorities issued a BTI concerning certain products sold to that customer by the TMK group and considered by the TMK group to be ‘pipes having the same characteristics and the same intended use as those of the blanks sold [in the present case] during the review investigation period’. However, this latter contention is disputed by the Council and the Commission, which consider this to be unsubstantiated. The Slovak authorities classified those products under CN subheading 7304 59 10. Other national authorities issued BTIs that classified under CN subheadings 7304 39 92 and 7304 39 93 pipes which, according to the Council, were similar to those products sold to that customer by TMK. However, that claim is contested by the applicants.

 Procedure and forms of order sought

20      By application lodged at the Court Registry on 23 February 2013, the applicants brought the present action. By separate document of the same date, they submitted an application for the case to be decided under the expedited procedure. On 25 March 2013, the President of the Second Chamber of the Court rejected that application.

21      On 25 April 2013, the Commission submitted an application to intervene in support of the Council. By order of 12 June 2013, the President of the Second Chamber of the Court granted the Commission leave to intervene.

22      Following an alteration of the composition of the Court, the Judge-Rapporteur was attached to the Fifth Chamber, to which this case has therefore been assigned.

23      On 12 June 2013, ArcelorMittal Tubular Products Ostrava a.s., Benteler Steel/Tube GmbH, Dalmine SpA, Productos Tubulares SA, Rohrwerk Maxhütte GmbH, ArcelorMittal Tubular Products Roman SA, Silcotub SA, Tubos Reunidos Industrial, SL, V & M Deutschland GmbH, V & M France, Vallourec Mannesmann Oil & Gas France and voestalpine Tubular GmbH & Co. KG submitted an application to intervene in support of the Council.

24      By order of 7 October 2013, the President of the Fifth Chamber of the Court granted the companies referred to in paragraph 23 above leave to intervene, while stating that their application to intervene was made after the period of six weeks laid down in Article 115(1) of the Rules of Procedure of the General Court of 2 May 1991, as extended on account of distance under Article 102(2) of those rules, and that the provisions laid down in Article 116(6) of those rules were applicable.

25      The applicants claim that the Court should:

–        annul the contested regulation ‘in so far as it includes the sales made by TMKI [to the European customer] referred to in paragraphs 23 to 33 of that regulation in the scope of the review investigation’;

–        as a consequence of the partial annulment requested, correct the rate of the anti-dumping duty applicable to the TMK group from 28.7% to 13.6%; and

–        order the Council to bear the costs of these proceedings.

26      The Council, supported by the interveners, contends that the Court should:

–        dismiss the application;

–        order the applicants to bear the costs.

27      By way of measures of organisation of procedure, in accordance with Article 64 of the Rules of Procedure of the Court of 2 May 1991, the applicants and the Council were asked to respond in writing to certain questions and produce certain documents. They complied with those requests within the prescribed time-limits.

28      On 20 February and 3 March 2015, the applicants requested confidential treatment in respect of the interveners, other than the Commission and the public, of certain parts of the replies provided by them and by the Council to the Court’s questions, and the documents annexed thereto. They also provided the Court with non-confidential versions of those replies and documents. By order of 5 March 2015, the President of the Fifth Chamber of the Court granted those requests for confidentiality, subject to any subsequent amendment of that decision.

29      On hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral stage of the procedure.

 Substance

30      The applicants put forward three pleas in law. The first plea alleges that the contested regulation unlawfully relied upon criteria other than those set out in the wording of the relevant customs provisions to determine the tariff classifications of the products sold by the TMK group to the European customer. The second plea alleges that the grounds relied on by that regulation to conclude that the products at issue did not fall under CN subheading 7304 59 10 were flawed. The third plea alleges that, in the present case, the mere fact that those products were actually used in the manufacture of tubes and pipes with other cross-sections and wall thickness proved that those products fell under that subheading.

 The first plea in law, alleging that the contested regulation unlawfully relied upon criteria other than those set out in the wording of the relevant customs provisions to determine the tariff classifications of the products sold by the TMK group to the European customer

31      The applicants claim that neither the Council nor the Commission disputes that the pipes classifiable under CN subheading 7304 59 10 do not fall within the scope of the anti-dumping measures imposed on Russian SPTs and, therefore, within the products scope which was the subject of the interim review investigation. According to them, what is disputed in the present case is whether or not the products sold by VTZ to the European customer during the review investigation period are to be classified under that subheading.

32      In this regard, the applicants essentially claim that in finding the decisive criterion for the tariff classification of the products, the Commission and the Council misunderstood the scope of the relevant customs provisions, in particular the binding and exhaustive character of the Explanatory Note to CN codes 7304 39 10 and 7304 59 10. Specifically, in their view, the contested regulation contains an error in law in so far as it relies upon criteria other than those set out in the wording of the relevant customs provisions. They contend that it must be annulled for the simple reason that it is based on a fanciful and innovative interpretation of the notion of unworked pipe. Moreover, they claim that the regulation unlawfully relies upon the criterion of end-use even though, in accordance with their claims the primary intended use of the blanks is decisive for their classification. They also claim that the contested regulation, relying on criteria which are not set out in any customs provision, leads to a different conclusion from that certified in the BTIs by the Slovak authorities. Those authorities however carried out a ‘correct and reliable’ exercise of their discretional power. Finally, the applicants claim that in the absence of a definition of the term ‘unworked’, in the relevant customs rules, the intended use of the blanks is decisive for its interpretation. This is also the intended use of the products sold by the TMK group to the European customer enabling the latter to distinguish between ‘blanks’ and other pipes.

33      The Council, supported by the interveners, disputes the applicants’ arguments.

34      At the outset, it must be recalled that, in the sphere of measures to protect trade, the EU institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine (see judgment of 22 May 2014 in Guangdong Kito Ceramics and Others v Council, T‑633/11, EU:T:2014:271, paragraph 41 and the case-law cited).

35      Review by the EU judicature of the institutions’ assessments must therefore be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (see judgment in Guangdong Kito Ceramics and Others v Council, cited in paragraph 34 above, EU:T:2014:271, paragraph 42 and the case-law cited).

36      The Court notes that where the EU institutions have a wide power of appraisal, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance and that those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision (see judgment in Guangdong Kito Ceramics and Others v Council, cited in paragraph 34 above, EU:T:2014:271, paragraph 43 and the case-law cited).

37      Furthermore, it is generally for the parties pleading the illegality of an anti-dumping regulation to adduce evidence proving their claims (see, to that effect, judgments of 16 April 2015 in TMK Europe, C‑143/14, ECR, EU:C:2015:236, paragraph 42, and 18 March 2009 Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, ECR, EU:T:2009:72, paragraphs 229 and 231).

38      In this case, the applicants’ claims relate, in essence, to the tariff classification of the products sold by the TMK group to the European customer, namely, certain quantities of SPTs exported from Russia. It is undisputed that the main issue in the present dispute is whether those products fall under one of subheadings corresponding to codes listed in paragraph 5 above and, therefore, whether they are included within the product scope, which were covered by the interim review.

39      In those circumstances, it should be noted that, even though the EU institutions have a broad discretion in the area of trade defence measures, which implies limited judicial review of its exercise, as has been recalled in paragraphs 34 to 37 above, this does not apply only to the nature and scope of the measures to be taken but also applies, to some extent, to the finding of the basic facts, the fact remains that the obligation on the competent institutions to examine carefully and impartially all the relevant aspects of the case, in particular requires them to show before the EU judicature that in adopting the act they actually exercised their discretion. In addition, not only must the EU judicature establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, judgment of 8 May 2012 in Dow Chemical v Council, T‑158/10, ECR, EU:T:2012:218, paragraph 59). Moreover, concerning, specifically, the tariff classification of the products sold by the TMK group to the European customer, both the institutions concerned and, then, the EU judicature, must proceed in the light of the objective characteristics and properties of those products and following the general rules for the interpretation of the CN, in order to ensure legal certainty and ease of verification (see, inter alia, paragraphs 40 to 46 below).

40      In that context, it must be recalled that the Combined Nomenclature (‘CN’) as laid down in Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) is based on the Harmonised Commodity Description and Coding System drawn up by the Customs Cooperation Council, now the World Customs Organisation, established by the International Convention concluded at Brussels on 14 June 1983, which was approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the International Convention on the Harmonised Commodity Description and Coding System and of the Protocol of Amendment thereto (OJ 1987 L 198, p. 1).

41      The wording of the relevant provisions of the CN, set out in Annex I to Regulation No 2658/87, as amended, in accordance with Article 12(1) of that regulation, according to which the Commission is to adopt each year a regulation reproducing the complete version of the CN, together with the rates of duty, as resulting from measures adopted by the Council or the Commission. That amended regulation is to apply from 1 January of the following year. The version of the CN which applies to Implementing Regulation No 585/2012, and to the contested regulation, is that set out in Regulation No 1006/2011.

42      In accordance with Regulation No 1006/2011, the products covered by CN subheading 7304 59 10 are ‘“tubes, pipes and hollow profiles” seamless, of iron (other than cast iron) or steel — Other, of circular cross-section, of other alloy steel — Unworked, straight and of uniform wall thickness, for use solely in the manufacture of tubes and pipes with other cross-sections and wall thicknesses’. That definition corresponds, moreover, to that contained in Commission Regulation (EU) No 861/2010 of 5 October 2010, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2010 L 284, p. 1).

43      Next, it should be noted that, according to the second indent of Article 9(1)(a) of Regulation No 2658/87, the Commission provides explanatory notes concerning the CN, which it regularly publishes in the Official Journal. As regards the present case, the relevant version was published on 6 May 2011 (OJ 2011 C 137, p. 1). The Explanatory Note to CN codes 7304 39 10 and 7304 59 10, state that ‘[t]his subheading includes seamless steel tubes usually obtained by piercing and hot-rolling or by piercing and hot-drawing; they are usually called “blanks”’, that ‘[t]hey are intended to be transformed into tubes of other shapes and wall thickness with more reduced dimensional tolerances’, that ‘[t]hey are presented with the ends roughly cut off and deburred but are otherwise unfinished’, that ‘[t]heir exterior and interior surfaces are rough and not descaled’ and that ‘they are not oiled, zinc-coated or painted’. Moreover, that same explanation is also reproduced in the subsequent version of those explanatory notes, of 4 March 2015 (OJ 2015 C 76, p. 1).

44      The general rules for the interpretation of the CN, which are set out in Section 1, Title I, A, thereof, provide, in particular:

‘Classification of goods in the [CN] shall be governed by the following principles.

