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

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 3 October 2018 (1)

Case C‑465/16 P

Council of the European Union

v

Growth Energy,

Renewable Fuels Association

(Appeal — Dumping — Imports of bioethanol originating in the United States of America — Definitive anti-dumping duty — Regulation (EC) No 1225/2009 — Standing to bring proceedings of associations representing non-exporting producers — Direct concern — Article 9(5) — Impossibility of imposing an anti-dumping duty on each supplier — Imposition of an anti-dumping duty at the level of the supplying country — Articles 6.10 and 9.2 of the World Trade Organisation (WTO) Anti-Dumping Agreement — Consistent interpretation)

I.      Introduction

1.        In the present case, the Council of the European Union, supported by the European Commission, asks the Court to set aside the judgment of the General Court of the European Union of 9 June 2016, Growth Energy and Renewable Fuels Association v Council (T‑276/13, EU:T:2016:340) by which the General Court annulled Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America, (2) in so far as it concerns four producers of bioethanol represented by the associations Growth Energy and Renewable Fuels Association.

2.        For their part, Growth Energy (‘GE’) and Renewable Fuels Association (‘RFA’) lodged a cross-appeal against the findings of the General Court establishing that their action was partially inadmissible.

3.        As I shall explain in my analysis of the first part of the first ground of appeal in the main appeal, I consider that the General Court was wrong to find that the action brought at first instance by GE and RFA was admissible, in so far as it was lodged on behalf of four sampled US producers of bioethanol. Accordingly, the judgment under appeal should, in my view, be set aside and the action at first instance dismissed in that regard.

4.        However, that solution does not exempt the Court from examining the cross-appeal. In that regard, as I shall show, I consider that the General Court erred in finding that GE and RFA did not have standing to bring proceedings on behalf of two US bioethanol traders/blenders, namely the companies Murex and CHS. The judgment under appeal should also be set aside in that respect.

5.        Finally, I wish to state clearly that if the Court does not agree with my analysis and therefore considers that the action at first instance is fully admissible in its entirety, it will be necessary to rule on the substantive grounds of appeal put forward by the Council in support of the main appeal, alleging misinterpretation and misapplication of Article 9(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (3) (‘the basic regulation’), read in the light of the provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (4) (‘the WTO Anti-Dumping Agreement’). Although, in that regard, the judgment under appeal is somewhat perplexing as regards the relationship between the ‘intention of the EU legislature to implement a particular obligation assumed in the context’ of the WTO Anti-Dumping Agreement and the principle that the basic regulation should be ‘interpreted in a manner consistent with’ that agreement, I nevertheless consider that, in essence, the General Court correctly interpreted Article 9(5) of the basic regulation.

II.    The background to the dispute and the judgment of the General Court

6.        The background to the dispute is set out by the General Court in paragraphs 1 to 18 of the judgment under appeal. Only the elements essential to an understanding of the arguments put forward by the parties in the appeal brought by the Council and the cross-appeal brought by GE and RFA will be set out below.

7.        Following a complaint, the Commission published, on 25 November 2011, a notice of initiation of an anti-dumping proceeding concerning imports of bioethanol originating in the United States of America, (5) in which it stated its intention to use sampling to select the exporting producers in the United States of America to be investigated.

8.        On 16 January 2012, the Commission notified five member companies of GE and RFA, namely Marquis Energy LLC, (6) Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC, that they had been selected to be part of the sample of exporting producers.

9.        On 24 August 2012, the Commission sent GE and RFA the provisional disclosure document stating its intention to continue the investigation, without the adoption of provisional measures, and to extend the investigation to traders/blenders. That document stated that it was not possible at that stage to assess whether the exports of bioethanol originating in the United States had been made at dumped prices, on the ground that the sampled producers did not make a distinction between domestic sales and sales for export, and all their sales were to unrelated traders/blenders established in the United States, which then blended the bioethanol with gasoline and sold it on.

10.      On 6 December 2012, the Commission sent GE and RFA the definitive disclosure document in which it examined, on the basis of the data from unrelated traders/blenders, the existence of dumping causing injury to the European Union industry and envisaged imposing definitive measures at the rate of 9.6% countrywide, for a period of three years.