1.      The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

2      (a)      Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

…

6.      For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’

45      It is also necessary to point out that, according to settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the tariff classification of goods is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the section or chapter notes (see judgments of 2 August 1993 in Jepsen Stahl, C‑248/92, ECR, EU:C:1993:347, paragraph 9 and the case-law cited; 15 November 2012 Kurcums Metal, C‑558/11, ECR, EU:C:2012:721, paragraph 29 and the case-law cited; and 20 June 2013 Agroferm, C‑568/11, ECR, EU:C:2013:407, paragraph 27 and the case-law cited).

46      The explanatory notes drawn up by the Commission as regards the CN and by the World Customs Organisation as regards the Harmonised Commodity Description and Coding System are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see judgment in Kurcums Metal, cited in paragraph 45 above, EU:C:2012:721, paragraph 30 and the case-law cited). Thus, although those explanatory notes do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, order of 22 October 2014 in Mineralquelle Zurzach, C‑139/14, ECR, EU:C:2014:2313, paragraph 32 and the case-law cited).

47      In the present case, first, it is clear from the examination of CN subheading 7304 59 10, referred to in the applicants’ claims, that it concerns certain specific products, namely, ‘tubes, pipes and hollow profiles’, fulfilling precise requirements, relating, first, to their objective characteristics in the true sense of those words and, second, to their intended use. Thus, unlike those claims which specifically, or even exclusively, point out the importance of the analysis of the intended use of the products, the Court must take the view that to be classified under that subheading, a product must fulfil all of the characteristics laid down. Any product that does not possess one or other of those characteristics must be classified under a different CN subheading.

48      Second, according to recitals 23 to 35 in the preamble to the contested regulation, the Council considered that the products sold by the TMK group to the European customer do not fall under CN subheadings 7304 39 10 or 7304 59 10, but rather within the products’ scope, which were covered by the interim review, as defined in recital 11 in the preamble to that regulation, which also refers to Implementing Regulation No 585/2012. The reasoning adopted by the Council, in that regard, can be divided, in essence, into two parts.

49      As regards the first part (recitals 23 to 32 of the contested regulation), this relates, in essence, to the question of what the inherent characteristics, in the true sense of those words, of the products sold by the TMK group to the European customer were. As regards the second part, this relates to the analysis of the intended purpose of those products (recitals 33 to 35 of the contested regulation).

50      Specifically, as regards the first part, first, the Council recalled, in recital 23 in the preamble to the contested regulation, that the applicants had showed to the Commission services during the on-the-spot verification visits, samples in the form of cross-sections cuts of the product which, according to them, did not fall within the relevant product scope, before and after further processing. However, according to the Council, the samples could not be regarded as constituting conclusive evidence. As stated in recital 24 in the preamble to that regulation, it was considered, therefore, that the SPTs purchased by the European customer from the applicants fell within the product scope.

51      Second, after setting out, in recital 25 in the preamble to the contested regulation, several elements of the verification procedure carried out by the Commission, concerning, in particular, the products sold by the TMK group to the European customer, the Council stated, in recital 26 to that regulation that that group made it clear that it had not been demonstrated that the products were not ‘unworked’ and the conclusions that these ‘blanks’ were ‘semi-finished’ or ‘partially worked’ products were ill-founded.

52      Third, in recitals 27 et seq. in the preamble to the contested regulation, the Council considered, in essence, that based on the various documents collected during the on-the-spot verification visits, such as a purchase order from the TMK group’s European customer (‘the purchase order’) and the specifications, the intercompany contracts, the invoices issued by related importers and the description of the standard ISO 9809-1, the tubes at issue had to be in fact regarded as ‘semi-finished’, in the sense that they corresponded to certain requirements and specifications such as ‘top quality SS hot finished tubes for cylinders, in steel type 34CrMo4 subject to UNI EN 10083-1 and DIN 1629 “annealed coarse” and “smooth at ends”, of the dimensions specified in [that] purchase order’. Furthermore, it was noted that other requirements which are listed in that purchase order and specifications such as ‘ultrasonic testing for feasible defects, thickness control, ovalisation and straightness’ also pointed to further processing of these tubes, which is not the case for so-called ‘blanks’.

53      Fourth, in recitals 28 and 29 in the preamble to the contested regulation, the Council, summarised the TMK group’s claims. In essence, it is noted that that group claimed, first, that the features of ‘annealed coarse’ and ‘smooth at ends’ are not among the criteria listed in CN subheadings 7304 39 10 and 7304 59 10 and the Explanatory Note to CN 7304 39 10 and 7304 59 10 to determine whether a pipe is ‘unworked’. Second, the TMK group also claimed that the tubes at issue were not annealed as they were not heat treated, as indicated in the mill test certificates.

54      In that regard, the Council noted, in the contested regulation, first, that the heading of the CN subheadings and the explanatory notes relating to the codes corresponding to those subheadings do not always contain an exhaustive list of all the features of the products covered. In essence, the Council indicated that the tariff classification took into account the most important features of the imported goods. Therefore, in the Council’s view, it is conceivable that features, which were not among the criteria listed in the text of those subheadings or the explanatory note relating to those codes, may be important elements when assessing whether product types could be considered to be ‘unworked’ and thus falling under those subheadings.

55      Second, as regards ‘heat treatment’, the Council stated that the purchase specifications of the European customer contained contradictions in respect of the mill test certificates, since they mention heat treatment of the products. It also pointed to the fact that reference to these purchase specifications was made in other documents such as the manufacturer declaration issued by the TMK group and the specifications to the contracts signed by the TMK group and its unrelated customer.

56      The Council also stated, in recital 30 in the preamble to the contested regulation, that, in the intercompany contracts provided by the TMK group during the on‑the‑spot verification, the products sold to the European customer were initially classified in a different CN subheading, under measures, and were changed to a CN code corresponding to another CN subheading not under measures, including during the period at issue. However, according to the Council, there were no changes to the customer purchase order and product specifications. While accepting subsequently, as the TMK group claims, that the objective characteristics of the goods at the time of their importation to the Union were an important element, it stated that that group’s actions, consisting of the abovementioned changing the tariff classification of those products without there being any change in the specifications of those products constituted one of the elements that leads to the conclusion that the ‘concerned … types [of product fell] within the scope of the investigation’.

57      In recital 31 in the preamble to the contested regulation, the Council stated that the unrelated customer’s purchase specifications clearly referred to ‘semi-finished’ products rather than ‘blanks’ or ‘hollows’ has some value in respect of the tariff classification, contrary to what the TMK group claims, in the sense that that customer is obviously aware of the product requirements at the time of order.

58      Finally, in recital 32 in the preamble to the contested regulation, the Council concluded that ‘the semi-finished seamless steel tubes produced with heat treatment purchased for the purpose of producing such cylinders [had] to correspond to very detailed technical/quality/dimensional requirements’ and that those ‘features … clearly [do] not [correspond to] the notion of “unworked” as mentioned in the Explanatory Notes to CN 7304 39 10 and 7304 59 10’.

59      In its pleadings, the Council argues that ‘if the [a]pplicants, or [the European customer], had correctly classified the products [sold by the TMK group to that customer], they would have used CN codes 7304 59 92 or 93, depending on the outside diameter of the product’. The Council recalls that CN code 7304 59 93 appeared on several occasions in documents issued by the TMK group. The Council, claims, in so far as those products were not ‘unworked’, there was no longer any need to assess their intended purpose beforehand, since those products did not fall, in any event, under CN subheading 7304 59 10. As for the Commission, it adopts that approach, while, at the same time, claiming that the intended use of those products constitutes an additional reason not to classify them under that subheading.

60      The Court observes, first, that, in accordance with the judgment in Kurcums Metal, cited in paragraph 45 above (EU:C:2012:721), the explanatory notes drawn up by the Commission as regards the CN, which do not have legally binding force, cannot be considered as having to apply on every occasion.

61      As is clear from the Court of Justice’s case-law, the content of the explanatory notes drawn up by the Commission as regards the CN must be consistent with the provisions of the CN and may not alter their scope (see, to that effect, judgment of 2 November 2012 in Digitalnet and Others, C‑320/11, C‑330/11, C‑382/11 and C‑383/11, ECR, EU:C:2012:745, paragraph 34 and the case-law cited).

62      According to that case-law, where it is apparent that the explanatory notes drawn up by the Commission as regards the CN are contrary to the wording of the headings of the CN and the section or chapter notes, they must be disregarded (see, to that effect, judgment in Digitalnet and Others, cited in paragraph 61 above, EU:C:2012:745, paragraph 35 and the case-law cited).

63      Next, it should also be pointed out that, according to settled case-law, the meaning and scope of terms for which EU law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see, to that effect, judgment in Digitalnet and Others, cited in paragraph 61 above, EU:C:2012:745, paragraph 38 and the case-law cited).

64      Finally, it is clear from the case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of EU law. Where there is a divergence between the various language versions, the provision in question must thus be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (see, judgment of 3 March 2011 in Commission v Netherlands, C‑41/09, ECR, EU:C:2011:108, paragraph 44 and the case-law cited).

65      In the present case, as a preliminary point, it must be pointed out that no party to the dispute has argued, either during the administrative procedure or before the Court, that the Explanatory Note relative to CN codes 7304 39 10 and 7304 59 10 might be contrary to the wording of the CN subheading to which those codes correspond.

66      The applicants claim, in essence, that the Explanatory Note relative to CN codes 7304 39 10 and 7304 59 10 must be regarded as exhaustive, since an opposite approach, in their view, leads to the risk of arbitrary decisions by the institutions, on the basis of criteria not set out in the regulatory framework. At the hearing, they also pointed to the need to interpret the explanatory notes drawn up by the Commission as regards the CN in a way that they retain a practical effect.

67      In that regard, the Court finds, first, that the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 includes passages whose purpose is as an aid to interpreting the notion of an ‘unworked’ product, as is clear from the subheadings to which those codes correspond.

68      The first sentence of the Explanatory Note to the CN codes 7304 39 10 and 7304 59 10 indicates that ‘[t]his subheading includes seamless steel tubes usually obtained by piercing and hot-rolling or by piercing and hot-drawing; they are usually called “blanks”’. Apart from the fact that it is pointed out that the pipes in question must be seamless, reference is also made to the manufacturing process by which those tubes may be produced; the latter process can be regarded as being in principle relatively rudimentary. Moreover, the use of the term ‘blanks’ demonstrates also that the Commission was referring, when interpreting the concept of an unworked product, to a product that is upstream, at the beginning of a manufacturing process, since it may consist of, as the case may be, two or more consecutive steps. It is well known that in its ordinary meaning the word ‘blanks’ refers to an initial, still imperfect, form which is given to a work or product or, in the case of a material, the first shaping of that product.

69      Furthermore, the second sentence of the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 concerns the intended use of products covered by the subheadings to which these codes correspond, and therefore relates to the second part of the reasons given by the Council in the contested regulation (see paragraph 49 above). However, here, it should be noted that, since reference is made to the transformation ‘into tubes of other shapes and wall thickness with more reduced dimensional tolerances’, this is an additional indicium that the Commission considered, in its interpretation, that the ‘unworked’ products were right at the beginning of a transformation process consisting of two or more consecutive steps.

70      The third sentence of the Explanatory Note to the CN codes 7304 39 10 and 7304 59 10 states, in turn, that the products covered by the subheadings to which those codes correspond ‘are presented with the ends roughly cut off and deburred but are otherwise unfinished’. From this it is clear that it is only as an exception that those products can be worked, and then only, aside from being roughly cut off, by being deburred, with all other practices being prohibited.

71      As for the precise meaning of that term ‘deburring’, the Council stated, in paragraphs 24 et seq. of its reply, dated 10 February 2015, to the Court’s questions, that it was the process by which excess metal or ‘burr’ is removed after the cutting process in order to avoid any risk of injury by being cut. It stated that the operation is done, for safety reasons, on unworked ‘blanks’ and that burrs are commonly removed manually.

72      In that regard, it must be held that, in its usual sense, as understood in the technical context to which it relates, the term ‘deburring’ actually refers to the action by which the producer removes from the products burrs, that can consist of various residues formed during their manufacture. The applicants have also not provided any different definition of that term and, a fortiori, have not put forward any evidence enabling one to be established. They only pointed to the fact that it involved a technical action which was compatible with the explanatory notes drawn up by the Commission as regards the CN. In those circumstances, the reference to the term must be understood as reinforcing the thinking adopted by the Commission in those explanatory notes, according to which an ‘unworked’ product was to be subject to only the bare minimum of technical treatments, which were consistent with the fact that the products concerned were at the initial stage of a manufacturing process.

73      Finally, the last two sentences of the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 relate to the fact that the exterior and interior surfaces of the products under the subheadings to which those codes relate ‘are rough and not descaled [; t]hey are not oiled, zinc-coated or painted’. Thus, it should be noted that those requirements or additional specifications cover products in the initial manufacturing state, which are unworked in substance and, clearly, unfinished. Although they may be scaled, as a result of the manufacturing process, they must not however have undergone the other transformations mentioned above.

74      In that context, it is clear that the taking account by the Commission and by the Council of certain additional criteria, in order to assess whether or not the products sold by the TMK group to the European customer had an ‘unworked’ character, must be understood, first, as forming part of a correct approach when assessing all the particular factual circumstances of the present case, according to which the abovementioned institutions were to analyse, in particular, certain technical and commercial documents, of which they had become aware during the on-the-spot verification visit to VTZ (see, in that respect, in particular paragraphs 7, 52 and 56 above).

75      Furthermore, as is apparent from paragraphs 67 to 73 above, even the explanatory notes drawn up by the Commission as regards the CN were aimed in particular at interpreting the term ‘unworked’, contained in the wording of CN subheadings 7304 39 10 or 7304 59 10. The various assertions of the Council were made in that context, in particular those in recitals 27 et seq. in the preamble to the contested regulation, which referred to the technical and commercial elements set out in paragraph 52 above.

76      Contrary to what the applicants claim, the Council’s approach cannot be regarded as contrary to the CN or the explanatory notes drawn up by the Commission as regards the CN.

77      First of all, with regard to CN subheadings 7304 39 10 or 7304 59 10, since their wording included the term ‘unworked’, which is not otherwise defined in the relevant chapter of the CN, it was for the Commission and, then, the Council to interpret it, in particular, by taking into account the principles of interpretation developed in the judgments in Digitalnet and Others, cited in paragraph 61 above (EU:C:2012:745, paragraph 38), and Commission v Netherlands, cited in paragraph 64 above (EU:C:2011:108, paragraph 44 and the case-law cited).

78      Next, as regards the explanatory notes drawn up by the Commission as regards the CN, it has been recalled that, even though, according to the judgment in Kurcums Metal (cited in paragraph 45 above, EU:C:2012:721, paragraph 30), they were an important aid to the interpretation of the scope of the various tariff headings, they were, however, not binding. Moreover, in the present case, as has been found in paragraphs 75 and 76 above, in the context of its interpretation of the term ‘unworked’, the Council was correct in assessing at what stage of manufacture were the products sold by the TMK group to the European customer, in order to determine if they were at an early enough stage to be able to be designated by that term set out in the wording of CN subheading 7304 39 10 or 7304 59 10. In those circumstances, the Council was fully entitled to consider that the explanatory notes drawn up by the Commission as regards the CN, may be regarded as useful aids to the interpretation of the wording of those subheadings (see, to that effect, order in Mineralquelle Zurzach, cited in paragraph 46 above, EU:C:2014:2313, paragraph 32 and the case-law cited).

79      Furthermore, contrary to what the applicants claims, although account should be taken of the guidance provided by the Explanatory Note to CN codes 7304 39 10 and 7304 59 10, and in particular on the interpretation of the term ‘unworked’, as stated in paragraphs 67 to 73 above, that guidance cannot be judged, in the present case, to be exhaustive. In particular, there is no legal basis supporting the applicants’ view that institutions at issue would be prohibited, as the case may be, from taking into account technical considerations other than those expressly mentioned in the explanatory notes drawn up by the Commission as regards the CN, for the purposes of determining whether the products sold by the TMK group to the European customer, were ‘unworked’.

80      It must be pointed out that the approach advocated by the applicants would bestow on the explanatory notes drawn up by the Commission as regards the CN a higher value than that of the EU legislation concerning the CN. Were that approach to be followed, it could result in the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 unduly restricting the scope of the terms used in the wording of subheading corresponding to those codes, thus disregarding the fact that when the CN was drafted, it was possible to envisage that account would be taken of situations, other than those prescribed by the Commission in the explanatory note, in which certain products had to be regarded as not falling within a tariff classification. That would amount to giving the explanatory notes drawn up by the Commission as regards the CN, binding and amending legal force in relation to the scope of the provisions of the CN, which is contrary to the principle set out in the judgment in Digitalnet, cited in paragraph 61 above (EU:C:2012:745, paragraphs 33 to 35 and the case-law cited).

81      On the contrary, the Court finds that it is conceivable that a specific finishing on a product, which, although not at all mentioned in the explanatory notes drawn up by the Commission as regards the CN, may be reason for considering that product as not ‘unworked’ but, at the very least, ‘semi-finished’, in light of its objective characteristics and properties, notwithstanding the fact that it otherwise fulfils the other requirements set out in those explanatory notes.

82      That conclusion is strengthened, first, by the fact that in the present case, one of the terms to be interpreted, namely the term ‘unworked’ is not defined directly in the CN, and is, in particular, open, as a result of its rather broad conceptual sense, to an objective analysis for the purposes of the judgment in Digitalnet, cited in paragraph 61 above (EU:C:2012:745, paragraph 38). Moreover, the applicants’ argument that there is no difference between ‘unworked’ and ‘semi-finished’ tubes cannot be considered to be well founded. First, as will be analysed in paragraphs 116 and 117 below, it is also apparent in the context of the CN, taken as a whole, that those terms are not used, generally, as equivalents. Second, even the applicants, in the reply, accept that some differentiations could exist between ‘unworked’ and ‘semi-finished’ tubes. They refer, in that regard, in particular to ‘descaling’, ‘calibration’, ‘threading’ and ‘coating’, while considering that the differences only ‘concern[ed] relatively minor aspects’. In their view, the features which a ‘blank’ may or may not have were not relevant for its tariff classification.

83      Second, it should be noted that, contrary to what the applicants claim, not even an analysis of the various language versions of the Explanatory Note to CN codes 7304 39 10 and 7304 59 10, could lead to the conclusion that that explanatory note was comprehensive. In that regard, it is clear, first, that even in the event that any language version of this explanatory note could be interpreted in this way, this would not invalidate the assessments made in paragraphs 79 et seq. above, which concern, in principle, the assessment of the position of the explanatory notes drawn up by the Commission as regards the CN in the hierarchy of norms.

84      Second, and in any event, it should be noted that the French version of the Explanatory Note to CN codes 7304 39 10 and 7304 59 10, raised by the applicants, in so far as it contained the expression ‘sont classés ici’ (shall be classified here), also stated that the products had to be ‘obtenus principalement’ (usually obtained) by certain technical processes, as detailed later, which is an additional linguistic indicium that the explanatory notes drawn up by the Commission as regards the CN are not exhaustive. Moreover, it is also clear from the terms used in other language versions of that explanatory note, in particular the English, German, Italian and Spanish versions, that the Commission was seeking in fact to provide guidance as to the interpretation of the CN. It is with that in mind that the following language elements from that explanatory note may be noted: the English expression ‘[t]his subheading includes’ and ‘usually obtained by’, the German expression ‘Hierher gehören hauptsächlich’, the Italian expression ‘ottenuti principalmente mediante’ and the Spanish expression ‘obtenidos principalmente’.

85      Furthermore, in order to provide guidance for reading the CN, the Commission had, in addition to the reference to the ‘principal’ technical production process, set out the types of finishing which were acceptable and which were not, by employing, subsequently, a broad expression, namely, ‘but are otherwise unfinished’. The guidance given by the Commission is clearly aimed at determining whether the products are in an early stage of the manufacturing process, since their intended use is, afterward, to be exclusively transformed into tubes of other shapes and wall thickness with more reduced dimensional tolerances.

86      In view of all the foregoing, the Court finds that the Council did not commit an error of law when analysing certain additional elements compared to those explicitly mentioned in the Explanatory Note to the CN codes 7304 39 10 and 7304 59 10, and in particular when assessing the ‘unworked’ nature of the products sold by the TMK group to the European customer. In the circumstances of the present case, and without prejudice to the analysis which will be carried out when examining the second and third pleas, it must be held that the criteria put forward by the Council cannot be deemed arbitrary, contrary to legal certainty or, finally, as depriving the explanatory notes drawn up by the Commission as regards the CN of any practical effect.

87      This conclusion cannot be invalidated by the applicants’ other arguments.

88      In that regard, first of all, contrary to what the applicants claim, referring, inter alia, to the judgment of 28 June 2005 in Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraph 211), it cannot be considered, in the particular context of the interpretation of the CN and the explanatory notes drawn up by the Commission as regards the CN (see, in particular, paragraphs 45, 46 and 60 to 64 above), that the Court should apply by analogy, the principles relating to the legal effects that may be produced from Commission ‘guidelines’, such as those issued in certain other areas of European economic law. In particular, that finding is not called into question by the reference made by the applicants in the reply, to a general document of the Commission, accessible on the Internet, stating that ‘[there] is no fundamental structural difference between the explanatory notes and the guidelines’. Moreover, the Commission supported, in the present case, the Council’s interpretation that those explanatory notes constituted non-binding guidance.