11.      On 18 February 2013, pursuant to the basic regulation, the Council adopted the regulation at issue, which imposed an anti-dumping duty on bioethanol, referred to as ‘fuel ethanol’, at a rate of 9.5% countrywide for a period of five years.

12.      The General Court also pointed out, first, that, in recitals 12 to 16 of the regulation at issue, the Council stated that the investigation had shown that none of the sampled producers exported bioethanol to the European Union market and that it was not the US producers of bioethanol but the traders/blenders who were the exporters of the product concerned to the European Union, so that, in order to complete the dumping investigation, the Council had relied on the data of the two traders/blenders that had agreed to cooperate (paragraph 16 of the judgment under appeal). The General Court also noted that the Council explained, in recitals 62 to 64 of the regulation at issue, that it was appropriate to establish a countrywide dumping margin, since the structure of the bioethanol industry and the way in which the product concerned was produced and sold on the US market and exported to the European Union made it impracticable to establish individual dumping margins for US producers (paragraph 17 of the judgment under appeal).

13.      The General Court then ruled on the admissibility of the action brought by GE and RFA as trade associations. In essence, the General Court identified three situations in which an action for annulment brought by an association entrusted with protecting the collective interests of its members is admissible, namely, first, where this is expressly recognised to be the case in a statutory provision, second, where the undertakings which the association represents or some of those undertakings themselves have standing to bring proceedings or, third, where the association can prove an interest of its own (paragraph 45 of the judgment under appeal).

14.      Having found that GE and RFA had identified no specific legal provision permitting them to bring proceedings, the General Court, turning next to the second situation, examined whether GE and RFA had standing to bring proceedings on the basis of their members themselves having standing to bring proceedings in their own right.

15.      At the end of the reasoning set out in paragraphs 51 to 62 of the judgment under appeal, the General Court essentially found, first, that the action for annulment brought by GE and RFA was inadmissible on the ground that they represented Marquis Energy, since that undertaking had brought its own action for annulment (paragraph 51 of the judgment under appeal), (7) and, secondly, that the associations could not properly represent Murex and CHS, two exporting traders/blenders of bioethanol, on the ground that those companies were, respectively, an ‘associate’ member of GE and an ‘associate’ member of the RFA, without voting rights and, therefore, without the possibility of ensuring that their interests prevail when those interests are being represented by the association concerned (see paragraphs 53 to 55 of the judgment under appeal). Moreover, the General Court also ruled out the possibility of GE and RFA having standing to bring proceedings on behalf of all their members, other than the four US producers sampled in the regulation at issue. The General Court held that it had not been shown that those members were directly concerned by the anti-dumping duty imposed by that regulation (see paragraphs 151 to 153 of the judgment under appeal).

16.      However, at the end of the reasoning set out in paragraphs 90 to 149 of the judgment under appeal, the General Court concluded, in paragraph 150 of that judgment, that, under the terms of the second situation referred to in the fourth paragraph of Article 263 TFEU, GE and RFA did have standing to bring the action at first instance to the extent that it sought the annulment of the regulation at issue in so far as it concerns the four sampled US producers. The General Court found, first, at the end of the analysis set out in paragraphs 92 to 117 of the judgment under appeal, that the four sampled producers were directly concerned by the regulation at issue. It also found, secondly, that those producers were individually concerned by that regulation (see paragraphs 123 to 145 of the judgment under appeal).

17.      As regards the third situation, referred to in point 13 of this Opinion, whereby an association has standing to bring proceedings where it can prove it has an interest in its own right, the General Court, ruling on that question in paragraphs 77 to 86 of the judgment under appeal, held that GE and RFA themselves have standing to bring proceedings only in so far as their action was based, in the 10th plea in law, on protecting the procedural safeguards granted to them by the relevant provisions of the basic regulation (see paragraphs 85, 87 and 162, second indent, of the judgment under appeal).

18.      In summary, the General Court therefore held that the action for annulment brought by GE and RFA was admissible only in so far as it was made (a) on behalf of the four sampled US producers, which were directly and individually concerned by the regulation at issue, and (b) in their own right, within the limits of the 10th plea, alleging infringement of their own procedural rights in the anti-dumping proceeding.