89      Next, regarding the applicants’ claims concerning the alleged reference by the Council, to the end-use of the products sold by the TMK group to the European customer as a decisive criterion, which, according to them, would not be consistent with the conditions laid down in the relevant legislation of the European Union (see, also, paragraphs 32 and 49 above), it is clear that they result from an erroneous reading of the contested regulation. In that regulation, particularly in recital 33 in the preamble thereto, the Council had not based its conclusion — that those products were not to be classified under CN subheading 7304 39 10 or 7304 59 10 — on the products’ end-use. It relied instead on the determination that the applicants’ various claims — relating to the fact that since that customer purchased those products, transformed them through a manufacturing process consisting of two phases, by producing, using those products, first, cold-rolled tubes (also referred to as precision tubes) and, then, through further processing, gas cylinders or bottles — were made late in the investigation and had not, moreover, been supported by evidence presented in due time. Accordingly, a procedural question arose, namely whether the applicants put forward their arguments at a relevant stage of the administrative procedure and whether they discharged, on this particular point, the burden of proof — not a question as to the correct interpretation of the relevant customs rules — which, alone, comes under the present plea. Moreover, the Council itself, and the Commission, accepted before the Court, that the criterion relating to the end-use of the products in question was irrelevant for the purposes of their tariff classification.

90      In any event, it should be added that, in the present case, it is enough that one of the two pillars, upon which the contested regulation was founded in order to serve as a basis for the conclusion that the products sold by the TMK group to the European customer fell within the product scope, which were covered by the interim review (see paragraphs 48 and 49 above), is shown to be well founded for the applicants’ claims, alleging that that regulation is unlawful, to be rejected.

91      Finally, as regards the reference made by the applicants to the BTIs issued by the Slovak authorities, the Court should point out, first of all, as the Council noted, that, since the latter was adopted only on 11 December 2012, that is to say after the investigation period and the importation into the EU of the products sold by the TMK group to the European customer and since it has not been shown that such BTIs were presented to investigators during the administrative procedure, and that the validity date indicated on the BTIs, is ‘from 11 December 2012’ and given that the BTIs are not retroactive, the BTIs accordingly cannot be considered relevant in the present case. It should be recalled that, in accordance with Article 12(2) of Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), a BTI is binding on the customs authorities only in respect of goods on which customs formalities are completed after the date on which the information was supplied by them. In particular, the assessments made by the EU institutions must be examined solely on the basis of the information available to those institutions at the time when those assessments were made (see, to that effect, judgment of 11 May 2005 in Saxonia Edelmetalle and ZEMAG v Commission, T‑111/01 and T‑133/01, ECR, EU:T:2005:166, paragraph 67).

92      Moreover, it should be noted that the applicants did not present to the Court evidence that the technical specifications, provided to the Slovak authorities by the company which requested the BTIs issued by the Slovak authorities, were identical or directly comparable to those for products sold by the TMK group to the European customer. In particular, the applicants did not submit to the Court the written request that those BTIs be issued, with the abovementioned technical elements. Thus, the Court is unable to rule on the question of whether, those products match those described in the BTIs in all respects, for the purposes of Article 12(3) of Regulation No 2913/92.

93      Moreover, it should also be noted in this latter regard, first, it is clear from the BTIs issued by the Slovak authorities that they refer to products intended for use in a specific technical process through specific production machinery. Contrary to what the applicants appear to state, inter alia in paragraph 5 of their observations to the statement in intervention of the Commission, it has not been shown that the same production machinery had also been used, in the present case, by the TMK group’s European customer to transform the products which that group had sold to that customer over the relevant period. In particular, it appears from some documents that the production machinery used by the European client was designated by a different number to the one mentioned in those BTIs. Similarly, those BTIs expressly mention that, subsequently, as part of that technical process, the products were to be transformed into ‘cold-rolled precision pipes’. No such reference appears, in the present case, in either the purchase order or manufacturers’ specifications. Second, it must be noted that, unlike what was provided for, in the present case, in that purchase order, no reference has been made in those BTIs, to specific technical standards, which would be used in the manufacture of those products, even though the reference to certain specific technical standards could have consequences in terms of the objective characteristics of those products (see, to that effect, paragraphs 109 et seq. below). Similarly, it was indicated in the BTIs at issue that the products concerned by the BTIs had ‘unworked’ exterior and interior surfaces, which is disputed in the present case (see, in particular, paragraphs 124 et seq. below).

94      Therefore, in any event, it is not possible either to adopt an analogous approach in respect of the BTIs issued by the Slovak authorities, or to consider the Council’s approach to be erroneous, which, following an assessment of the relevant technical elements specific to the present case, reached a different conclusion from that adopted by the Slovak authorities. In those circumstances, it is no longer necessary either to give a ruling on the possible relevance of various BTIs issued by other national authorities than the Slovak authorities to which the Council had referred or to assess in further detail the consequences of the fact that it, at the hearing, abandoned some of these references, in so far as it no longer considered them as relevant.

95      Therefore, the first plea must be dismissed.

 The second plea in law, alleging that the contested regulation relies on erroneous grounds to conclude that the products sold by the TMK group to the European customer do not fall under CN subheading 7304 59 10

96      The applicants argue that each and every argument used by the Council to support the conclusion that the products sold by the TMK group to the European customer are not to be classified under CN subheading 7304 59 10 were flawed. They claim, in essence that any distinction between ‘unworked’ and ‘semi-finished’ pipes is ill founded and objectively impossible, as both terms refer to ‘partially finished’ pipes. They submit that the ‘blanks’ purchased by the European customer were only ‘hot-formed’, described in the wording of both that subheading and the standard EN 10216-1. The specifications set out in the purchase order are irrelevant because they are preliminary documents for obtaining a quotation. In any event, according to the applicants, those specifications are consistent with the criteria laid down in the wording of CN subheading 7304 59 10.

97      On the latter point, the applicants claim, first, that the fact that the products sold by the TMK group to the European customer had been manufactured on the basis of a specific technical standard using a certain grade of steel also governed by a specific standard is irrelevant. The fact that the Council took into account specifications such as ‘thickness control, ovalisation and straightness’ is, according to the applicants, unlawful because those comments were not submitted to them during the administrative procedure. Moreover, those specifications concerning tolerance in relation to the abovementioned technical aspects simply confirm that those products were intended to be ‘straight and of uniform wall thickness’ and ‘of circular cross-section’. There is no further processing that is incompatible with the term ‘unworked’. The applicants also claim that ovalisation tolerance is not a relevant criterion for the purpose of classification under CN subheading 7304 59 10.

98      Second, according to the applicants, the specification of the wall thickness tolerance of 0% to 25% is consistent with classification under CN subheading 7304 59 10. They claim that Annex B.6, which contains a ‘limited’ version of a submission of the Union industry relating to this matter and ultrasonic testing of pipes, should be disregarded. Concerning that testing, the applicants claim that it is prescribed by the standard EN 10216-1. In the absence of specific standards for ‘blanks’, the fact that they underwent a final testing does not demonstrate, according to the applicants, any ‘further processing’.

99      Third, the applicants claim that, the reference, made by the European customer to ‘smooth at ends’ confirms that the products sold by the TMK group to that customer were ‘deburred’. They claim also that those products were not ‘annealed’. In any event, according to them, as such heat treatment is aimed at reducing hardness of the pipes and facilitating their cold working, it is not an indicium that they are ‘not unworked’, but that they were still due to be transformed into pipes of other cross-sections and wall thicknesses with more reduced dimensional tolerances.

100    Fourth, the applicants claim that the fact that the European customer’s purchase specification refers to ‘semi-finished’ products is irrelevant. The same applies to the fact that in some intercompany contracts the goods are classified under a different CN subheading. According to them, the grounds relied upon by the Council to conclude that the products sold by the TMK group to the European customer were not ‘for use solely in the manufacture of tubes, pipes and hollows with other cross-sections and wall-thicknesses’ were flawed and did not take account of the manufacturing process actually used by the European customer.

101    Lastly, the applicants claim, in addition, that it would be unreasonable to allow a unilateral document such as a purchase order to prevail over the contracts signed by the parties and over the official mill certificate. With regard to the intended use of the products sold by the TMK group to the European customer, they claim that the Commission is attempting to rectify its initial position, adopted during the administrative procedure without an adequate statement of reasons, which wrongly gave weight to their end-use. They consider that the rejection, without an adequate statement of reasons, of information which they had provided in this regard during the administrative procedure infringes the principle of sound administration and the rights of defence. They also dispute the claim that the European customer had purchased ‘semi-finished’ pipes from the TMK group in order to obtain further preciseness. Furthermore, as a matter of fact, the difference between such pipes and ‘blanks’ concerns only relatively minor aspects.

102    The Council, supported by the interveners, disputes the applicants’ arguments.

103    The Court considers it useful, first, to assess the applicants’ claims relating to the alleged errors in the considerations which led the Council to find that the products sold by the TMK group to the European customer could not be regarded as ‘unworked’ and thus could not fall under CN subheadings 7304 39 10 or 7304 59 10.

104    It should be pointed out that, should it prove that the Council was correct in concluding that the products sold by the TMK group to the European customer could not be regarded as ‘unworked’, it will no longer be necessary to examine the question of their intended purpose, since it is sufficient that one of the two pillars forming the basis of its conclusion that those products must be considered as falling within the product scope be well founded for the Court to have to reject the applicants’ claims that the contested regulation is unlawful (see also paragraphs 48, 49 and 90 above).

105    Admittedly, in that regard, the applicants argue that, in the absence of definition of ‘unworked’ in the CN, it is the intended purpose of the ‘blanks’ which is decisive when interpreting ‘blanks’ and distinguishing them from other pipes. In that respect, they adduce technical and commercial analytical evidence. However, suffice it to state that the Council’s approach, which took into account a set of technical elements in its possession for the purposes of assessing the ‘unworked’ nature of the products sold by the TMK group to the European customer, is not only not wrong in law, since it results from the interpretation of a term expressly contained in CN subheadings 7304 39 10 or 7304 59 10, which is consistent with the guidance provided in explanatory notes drawn up by the Commission as regards the CN, as noted in paragraphs 75 to 85 above, but it also does not preclude that, in other cases, the intended use of the products can be taken into consideration, or even become the determining factor for their tariff classification if it is inherent to such products (see, to that effect, judgment of 1 June 1995 in Thyssen Haniel Logistic, C‑459/93, ECR, EU:C:1995:160, paragraph 13).