19.      As to the substance, although the General Court rejected the 10th plea put forward by GE and RFA (see paragraphs 250 to 343 of the judgment under appeal), it nonetheless upheld the second part of the first plea put forward by GE and RFA on behalf of the four sampled producers and annulled the regulation at issue, without ruling on the other parts of that plea or on the other eight pleas put forward in support of their action (see paragraph 246 of the judgment under appeal).

20.      In essence, the General Court held that the Council was wrong to consider that, under Article 9(5) of the basic regulation, it was entitled to impose a countrywide dumping margin and that it was therefore not obliged to calculate individual dumping margins for each US producer included in the sample in the regulation at issue.

21.      In reaching that conclusion, the General Court noted, in the first place, that, by Article 9(5) of the basic regulation, the legislature of the European Union had intended to implement a particular obligation assumed in the context of the WTO, contained, in this instance, in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement; Article 9(5) of the basic regulation therefore had to be interpreted in a manner that is consistent with those articles (see paragraphs 180 and 184 of the judgment under appeal).

22.      In the second place, the General Court considered that the Council was, under Article 9(5) of the basic regulation, required in principle to calculate an individual dumping margin and to impose individual anti-dumping duties for each of the four sampled producers, since, by retaining them as members of the sample of US producers and exporters, the institutions had recognised that they were ‘suppliers’ of the dumped product for the purposes of Article 9(5) of the basic regulation (see paragraphs 194 and 201 of the judgment under appeal).

23.      In the third place, and lastly, the General Court stated that, although there is, under Article 9(5) of the basic regulation, an exception to the requirement to provide an individual calculation of the amount of duty where ‘that is impracticable’, which then makes it possible simply to name the supplying country, that is to say to impose a countrywide anti-dumping duty, the word ‘impracticable’ must be interpreted in a manner that is consistent with the analogous term used in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement (see, to that effect, paragraphs 228 and 232 of the judgment under appeal). In the light of those provisions, the General Court held that Article 9(5) of the basic regulation does not allow for any exception to the obligation to impose an individual anti-dumping duty on a sampled producer which cooperated in the investigation where the institutions consider that they are not in a position to establish an individual export price for that producer (see the last sentence of paragraph 232 of the judgment under appeal). The General Court therefore concluded that, in the light of the explanations provided by the institutions, the Council was wrong to consider that the imposition of individual anti-dumping duties for the members of the sample of US exporters was ‘impracticable’ within the meaning of Article 9(5) of the basic regulation (paragraph 241 of the judgment under appeal), and the fact that the institutions considered that there were difficulties in tracing individual purchases or in comparing the normal values with the corresponding export prices for sampled producers was not sufficient to justify the use of that exception (see, to that effect, paragraphs 242 to 244 of the judgment under appeal). The General Court therefore annulled the regulation at issue on the ground of infringement of Article 9(5) of the basic regulation and in so far as it concerned the four sampled US producers represented by GE and RFA.

III. Forms of order sought

A.      Forms of order sought in the main appeal

24.      In the main appeal, the Council claims that the Court should:

–        set aside the judgment under appeal;

–        dismiss the action brought at first instance by GE and RFA;

–        order GE and RFA to pay the costs incurred by the Council in the proceedings at first instance and on appeal.

25.      In the alternative, the Council claims that the Court should:

–        refer the case back to the General Court for reconsideration;

–        reserve the costs of the proceedings at first instance and on appeal.

26.      The Commission claims that the Court should:

–        set aside the judgment under appeal;

–        declare the action at first instance inadmissible;

–        order GE and RFA to pay the costs of the proceedings before the General Court and before the Court of Justice.

27.      In the alternative, the Commission claims that the Court should:

–        set aside the judgment under appeal;

–        dismiss the second part of the first plea in law put forward by GE and RFA at first instance and, as regards the other parts of the first plea and the other pleas, refer the case back to the General Court for reconsideration;

–        reserve the costs of both sets of proceedings.

28.      GE and RFA contend that the Court should:

–        dismiss the appeal in its entirety and confirm point 1 of the operative part of the judgment under appeal;

–        order the Council to pay the costs incurred by them in the proceedings at first instance and in the appeal proceedings.

B.      Forms of order sought in the cross-appeal

29.      In their cross-appeal, GE and RFA claim that the Court should:

–        set aside point 2 of the operative part of the judgment under appeal, in so far as it dismisses (as to the remainder) their action for annulment;

–        annul the regulation at issue in its entirety, in so far as it affects them and all their members;

–        order the Council, first, to pay the costs incurred by them at first instance before the General Court and in the main appeal and the cross-appeal before the Court of Justice and, secondly, bear its own costs.

30.      In the alternative, in the event that the Court considers that the state of the proceedings does not permit judgment to be given, GE and RFA claim that the Court should:

–        refer the case back to the General Court for a decision on the first nine pleas in law seeking annulment which they put forward in their own right and on all the pleas in law seeking annulment which they put forward on behalf of their members other than the four sampled US producers;

–        order the Council to pay the costs incurred by them to date in the proceedings at first instance and in the main appeal and cross-appeal, and reserve the costs relating to the remainder the proceedings.

31.      The Council contends that the Court should:

–        dismiss the cross-appeal in its entirety and confirm point 2 of the operative part of the judgment under appeal;

–        order GE and RFA to pay the costs incurred by the Council both at first instance before the General Court and in the main appeal and the cross-appeal, and to bear their own costs.

32.      The Commission contends that the Court should:

–        dismiss the cross-appeal as inadmissible and, in the alternative, as unfounded;

–        order GE and RFA to pay the costs.

IV.    Analysis

33.      As I have already stated in my introductory remarks, the main appeal and the cross-appeal brought before the Court raise a number of difficulties as regards both admissibility and substance. In that regard, it is rather surprising that, in view of the complexity of the issues raised and the positions taken by the General Court, the General Court did not decide to rule on these cases sitting in extended composition.

34.      That said, as the reasoning set out in connection with the examination of the main appeal will demonstrate, I take the view that the arguments put forward by the Council and the Commission in support of the first ground of appeal, alleging, in essence, misinterpretation of the fourth paragraph of Article 263 TFEU and, consequently, the inadmissibility of the action brought by GE and RFA at first instance, are so serious that it is appropriate, on that basis, to set aside the judgment under appeal.

35.      The Council, supported by the Commission, puts forward three grounds in support of the main appeal. The first, as already stated, concerns the admissibility of the action at first instance brought by GE and RFA on behalf of the four sampled US producers, whereas the two other grounds concern the substance of the dispute, that is to say the General Court’s interpretation and application of Article 9(5) of the basic regulation. However, the Commission adds in its response that the General Court should have declared the action at first instance inadmissible on the ground that GE and RFA, in the light of their objects, as defined in their articles of association, could not validly represent their members.

36.      In their cross-appeal, GE and RFA set out two procedural grounds of appeal, criticising the General Court for having, on the one hand, limited the scope of their standing to bring proceedings in their own name to the protection of the procedural safeguards granted by the basic regulation and, on the other hand, found that GE and RFA do not have standing to bring proceedings on behalf of their members other than the four sampled US producers.

37.      The issues raised by these appeals will be examined in the following order. I shall first analyse the Commission’s complaint that the General Court erred in not finding that GE and RFA lacked representative capacity, thus affecting the admissibility of their action at first instance (Section A). Secondly, I shall examine the first part of the Council’s first ground in support of the main appeal, alleging misinterpretation of the fourth paragraph of Article 263 TFEU and infringement of the obligation to state reasons (Section B), which, in my view, must be upheld. Thirdly, after briefly dismissing the ground of appeal raised by the Commission as to the inadmissibility of the cross-appeal of GE and RFA, I shall consider the two grounds of appeal put forward in that connection (Section C), one of the parts of which must, in my view, also be upheld. Fourthly, in the alternative and finally, the two grounds of the main appeal alleging misinterpretation and misapplication of Article 9(5) of the basic regulation (Sections D and E) will be examined, in turn.