106    More specifically, in the present case, contrary to what the applicants claim, the intended use of the products alone cannot constitute the decisive factor when interpreting ‘unworked’, since it is conceivable, as, inter alia, the Commission rightly argues, that both tubes in an ‘unworked’ state (the ‘blanks’) and semi-finished tubes could be used in a technical process ‘in the manufacture of tubes and pipes with other cross-sections and wall thicknesses’ as provided in particular by the wording of CN subheading 7304 59 10 or, according to the wording of the Explanatory Note to the CN codes 7304 39 10 and 7304 59 10, be ‘intended to be transformed into tubes of other shapes and wall thickness with more reduced dimensional tolerances’. The applicants have not demonstrated that it would not be technically possible and economically sustainable or reasonable to use, as part of a two-stage manufacturing process such as the one allegedly set up, upstream, at the European customer, semi-finished products, inter alia, in order to produce, downstream, better quality end products, that is to say, for the purposes of manufacturing better quality gas cylinders or with a view to obtaining guarantees that the safety criteria on the end products have been respected. It is true that the applicants argued that, although, from a technical viewpoint, such a technical process was feasible even for ‘semi-finished’ tubes, the technical features made the ‘blanks’ more suited for such manufacturing, or, in other words, that the intended use was ‘inherent’ to blanks. However, although they gave examples of certain ‘semi-finished’ tubes that were no more likely, technically speaking, to be ‘flow-formed’ as those with a ‘coating’, they have not provided evidence proving that it is impossible, in all circumstances, to do this for that type of tubes, even though the finding of the Commission and Council that the products sold by the TMK group to the European customer were ‘semi-finished’, was not based on the premiss that those products had a ‘coating’. As regards, next, certain claims relating to the fact that it would be ‘expensive’ to use ‘semi-finished’ tubes in a process such as that mentioned above, in the absence of any evidence supporting those claims, these are simply unsupported. Thus, it should be considered that, as argued by the Commission, it is undisputed that both ‘blank’ and semi-finished tubes can, in principle, still be machined. Accordingly, the criterion relating to the intended use of the products, while constituting a criterion necessary for the assessment of whether the products must be classified under that subheading, none the less is not the only decisive or sufficient criterion in that regard. Moreover, a contrary approach would not be consistent with the very fact that all those terms in the tariff classification standards concerned must be interpreted in such a way as to give them a practical effect.

107    Next, it should be noted that, in its replies of 10 February 2015 to the Court’s questions asked by way of measures of organisation of procedure, the Council, furthermore, contended that ‘all the factors listed in recital 27 of the contested [r]egulation are relevant for establishing that the pipes and tubes at issue were not “unworked” and could not, for that reason, fall under CN [subheading] 7304 59 10’ and that ‘[i]t is on the basis of a global assessment of all those factors in the specific case at hand that the Union institutions could decide that the [products sold by the TMK group to the European customer] during the investigation period did not fall under [that subheading]’.

108    According to the Council, ‘[h]owever, the fact that all the requirements and specifications mentioned in recital 27 [in the preamble to the contested regulation] are relevant for the determination of the objective characteristics and properties of the tubes does not imply that they all have the same level of probative value’. Thus ‘the specification “top quality SS hot finished tubes for cylinders” and the requirement to comply with DIN 1629, gave a very clear indication that the product was not “unworked”’.

109    In that regard, the Court finds, in the first place, that no technical standard is specifically provided for in the wording of CN subheadings 7304 39 10 or 7304 59 10, and thus is not specifically provided for the manufacture of ‘unworked’ products or, in other words, of ‘blanks’, as the Council admitted, also, in point 22 of its replies dated 10 February 2015 to the Court’s questions asked by way of measures of organisation of procedure in which the Council considered that ‘there are no standards, other than those relating to the composition of the steel, that are applicable to unworked hollows’, also taking ‘the opportunity to rectify a misleading statement’ mentioned earlier in its pleadings and on the possible application of specific technical standards to the manufacture of unworked ‘blanks’. However, contrary to the applicants’ assertions, the fact remains that the Council could consider, without erring in law, the technical standards actually used for the manufacture of the products sold by the TMK group to the European customer for the purposes of assessing what their objective characteristics are. That same consideration also applies as regards the analysis of the grade of steel actually used.

110    First, it should be noted that, contrary to the applicants’ claims, put forward at the hearing, the Court cannot hold that the Council was out of time when it forewent, in point 22 of its replies to the Court’s questions, referring to the technical standards which it had originally deemed, in its pleadings, as being ‘relevant to the manufacture of “unworked” products’ or, in other words, of ‘blanks’, namely, in particular, the international standard ISO 2398-1974, ‘establishing the technical conditions for “hollow steel bars for machining”’, and the European standard EN 10294-1 (2005), on the ‘Hollow bars for machining — Technical delivery conditions’; the withdrawal of that contention was not inadmissible. No procedural provision prevents the defendant from waiving the right to rely on a factual finding which it deems incorrect. Moreover, it should also be noted that such a change in the position by the Council, in that regard, specifically means that its position, at least to some extent, is closer to that of the applicants, which they themselves supported both in the administrative procedure and before the Court, namely that no particular technical standard had been provided for the production of ‘blanks’ within the meaning of CN subheadings 7304 39 10 or 7304 59 10.

111    Second, it should be noted that, in the present case, the decisive question is not whether the fact of making ‘a reference to [any technical] standards, other than those on the steel composition’, ipso facto permitted the conclusion that the products, manufactured in accordance with such standards, should be regarded as not ‘unworked’ as the Council appears to insinuate in point 23 of its replies to the Court’s questions, where it states that there was ‘objective indication’ to that effect, or whether, on the contrary, as argued by the applicants in the application, ‘blanks [could] be produced on the basis of different production standards and by using different steel types’ since there ‘does not exist a specific standard for the blanks falling within [the code corresponding to the subheading] CN 7304 59 10’. However, and without it thus being necessary to rule on the alleged lateness of the Council’s claim that the fact of referring to a technical standard permitted the conclusion that the products sold by the TMK group to the European customer were not ‘unworked’, it should be noted that the objective characteristics of those products could be assessed in view of technical standards actually used during their manufacture. Accordingly, contrary to the claims put forward by the applicants in the application, the Court cannot hold that the fact that those products may have been manufactured on the basis of a specific technical standard and by using a steel grade also governed by a specific standard, was ‘absolutely irrelevant for customs classifications purposes’.

112    That conclusion cannot be invalidated, first, by the applicants’ claims that the technical standards were not binding, and were from a standardisation organisation that only established uniform engineering or technical criteria, methods, processes and practices, which cannot, however, prevent a producer from manufacturing, on some occasions, its products on the basis of criteria other than those listed in the standards adopted by such organisations.

113    As has been stated in paragraph 110 above, the question of what technical standard was actually used in the manufacture of products sold by the TMK group to the European customer facilitates objective technical properties of those products to be clarified, thus enabling their classification in the relevant subheading of the CN, according to the principles resulting, in particular, from the case-law in Agroferm, cited in paragraph 45 above, (EU:C:2013:407, paragraph 27), and the judgment in Kurcums Metal, cited in paragraph 45 above, (EU:C:2012:721, paragraph 29 and the case-law cited).

114    Second, the case-law cited by the applicants, according to which ‘Euronorms are standards adopted by the European Committee for Standardisation and concern only the definition of steel products, independently of their classification for [tariff classification]’ and ‘[t]hose standards cannot therefore constitute a criterion in this case [for the purposes of that classification]’ (judgment in Jepsen Stahl, cited in paragraph 45 above, EU:C:1993:347, paragraph 13) is not decisive either. As is apparent in particular from paragraphs 10 and 11 of the judgment in question, it covers a particular situation, in which the manufacturing process, as expressly provided for in the tariff classification, is decisive, that is to say, a situation where a specific technical standard cannot prevail over the express wording of the CN. It cannot, however, be inferred from this that the application of certain technical standards cannot be one factor among many, when assessing the objective characteristics of the products.

115    In the second place, the Council was fully entitled to rely on the analysis of some other objective characteristics of the products, such as the reference to ‘smooth at ends’ for the purposes of assessing whether the fact that the products had to be subject to such a technical process could still be consistent with their classification in a tariff subheading whose wording contained the term ‘unworked’.

116    In that regard, besides the fact that the Council was not bound only by the wording of the explanatory notes drawn up by the Commission as regards the CN, whose purpose, incidentally, is also to interpret the term ‘unworked’ (see, in particular, paragraph 85 above), the Court cannot substantiate the claim of the applicants that any distinction between ‘unworked’ and ‘semi-finished’ tubes is unfounded and objectively impossible, since the two terms refer to ‘partially finished’ pipes. Given that the CN clearly refers to the term ‘unworked’ as one of the decisive factors for CN subheadings 7304 39 10 or 7304 59 10, and it is clear, moreover, from also a systemic analysis of the CN that the same term is used several times in other places, in particular, in relation to raw materials which are unworked, but, for example, merely cleaned (see, to that effect, CN headings 0505, ‘Skins ... unworked’, CN 0506, ‘Bones ... unworked’ and CN 0507, ‘Ivory ... unworked’), it cannot be considered irrelevant to proceed to interpretation of that term in this case.

117    Moreover, it should be noted that certain parts of the CN refers to the term ‘unworked’ where it is contrasted with the term ‘semi-finished’ [see, for example, CN heading 7107, worded ‘Base metals clad with silver, not further worked than semi-manufactured’ or CN heading 7108, worded ‘Gold (including gold plated with platinum), unwrought or in semi-manufactured forms, or in powder form’]. Accordingly, the Court finds that the terms ‘unworked’ and ‘semi-finished’ cannot be regarded as equivalent. Similarly, the Court cannot take the view, as claimed by the applicants, that it was only for natural products — that is to say, not processed — that the ‘unworked’ term had purpose and logic. The Court, by way of example, refers to CN heading 7104, worded ‘Synthetic or reconstructed precious or semi-precious stones, whether or not worked or graded but not strung, mounted or set; ungraded synthetic or reconstructed precious or semi-precious stones, temporarily strung for convenience of transport’, CN subheading 7104 20 of which is worded ‘Other, unworked or simply sawn or roughly shaped’.

118    Third, as regards the reference to the purchase order, in recital 27 in the preamble to the contested regulation, it should be noted that, contrary to what the applicants claim, the Council cannot be considered to have erred for having taken account of such a commercial document, which can be one factor among many in assessing the characteristics of the products sold by the TMK group to the European customer, in particular due to the fact that it reveals the original intentions of that customer. Moreover, it should be noted, first, that certain other documents, submitted to the Court by the applicants themselves, refer to, for example, the document, dated 20 March 2012, concerning the TMK group’s explanations sent to the Commission following the verification visit. The applicants refer to that purchase order, in particular, for the purpose of clarifying the relevance of the specific steel grade used to manufacture those products, in the light of the subsequent steps of the production process, during which they were transformed, in two successive steps, into the end products, namely into gas cylinders. Other intercompany documents, inter alia attached to the applicants’ pleadings, referring to that purchase order too, especially in the part containing the full technical specification of products ordered by that customer.