A.      The Commission’s objection as to the admissibility of the action at first instance brought by GE and RFA, alleging a failure on the part of the General Court to find that those associations lacked representative capacity or standing to bring proceedings

1.      Arguments of the parties

38.      The Commission submits that the action at first instance should have been declared inadmissible, on the ground that the articles of association of GE and RFA do not allow them to protect the commercial interests of a given sector and/or their members, a ground for inadmissibility that the Court is, moreover, required to examine of its own motion.

39.      In that regard, the Commission explains that, in describing GE and RFA as ‘associations representing US bioethanol producers’ (paragraph 1 of the judgment under appeal) and then as ‘associations representing the interests of the US bioethanol industry’ (paragraph 42 of the judgment under appeal), the General Court distorted the facts. The two associations, as non-profit associations incorporated under the District of Columbia Non-Profit Corporation Act, cannot engage in activities for the protection of the commercial interests of a given sector and/or their members.

40.      In the Commission’s view, such activities are also incompatible with GE’s specific purpose, which is to ‘promote ethanol as a clean and sustainable source of renewable energy’, and with the objects of RFA as an association, which are to ‘promote and support the development of a viable and competitive national renewable fuels industry’, to the exclusion of the protection of the commercial interests of its members in the territory of third entities or countries. Moreover, GE and RFA have in no way sought to argue that their action at first instance falls within the scope of their objects, as defined in their articles of association, the General Court having found, on the contrary, in paragraph 75 of the judgment under appeal, that the purpose of their legal action was to ‘protect the US ethanol industry’.

41.      GE and RFA contend that the Commission, as ‘another party’ to the appeal proceedings, cannot validly claim, at this stage, distortion of the evidence, a claim not made by the Council in that respect. Those associations add that the fact that they are non-profit-making in no way implies that they cannot protect the commercial interests of a given sector or their members. As regards RFA, they state that the Commission arbitrarily concluded that the objects of that association were limited to national considerations and did not extend to the protection of the commercial interests of its members in third countries. The promotion of a domestic industry is also linked to its growth, including export growth, which does fall within the scope of RFA’s mandate.

2.      Assessment

42.      According to Article 174 of the Court’s Rules of Procedure, a response must seek to have the appeal allowed or dismissed, in whole or in part. Moreover, pursuant to Articles 172 and 176 of those rules, parties authorised to lodge a response may submit, by a document separate from the response, a cross-appeal, which, according to Article 178(1) and (3), second sentence, of the rules must seek to have set aside, in whole or in part, the judgment under appeal on the basis of pleas in law and arguments separate from those relied on in the response.

43.      As the Court has previously held, it therefore follows from those provisions, read together, that the reply may not seek the annulment of the judgment under appeal on the basis of grounds that are distinct from and independent of those raised in the appeal, since such grounds may only be raised as part of a cross-appeal. (8)

44.      In its response, the Commission criticises the General Court for having held, in paragraph 45 of the judgment under appeal, that GE and RFA had standing to bring proceedings on behalf of US producers of bioethanol in clear breach of the articles of association of those two associations.

45.      Although the Council admittedly challenges the locus standi of GE and RFA to bring proceedings on behalf of the four sampled US producers of bioethanol, its complaints concern the General Court’s finding that the regulation at issue is of direct and individual concern to those four producers, within the meaning of the fourth paragraph of Article 263 TFEU, and not, as the Commission argues in its response, the capacity of GE and RFA to represent the US bioethanol industry.

46.      In its response, the Commission therefore clearly raises a ground seeking the partial setting aside of the judgment under appeal which is distinct from and independent of the ground put forward in the main appeal. (9) Consequently, that ground for partial annulment of the judgment under appeal should have been raised, by separate document, in a cross-appeal, pursuant to Articles 176 and 178 of the Court’s Rules of Procedure.

47.      However, the ground relied on by the Commission alleging that the action brought by the two associations at first instance is inadmissible is undeniably a ground involving a question of public policy. It may, and even must, be raised of its own motion by the Community judicature. (10)

48.      Accordingly, I consider that the Court cannot reject as inadmissible the Commission’s criticism that, in the judgment under appeal, the General Court distorted the articles of association of GE and FRA by accepting, in essence, that the protection of the collective interests of the US producers of bioethanol fell within the objects of those associations.

49.      That said, I consider that the Commission has failed to show that the General Court distorted the facts, in this case the objects of GE and RFA.

50.      On the one hand, the mere fact, referred to by the Commission, that associations are non-profit-making, according to their articles of association, does not mean that they are not allowed to represent the interests of an industry, including before the courts, as was accepted by the General Court. The non-profit-making nature of associations generally means that they are not allowed to make and distribute profits for the benefit of their members, and the Commission has not shown that the situation is otherwise in the case of GE and RFA, as the latter stated in their reply lodged in the cross-appeal.

51.      On the other hand, I cannot agree with the Commission’s argument that it is ‘clear that the protection of the US ethanol industry against measures to protect trade taken by [the European Union] does not fall within the objects [of the two associations]’, on the ground that their objects are limited to national matters. In fact, the objects of each of the associations, reproduced in part by the Commission in its response, are set out in a sufficiently broad manner to encompass an action before the courts on behalf of US producers of bioethanol, such as the action which they brought before the General Court. This is certainly the case with respect to the articles of association of GE, which state that that association is to take any necessary, appropriate, recommended and timely action to achieve its purpose and any other ancillary action related to its objectives. As for RFA, I consider that the distortion of facts alleged by the Commission cannot be demonstrated by the fact that the objects of that association are to promote and support the development of a competitive national renewable fuels industry. On the contrary, I am of the view that the protection of that industry against anti-dumping measures adopted by a third party, such as the European Union, and likely to affect it may, in all likelihood, contribute to the competitive development of the US renewable fuels — including bioethanol — industry, and fulfil the objects of that association.

52.      I therefore propose, in any event, that the Court reject as unfounded the objection raised by the Commission, in its response, that GE and RFA lack representative capacity and standing to bring proceedings on behalf of the US producers of bioethanol.

B.      The first ground of the main appeal, alleging misinterpretation of the fourth paragraph of Article 263 TFEU and infringement of the obligation to state reasons

53.      In essence, this ground is divided into two parts. By the first part of the first ground, the Council submits that, by concluding that the four sampled producers, represented by GE and RFA, were directly concerned by the regulation at issue, the General Court misinterpreted that requirement, which is set out in the fourth paragraph of Article 263 TFEU. In the second part, the Council criticises the General Court for having misinterpreted the requirement of individual concern, laid down in the fourth paragraph of Article 263 TFEU, without explaining or demonstrating why the four sampled producers possessed qualities distinguishing them from other US producers of bioethanol.

54.      As I have already stated, I consider that the first part of the Council’s first ground of appeal should be upheld, which, in view of the cumulative nature of the two conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU, must render examination of the second part redundant.

1.      Summary of the parties’ arguments relating to the first part of the first ground of appeal, alleging errors of law as to the conclusion that the four sampled producers, represented by GE and RFA, were directly concerned by the regulation at issue

55.      The Council, supported by the Commission, claims that the General Court misinterpreted the requirement relating to direct concern laid down in the fourth paragraph of Article 263 TFEU, as interpreted by the Court not by finding, that the regulation at issue had direct effects on the legal situation of the four sampled producers, represented by GE and RFA, but by demonstrating, at most, an indirect effect on the economic situation of those operators, which do not export their products to the European Union market. According to those institutions, the Court has previously rejected, in particular in the judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284), the argument that, in order to fulfil the requirement of direct concern, it is sufficient to show that the measure at issue gives rise to purely economic consequences or a competitive disadvantage. In the present case, the errors of law committed by the General Court are particularly apparent in paragraphs 110, 111, 114, 116 and 117 of the judgment under appeal. The Commission adds that, in applying the case-law relating to the requirement of direct concern, the General Court, in paragraphs 93 to 104 of the judgment under appeal, was wrong to consider that it was sufficient, for the purpose of establishing direct concern, that the four sampled producers manufactured a product which, if exported by a third party to the European Union, was subject to anti-dumping duty. Such an interpretation confuses what is direct with what is indirect and what is legal with what is economic. In the Commission’s view, the attempt by GE and RFA, in their written submissions before the Court, to obscure the factual content of the judgment under appeal in no way alters that analysis.