119    Moreover, account should be taken of the fact that the Commission and, subsequently, the Council were to evaluate a large amount of factual evidence in a situation where, first, the applicants had not submitted to them the sales information to the European customer because they considered that the products sold by the TMK group to that customer fell outside of the product scope, which were covered by the interim review. Thus, those institutions had to request additional documents in that connection and carry out verification visits on the premises of that group and certain associated companies as listed in recital 9 in the preamble of the contested regulation. In those circumstances, the Council and the Commission are fully entitled to argue, in essence, that in the context of a review of anti-dumping measures, which is prospective in scope, a purchase order is valuable evidence indicating that the customer intended to obtain tubes as defined by the terms and specifications used, not just unworked ‘blanks’. Therefore, the Court cannot accept the applicants’ argument that it would be unreasonable to allow a unilateral document such as a purchase order to prevail over the contracts signed by the parties and over the official mill certificate.

120    Admittedly, any final conclusion on the characteristics of the products sold by the TMK group to the European customer could be adopted by the Council only after analysing other concordant or discordant indicia. However, in that regard, it should be noted, first, that recital 27 in the preamble to the contested regulation refers precisely to such additional elements favouring the conclusion that those products were not covered by CN subheadings 7304 39 10 or 7304 59 10. Second, the Council was correct in pointing to the fact that the applicants themselves classified, during certain periods, other products with the features of those products under certain subheadings, inter alia, under CN subheading 7304 59 93, which appeared several times in that group’s documents. This is apparent, in particular, from various statements of the manufacturer, specifications, invoices or transport documents, attached by the Council to the defence. In the absence of any clear explanations on the part of the applicants as to the reasons why they had subsequently modified that tariff classification, by using CN subheadings 7304 39 10 or 7304 59 10, the Council was fully entitled to take account of that indicium too. In particular, the Court cannot regard as adequate, in that regard, the explanation given by the applicants at the hearing, that the use of other CN codes than that referred to in the application could be linked to the fact that in the Russian tariff nomenclature, the codes were conceived differently, such that the tariff classification was ‘not clear’ to them.

121    In those circumstances, and given the applicants’ various claims, the Court must at this stage to carry out a technical assessment of the various elements characterising the products sold by the TMK group to the European customer, put forward by the Council in the contested regulation. It is useful to consider, first, the criteria referring to the technical standards used for the manufacture of those products, and also the relevance of the fact that, as is clear in the purchase order, those products had to be ‘smooth at the ends’.

122    Should it appear that those elements demonstrate to the requisite legal standard that the products sold by the TMK group to the European customer could not be regarded as ‘unworked’, it will not be necessary to assess the merits of the applicants’ other claims concerning the relevance, as the basis for differentiating between ‘blanks’ and ‘semi-finished’ products which occurred at a more advanced stage of the production process, of the various references made by the Council, (i) to the fact that the seamless steel tubes should be ‘top quality’, (ii) to the fact that they had to be manufactured in the steel type ‘34CrMo4’, (iii) to the fact that they must have the dimensions specified in the order, (iv) to the fact that those were ‘annealed coarse’ products and, (v) to the fact that it was necessary to carry out ‘ultrasonic testing for feasible defects, thickness control, ovalisation and straightness’. Similarly, where this is the case, it will not be necessary to determine whether, when analysing the above criteria, the Council had committed errors of assessment.

123    In that context, it should be pointed out at the outset that the applicants themselves claimed, both in the administrative procedure and in their pleadings that the products sold by the TMK group to the European customer were manufactured in accordance with the standard EN 10216-1. Thus, by way of example, they argued that ‘the standard used for the production of the pipes sold to [that] customer dictated that they had to be delivered “free from excessive burrs”, [namely] deburred’, that those products were ‘all pipes are ordered and manufactured on the basis of a production standard (such as, [for example, the standards] DIN 1629 or EN 10216-1)’, that, ‘concerning the fact that the blanks underwent ultrasonic testing, [… it is necessary to point out that they were required] by [that] standard, according to which the blanks sold to [the European customer] were produced’, or, finally, that those products ‘did not undergo any [further] processing … other than the hot-forming manufacturing process described in [the subheading at issue of the CN], as also demonstrated by the wording of [that] standard’. It is also clear from the technical documents attached to the application, such as the ‘Quality certificate No 5291’, dated 18 November 2011, and also certain ‘purchase specifications’ such as ‘No 10-9301’ dated 15 July 2010, designating the same products as ‘hot-rolled seamless steel pipes’, that those products came under the same standard.

124    Next, as the Council argues, it is clear from the purchase order that the products sold by the TMK group to the European customer, were required, among the specifications listed, to conform to the standards UNI EN 10083-1 and DIN 1629 and had, in addition, to be ‘smooth at [the] ends’.

125    Finally, it is also clear from a number of other intercompany documents including invoices and purchase specifications, that the products sold by the TMK group to the European customer had been manufactured in accordance with the standard EN 10216-1, which, as was noted in those documents, replaced the standard DIN 1629. The applicants confirmed to the Court, in point 2 et seq. of their responses, dated 10 February 2015, to the questions posed by way of measures of organisation of the procedure, that the standard EN 10216-1, adopted by the European Committee for Standardisation (CEN), replaced the standard DIN 1629, issued by the Deutsches Institut für Normung e.V. (German Institute for Standardisation) (DIN) and corresponded, save for certain minor differences, to that latter standard. Moreover, in their view, as a general rule, the latter standard was not really used on the market, since the manufacturers and their customers choose to follow instead the more recent standard EN 10216-1.

126    The Council submits in particular that the fact that the tubes at issue were produced in accordance with the standard EN 10216-1 proved that they did not fall under CN subheading 7304 59 10, due to the contradictions with the requirements contained in the wording of that subheading.

127    In that regard, first, the Court must rule on the applicants’ claims, relating to the admissibility of certain specific arguments from the Council, relating, in particular, to the allowable finishing on the state of the surface of the products sold by the TMK group to the European customer, advanced in point 50 of the rejoinder. According to them, those arguments are inadmissible because they were submitted out of time and were not in any way relatable to the contested regulation, which did not refer to the quality of the surface of the tubes.

128    First, contrary to what the applicants claim, point 50 of the rejoinder is directly related to the Council’s contentions set out in points 28, 29, 35 and 36 of the defence. In the rejoinder, the Council refers to the inconsistency between point 8.4.1.2 of the standard EN 10216-1 and the explanatory notes drawn up by the Commission as regards the CN, stating that the latter point merely allows imperfections on the surface of the products and requires that those imperfections be identifiable or, in other words, that those imperfections should be of an exceptional nature. According to the Council, such requirements cannot therefore be compared with those contained in the Explanatory Note to CN codes 7304 39 10 and 7304 59 10. It must be noted that, in the defence, the Council assessed the consequences related to the fact that the products sold by the TMK group to the European customer followed that standard, which it had, moreover, attached to the defence and in respect of which it cited, as an example, point 8.4.1.1, specifically, for the purposes of demonstrating the contradictions that, according to it, that standard has with respect to the requirements set out in the wording of the CN subheading 7304 59 10 and in that explanatory note. Moreover, in paragraph 36 of its defence, the Council did not merely point to a specific part of that standard but, on the contrary, reference made was clearly, as a whole, to the ‘technical conditions established in [that standard]’.

129    Second, as regards whether the Council’s contentions, referred to in paragraph 128 above, are connected to the contested regulation, it should be noted that, in particular in recital 27 to the preamble to that regulation, reference is made to the various specifications, intercompany contracts, invoices issued by the related importers, and also the fact that it was intended that the products sold by the TMK group to the European customer had to meet certain standard requirements, including references to specific technical standards, and mention is also made to specifications aimed in particular at testing ‘for feasible defects, thickness control, ovalisation and straightness’, which would also point to further processing of those tubes, ‘which is not the case for so-called “blanks”’. In addition, it should be noted that multiple intercompany documents, to which reference is made in the contested regulation, refer, specifically, to the standard EN 10216-1. In that connection, it should be added that, as part of the conclusion, in recital 32 in the preamble to the contested regulation, concerning the refusal to define such products as falling within the ‘unworked’ product group within the meaning of CN subheadings 7304 39 10 and 7304 59 10, the Council refers to the fact that they had to meet extremely detailed requirements, and in particular ‘technical … requirements’. In those circumstances it cannot be considered that the regulation in question did not specifically refer to technical standards, in particular those mentioned in the purchase order and in the intercompany documents. However, although the Court must construe the Council’s explanations, advanced in particular in its replies to the Court’s questions, as seeking to demonstrate that those products had also been subjected to a ‘descaling’, in respect of that particular point, those contentions are out of time and thus inadmissible within the meaning of Article 48(1) of the Rules of Procedure of the General Court of 2 May 1991, in accordance with the applicants’ claims. In any event, those contentions must be rejected because they have not been demonstrated by the Council by means of conclusive evidence or by a clear reference to the technical evidence presented in the administrative procedure.

130    Next, as regards, the analysis itself of the requirements of the standard EN 10216‑1, used in the manufacture of products sold by the TMK group to the European customer, it is clear that, in fact, taken together, they are not reconcilable with the term ‘unworked’ under CN subheadings 7304 39 10 and 7304 59 10. In addition, those requirements are more extensive than those emerging from the Explanatory Note to CN codes 7304 39 10 and 7304 59 10.

131    First, it follows from point 8.4.1.1 of the standard EN 10216-1 that the tubes must be free from external and internal surface defects that can be detected by visual examination. Like the Council, the Court must find that that requirement contradicts the description provided in the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 which requires only that the surfaces be ‘rough’ and ‘descaled’ (see, also, paragraph 143 et seq. below).

132    Second, in a similar way, it should be noted that in point 8.4.1.2 to 8.4.1.4 of the standard EN 10216-1, reference is made to some technical actions which are permitted for the purposes of repairing imperfections. Those technical actions must be regarded, in essence, as constituting further processing of the products, which cannot be held to be compatible with them being designated as ‘unworked’ products or, in other words, as ‘blanks’.

133    In particular, the Court must note that the reference, at point 8.4.1.3 of the standard EN 10216-1, to the possibility of grinding or machining imperfections on the surface of the product, and, subsequently, the reference to the fact that areas of the product that had been accordingly repaired are, ultimately, to be blended smoothly into the contours of the tubes at issue go beyond merely having tubes with ‘deburred ends’, which would be compatible with the concept of the ‘unworked’ product within the meaning of CN subheadings 7304 39 10 and 7304 59 10 and which would also be compatible with the explanatory notes drawn up by the Commission as regards the CN.

134    In that regard, the Court must add that, contrary to the applicants’ claims, the action of grinding, in accordance with standard EN 10216-1, or, thereafter, the fact that the products have smoothed ends, as referred to in the purchase order for example, cannot, in itself, be regarded as equivalent or comparable to the action of deburring products, referred to in the Explanatory Note to CN codes 7304 39 10 and 7304 59 10. In particular, it cannot be accepted, as argued by the applicants at the hearing, that the concept of smoothed ends has no technical meaning and could be defined only by reference to such deburred ends. The Court must also note that the applicants have provided no supporting evidence for their claim that the term ‘smooth at ends’ was commonly used to indicate that the tubes were ‘deburred’.

135    As the Council argued in its replies of 10 February 2015 to the Court’s questions, asked by way of measure of organisation of procedure, it should be noted that although, according to the explanatory notes drawn up by the Commission as regards the CN, an unworked tube is presented with the ends roughly cut off and deburred, the latter term must be regarded as referring only to a not particularly advanced technical operation of removing the raised edge or small pieces of metal or the ‘burr’ after the cutting of the products. This may occur, in particular, as the Council submits, to avoid injuring the people handling the steel piece. The applicants also admitted at the hearing, that this could be the case for security reasons or for other practical reasons, without, none the less, in their view, constituting a finishing process on the tubes. Furthermore, the deburring action must be judged as a kind of ‘finishing that was tolerated’ for the purposes of the Explanatory Note to CN codes 7304 39 10 and 7304 59 10.

136    However, the concept of ‘smooth at ends’, used in the purchase order in order to characterise the products defined as ‘semi-finished’, also defined as products ‘hot finished’, as is evidenced from the limb of the phrase ‘top quality SS hot finished tubes for cylinders, in steel type 34CrMo4 subject to UNI EN 10083-1 and DIN 1629 “annealed coarse” and “smooth at ends”…’, is a concept which has to be taken as referring to the result of a more complex mechanical operation, which can consist, for example, of a sort of fitting by friction of a rotary grinder, that is to say, a method is aimed at either sharpening, polishing or smoothing, possibly by altering the initial shape by abrasion, which, in that purchase order, must be understood as referring to a lack of imperfections at the ends of the tubes.

137    The Court must also point out the context in which the reference to grinding in the standard EN 10216-1 is made, namely, in circumstances where the repaired areas are to be blended smoothly into the contours of the tubes at issue (see, in that regard, paragraph 133 above). Furthermore, point 8.4.1.4 of that standard provided that when the surface imperfections are not repaired in such a way that the minimum wall thickness is respected, these are then considered defects which results in the tubes at issue being regarded as not satisfying the relevant part of that standard. In that connection, it should be noted, as the Council did, that in the explanatory notes drawn up by the Commission as regards the CN relating to other headings or subheadings, mention is made of products, delivered in a ‘smooth’ state, that is to say, after grinding, where products have already undergone advanced processing (see, to that effect, the Explanatory Notes to CN codes 7304 31 20 and 7304 39 58, or, conversely, for the use of the term ‘unworked’, the Explanatory Note to CN code 7304 49 10).

138    In those circumstances, in the absence of conclusive evidence in line with that argued by the applicants, according to which it was the European customer’s intention, by putting on the purchase order the term ‘smooth at ends’, to refer only to deburring, the Court must give that expression an autonomous meaning. In addition, it should be noted that that customer could, as the case may be, lay down requirements going beyond even that provided for by technical standards such as EN 10216-1 or DIN 1629, where it matched its needs in the connection with a particular technical process to be used to transform subsequently the products sold by the TMK group to that customer. Accordingly, its requirements could cover ‘grinding’ not only as regards the walls, but also the ends of the tubes, in particular for the purposes of ensuring that production machinery subsequently operates better, or even that the final product is of optimal quality. The Court must hold that it is the customer at issue which is best placed to know what the most appropriate finishing is for the products which were subsequently transformed.

139    Moreover, the applicants themselves had pointed out, in the reply, that ‘nothing prevents a producer from manufacturing its own products based on criteria other than those listed in the standards adopted by such [standardisation organisations]’. By way of example, they had highlighted the fact that a customer could order a specific product by simply listing the required features, without referring to any technical standard. Likewise, the tubes could, in their view, be produced on the basis of a certain technical standard, but with modifications upon request of the customer or producer.

140    It should be added that it is apparent from point 8.4.1.2 of the standard EN 10216‑1, that, normally, the finish and surface conditions should be such that any surface imperfections requiring repair could be identified. This is an additional indicium supporting the contention that the products manufactured to that standard had characteristics that were not those of an ‘unworked’ product, falling within an initial phase of production, but those of a product situated at a more advanced stage, requiring the identification of possible imperfections, in particular for the purposes of repairing them.

141    Furthermore, it should be noted that various finishes, provided for by the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 as finishes which are still acceptable for products considered ‘unworked’ (see paragraph 43 above) were of a different scale compared to those analysed in paragraphs 130 to 140 above.

142    First, aside from the requirement related to the intended use of the products, that they should be intended for transformation into ‘tubes of other shapes and wall thickness with more reduced dimensional tolerances’, which is not the subject, at this stage, of the Court’s analysis, covering only the first part set out in paragraph 49 above, it was also provided for in the Explanatory Note to CN codes 7304 39 10 and 7304 59 10 that the goods must be ‘presented with the ends roughly cut off and deburred but are otherwise unfinished’. As was stated in paragraphs 70 and 134 to 136 above, it appears the products could be transformed only as an exception, and then only by completely rudimentary technical actions, namely, cutting them and erasing the burrs.

143    Second, as regards the reference to the fact that the ‘[the] exterior and interior surfaces are rough and not descaled [and] are not oiled, zinc-coated or painted’, it merely refers to the fact that the products had certain characteristics arising directly from their manufacturing process.

144    In that regard, in particular, as the Council submitted in point 26 of its replies to the Court’s questions, without being contradicted by the applicants, the ‘scale’ is a powder, which results from the oxidation occurring during the cooling of the tube. Moreover, contrary to what seems to follow from the Council’s subsequent responses in which it goes on to explain the ‘descaling’ action consisting, according to it, of the rough removal of those defects through washing with pressured water or air under pressure, in reality, the explanatory notes drawn up by the Commission as regards the CN had not provided for proceeding in this manner. On the contrary, apart from it being expressly accepted in those notes that the surfaces of the tubes are to be scaled, it is also implied that, therefore, they were rough. As stated by the applicants at the hearing, descaling, oiling, zinc-coating or painting the surfaces of the tubes would make sense only for finished products and not for tubes that have yet to go through additional rolling operations. Thus, it should be pointed out that the explicit refusal to allow the oiling, painting or zinc-coating of those surfaces, as follows from the explanatory notes drawn up by the Commission as regards the CN, strengthens the conclusion that any further action carried out on the products, within the initial production stage, means that they cannot be classified under the CN subheadings 7304 39 10 or 7304 59 10.

145    Moreover, without it being necessary to analyse that factor alone as being decisive to differentiate the ‘unworked’ products from ‘semi-finished’ ones (see paragraph 122 above), it must also be recalled that, in the present case, it appears from the purchase order that it provided for a more advanced testing of the products sold by the TMK group to the European customer than a mere visual inspection, namely an ultrasonic testing. That factor is an additional concordant indicium supporting an interpretation that the products had to meet further technical requirements. Moreover, it is clear that the same ultrasonic testing was also provided for at point 11.7 of the standard EN 10216-1, entitled ‘Non-Destructive Testing’, which refers to certain other technical standards. Accordingly, even under that standard, that factor is in addition to the visual examination alone, as is clear from point 11.6 of that standard.

146    Next, it should be noted that in accordance with points 20 and 21 of the Council’s replies, dated 10 February 2015, to the Court’s questions, asked by way of measures of organisation of procedure, such ultrasonic testing consisted of ‘a family of non-destructive testing techniques based in the propagation of ultrasonic waves in the object or material tested’. According to the Council’s explanations, which have not been contradicted, on technical grounds, by the applicants, but only on their relevance to the present case, ultrasonic testing, consisting of very short ultrasonic pulse-waves, enabled the detection, inter alia, of internal flaws, the characterisation of materials, or even in the case of tubes, the measurement of the thickness of their walls.

147    Moreover, it should be noted that, this description of an ultrasonic testing is not called into question by how it is described in the purchase order. It is clear from that order that the ultrasonic testing is performed on the interior and exterior surfaces of the tubes, that it involves an echo-reflection system or resonance method, and that its purpose is to detect defects in the tube walls, whether longitudinal or transversal, and also to measure the thickness of those walls. It is, moreover, explicitly mentioned in that order that the thickness of the tube walls is to be measured at 100%. Finally, it should be noted that it follows from that purchase order that, after identifying possible defects, they must be, if possible, eliminated and, afterwards, the tubes must be tested again both for defects and for wall thickness. In those circumstances, such an ultrasonic testing merely ensures greater accuracy of the analysis of the quality of products sold by the TMK group to the European customer for the purposes of detecting possible defects, if any, that might not be detected by a simple visual inspection.

148    Consequently, while it is conceivable that such advanced ultrasonic testing can, in some cases, theoretically be carried out even on ‘unworked’ products, the fact remains that, in the present case, this element strengthens the conclusion that, as a result of the technical standard which was followed, which allowed the defects to be repaired by grinding and machining, the products sold by the TMK group to the European customer were products worked on earlier than a mere ‘blank’ would have been, and in particular, fulfil requirements going beyond those with only ends which are roughly cut and deburred. The same conclusion applies, mutatis mutandis, to products for which ultrasonic testing for possible longitudinal defects was replaced by a hydraulic testing, since that must also be considered to be more precise than a simple visual inspection.

149    This is further borne out by the fact that, as has been stated in paragraph 120 above, even in documents from the applicants some of the products sold by the TMK group to the European customer were classified under CN subheadings 7304 59 92 and 7304 59 93 during the period before the review investigation period or, in respect of some of those documents, during the investigation period. This is apparent, in particular, from the various statements of the manufacturer, the specifications, invoices or transport documents, attached by the Council to the defence. While it is also true that some other intercompany documents, submitted by the applicants, classified, on the contrary, the tubes at issue under CN subheading 7304 59 10, the fact remains that such a contradiction in the documentation used by the applicants themselves, cannot be interpreted in their favour. As has been held at paragraph 120 above, the Court cannot consider adequate, in that regard, the explanation given by the applicants at the hearing, that the use of other CN codes than that referred to in the application could be linked to the fact that, in the Russian tariff nomenclature, the codes were conceived differently.

150    Given all of the above, and without it being necessary to assess the other technical and commercial elements put forward by the Council in the contested regulation or the applicants’ claims, as to the alleged inadmissibility of Annex B.6 to the defence, which contains a limited version of a submission of the Union industry relating to certain technical matters, upon which the Court did not base its findings set out in paragraphs 103 to 149 above, the Court must hold that the products sold by the TMK group to the European customer cannot be regarded as consistent with the concept of unworked products.

151    Finally, the Court must reject certain additional claims by the applicants, to the extent that they cannot alter the conclusions drawn in paragraph 150 above.

152    First, as regards the applicants’ claims to the effect that all the ‘blanks’ had not been heat treated, it must be held that, even assuming this to be proven for some of the products sold by the TMK group to the European customer, that fact would not by itself alone be sufficient to refute the finding that the other technical elements analysed demonstrated that there had been ‘further processing’, such that the products had to be regarded, at the very least, as ‘semi-finished’.

153    Furthermore, the claims referred to in paragraph 152 above are inconsistent with the claims that products sold by the TMK group to the European customer ‘did not undergo any [further] processing … other than the hot-forming manufacturing process described in [the subheading at issue of the CN]’ (see paragraph 123 above). Similarly, as is clear from a document attached to the application and written by the applicants’ adviser, Mr D.G., the applicants had claimed during the verification visit on 19 March 2012, in the context of the explanations given as regards the ‘steel grade’ used, that such grade was the only one which allows, at the same time, three specific technical operations, including heat treatment. It is also stated, in a general reference at the beginning of that document, that a part of the production machines of the company visited, specifically allows the heat treatment to be carried out. It is in those circumstances that the Court cannot consider as decisive, the reference, made by the applicants, in point 6 of their replies to the Court’s questions, to the fact that, according to point 7.3.2 of the standard EN 10216-1, pipes produced according to that standard ‘[could] simply be “hot formed” as well as “hot formed + cold finished” ..., [namely] they can be both unfinished (or “unworked”) and/or finished’ or the fact that, compared to certain documents, the Commission considered that they did not mention ‘annealing’. In addition, it should be recalled, in that regard, that the purchase order relating to the ‘SA/BB/0, Rev.4’ specification, to which other intercompany documents made reference, referred, in addition to ‘annealed coarse’, in particular, to ‘smooth at ends’ and the advanced testing of the products, inter alia, by ‘ultrasonic’ testing, that is to say to later stages in the manufacturing process.

154    Second, regarding the applicants’ claim that the European customer referred, in certain presentations, to the products which it used in the industrial process, by the Italian term ‘sbozzato’, suffice it to note that the reference to a specific term, during a presentation, does not in any way prevail over an analysis of a set of technical elements, as is clear, in particular, from the standards used in order to manufacture the products sold by the TMK group to that customer and from the purchase order. Moreover, even assuming that that Italian term can be judged, in that language, as the equivalent of the French term ‘ébauche’ (blank), which would correspond to how that term is used in the Italian version of the explanatory notes drawn up by the Commission as regards the CN, it is conceivable that, at least in some cases, a different meaning can be conferred on it, namely, as referring to a ‘semi-finished’ product. On that last point, it should be added that, when speaking about ‘unworked’ products, that Italian version uses the term ‘greggi’. However, it is not apparent from that customer’s presentation that it would have also referred to products by that latter term. Finally, like the Council, it should be pointed out that, in any event, the European customer did not use the word ‘blank’ in either that purchase order or the relevant specifications, but, in fact, referred to ‘semi-finished’ products.

155    Third, as has been stated in paragraph 154 above, the conclusions based on the analysis of a set of technical and commercial information available cannot be invalidated by certain specific factual elements, which cover only part — which moreover is not precisely defined — of products sold by the TMK group to the European customer or relating to non-definitive findings of the Commission, allegedly issued, inter alia, during the on-site verification visit of 19 March 2012, as is clear from the statement, which appears in the minutes prepared by Mr D.G., the applicants’ advisor, an unsigned version of which was attached to the application; according to that statement it appears from a copy of the production report for that customer that the tubes meet the criteria set by the Explanatory Note to CN codes 7304 39 10 and 7304 59 10, save that they were not ‘deburred’ which, however, would reinforce the notion that only ‘unworked’ products were involved.

156    Fourth, as regards the applicants’ claims relating to the alleged difference between the Commission’s proposal for a regulation to the Council and the disclosure, first, the Council correctly recalls that, according to settled case-law, it is not necessary for the reasoning to go into all the relevant facts and points of law (see, to that effect, judgment of 9 January 2003 in Petrotub and Republica v Council, C‑76/00 P, ECR, EU:C:2003:4, paragraph 81).

157    Likewise, it must be pointed out that the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if they set out the facts and the legal considerations having decisive importance in the context of the decision (see, to that effect, judgment of 15 June 2005 in Corsica Ferries France v Commission, T‑349/03, ECR, EU:T:2005:221, paragraph 64). Accordingly, they cannot be criticised for not replying specifically to each argument relied on by the applicants or for not defining their position on matters which they did not deem relevant to the individual case (see, to that effect, judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 64, and 14 July 2011 Arkema France v Commission, T‑189/06, ECR, EU:T:2011:377, paragraph 96).

158    Next, taking into account also the case-law cited in paragraph 36 above, it should be added that, during the administrative procedure, the Commission had mentioned, both in the disclosure and in its letters to the applicants, for example in that dated 14 November 2012, the main aspects of the case which led it to consider that the products sold by the TMK group to the European customer were not ‘blanks’, including the reference to the purchase order, and the characteristics required by that order, such as ‘annealed coarse’ and ‘smooth at ends’ or references to the use of the standard EN 10216-1. The Commission also pointed to the fact that the specifications, to which that order refers, did not cover ‘blanks’ but covered rather the tubes used to produce gas cylinders. Moreover, the Commission had recalled the various technical specifications, including the references to other technical standards used, required in that purchase order, and had explicitly pointed out that the condition that the products be ‘unworked’ had not been fulfilled.

159    Moreover, where the institutions have provided more detailed reactions — in which, overall, they set out, during the administrative procedure, the reasons why they considered it crucial to refuse to classify those products under CN subheadings 7304 39 10 or 7304 59 10 — this is as a result of the applicants’ answers, for example, in the context of the comments, dated 8 November 2012, on the Commission document entitled ‘Final Disclosure’, highlighting, furthermore, the application of the standard EN 10216-1 in the manufacture of products sold by the TMK group to the European customer. In addition to the fact that those products were not ‘unworked’, according to those reasons, it had not been shown that the intended use of those products was consistent with what was provided for in the wording of those subheadings.

160    Finally, to the extent that the applicants claim that the Council breached the principle of sound administration and the rights of defence, in particular as regards the assessment of the intended use of the products sold by the TMK group to the European customer (see paragraph 101 above), suffice it to note — without it being necessary to rule on the admissibility of those claims, which the Council considered to be out of time and which made clear that they were mentioned only in the reply — that, since the Court takes no position on whether the intended use of such products can, also, be an element for the purposes of refusing their classification under CN subheadings 7304 39 10 or 7304 59 10, but finds that the Council did not err by considering that those products do not fulfil the requirement of being ‘unworked’ products, there is no need to assess further the merits of those claims relating to the intended use of those products or those claims relating to the consideration by the Commission or by the Council of all documents that the applicants had made in this regard, or finally, their claims that the alleged ‘rejection, without an adequate statement of reason’, of information presented in this regard during the administrative proceedings. This applies also, mutatis mutandis, to their question concerning the explicit reference to ‘thickness control, ovalisation and straightness’ during the administrative procedure.

161    The second plea should, accordingly, also be dismissed.

 The third plea, alleging, that, in the present case, the mere fact that the products sold by the TMK group to the European customer were actually used in the manufacture of tubes and pipes with other cross-sections and wall thickness proved that those products fell under CN subheading 7304 59 10

162    The applicants claim that CN subheading 7304 59 10 covers certain products based on their intended use. According to the applicants, the intended use may constitute an objective criterion in relation to tariff classification if it is inherent in the product, that it to say it may be assessed on the basis of the product’s objective characteristics and properties. The Explanatory Note to CN 7304 39 10 and 7304 59 10 establishes a legal presumption, based on an ex ante assessment, that a pipe meeting certain objective requirements is destined to be transformed into a pipe with different cross-section and wall thickness.

163    The applicants claim that, in the present case, it has been demonstrated that the European customer had used the pipes at issue, which fulfilled the characteristics required by the wording of CN subheading 7304 59 10 and the Explanatory Note to CN 7304 39 10 and 7304 59 10, in the production of other pipes with different cross-section and wall thickness with more reduced tolerances. The Council thus acted in a contradictory manner by acknowledging that those pipes were used in the production of other pipes with different cross-section and wall thickness, whilst objecting that, in the light of their structural characteristics, they are not suitable to be destined for that purpose.

164    The Council, supported by the interveners, disputes the applicants’ claims. It argues, in essence, that since the products sold by the TMK group to the European customer were not ‘unworked’, they cannot fall under CN subheading 7304 59 10, irrespective of their use.

165    The Court recalls that, as stated in paragraph 90 above, in the present case, it is enough that one of the two pillars, upon which the contested regulation was founded in order to serve as a basis for the conclusion that the products sold by the TMK group to the European customer fell within the product scope, which were covered by the interim review, is shown to be well founded for the applicants’ claims, alleging that that regulation is unlawful, to be rejected. As is clear from the analysis of the first two pleas, that is indeed the case here, since the Council did not err in finding that the products were not ‘unworked’. In addition, it has also been found in paragraphs 105 and 106 above, that the intended use of those products could not, by itself alone, constitute a decisive criterion for classifying the products sold by the TMK group to the European customer under CN subheadings 7304 39 10 or 7304 59 10.

166    In those circumstances, the third plea must also be dismissed.

167    It follows from all the foregoing that the application must be dismissed in its entirety. Since none of the three pleas succeeded, the Court must also reject the second head of the claim of the applicants seeking ‘as a consequence of the partial annulment requested’ to ‘correct the rate of the anti-dumping duty applicable [to them].

 Costs

168    Under Article 134(1) of the Rules of Procedure of the General Court, 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 applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Council and the interveners other than the Commission, in accordance with the form of order sought by the Council and those interveners.

169    Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore be ordered to bear its own costs in the present case.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Dismisses the application in its entirety;

2.      Orders Volžskij trubnyi zavod OAO (VTZ OAO), Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), Sinarskij trubnyj zavod OAO (SinTZ OAO) and Severskij trubnyj zavod OAO (STZ OAO) to bear their own costs and to pay those of the Council of the European Union and those of ArcelorMittal Tubular Products Ostrava a.s., Benteler Steel/Tube GmbH, Dalmine SpA, Productos Tubulares, SA, Rohrwerk Maxhütte GmbH, ArcelorMittal Tubular Products Roman SA, Silcotub SA, Tubos Reunidos Industrial, SL, V & M Deutschland GmbH, V & M France, Vallourec Mannesmann Oil & Gas France, and voestalpine Tubular GmbH & Co. KG;

3.      Orders the European Commission to bear its own costs.

Delivered in open court in Luxembourg on 16 December 2015.

[Signatures]

* Language of the case: English.

© European Union
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