56.      GE and RFA contend in the first place, that the Council is inviting the Court to reassess the factual findings made by the General Court, which does not fall within the jurisdiction of the court hearing the appeal. Those criticisms, which concern the factual findings made by the General Court in paragraphs 103 and 114 of the judgment under appeal, are therefore inadmissible. In the second place, GE and RFA take the view that the fact that large quantities of bioethanol which the four sampled producers produced were exported to the European Union and the fact that they were identified as producers/exporters in the regulation at issue were sufficient for the General Court to find that those operators were directly concerned by that regulation. The General Court was entitled to find that the four sampled producers were US producers of bioethanol exporting their production to the European Union and that, since that production was subject to anti-dumping duties, those duties affected the legal position of those companies. In any event, as the sampled producers knew that their sales were intended for export to the European Union and therefore had an export price, the absence of direct sales is irrelevant. According to GE and RFA, the concern is equally direct in the case of a potential exporter of the product concerned to the European Union. Moreover, the Court’s case-law cited by the institutions in support of their argument is irrelevant, because it does not relate to the criterion of direct concern or relates to factual situations that are not comparable.

2.      Assessment

57.      As the General Court was right to point out in paragraph 67 of the judgment under appeal, a statement which is, moreover, not disputed in the present case, the concept of direct concern in the fourth paragraph of Article 263 TFEU requires that two cumulative criteria be fulfilled. On the one hand, the act at issue must directly affect the legal situation of the person seeking to annul it. On the other hand, that act must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules. (11)

58.      In the present case, only the application of the first criterion, that is to say the direct effect of the regulation at issue on the legal situation of the four sampled producers, is the subject of the criticism levelled against the judgment under appeal by the Council and the Commission.

59.      In that regard, it is first necessary to reject the claims of GE and RFA that the first part of the Council’s first ground of appeal seeks to call into question before the Court the factual findings and assessments made by the General Court.

60.      As I shall explain in more detail, the Council appears to me to be reading quite correctly the factual premisses on which the General Court based its legal finding that the four sampled producers were directly concerned by the regulation at issue, a finding which is disputed by the institutions. It is, conversely, GE and RFA which, on various occasions in their submissions, attempt to distort the factual findings and assessments made by the General Court in the judgment under appeal.

61.      I shall explain that observation.

62.      The parties to the dispute before the General Court have discussed at length whether the four producers sampled during the investigation exported their bioethanol production to the European Union or whether, on the contrary, those exports were made by unrelated traders/blenders.

63.      As the General Court pointed out in paragraph 94 of the judgment under appeal, the regulation at issue stated that, since none of the four sampled producers themselves exported bioethanol to the European Union market, their sales were made on the domestic (US) market to unrelated traders/blenders, which then blended the bioethanol with gasoline for the purpose of reselling it on the domestic market and for export, in particular to the European Union.

64.      Following the various findings made by the General Court in paragraphs 95 to 102 of the judgment under appeal, which are not called into question in this appeal, the General Court drew the conclusion, in paragraph 103 of that judgment, that it ‘has been established to a sufficient standard that the very significant volumes of bioethanol that were purchased during the investigation period by the eight traders/blenders surveyed from the [four] sampled US bioethanol producers were in large part exported to the European Union. ...’.

65.      By using an impersonal and indirect form, as previously used in paragraph 97 of the judgment under appeal (‘... a significant volume of bioethanol from the four sampled producers had been exported on a regular basis to the European Union during the investigation period’), the General Court did not find, even by implication and contrary to what GE and RFA argue before the Court, that those companies themselves exported their production to the European Union.

66.      It is clear from paragraph 103 of the judgment under appeal that the General Court acknowledged that the bioethanol produced by the four sampled producers had been ‘purchased’ by the unrelated traders/blenders surveyed before being exported by them, in large part to the European Union. As the Commission points out, the General Court therefore merely found that bioethanol produced by the four sampled producers had been indirectly brought onto the European Union market, that is to say via unrelated traders/blenders after they had blended it with gasoline.

67.      There is no suggestion in any passage of the judgment under appeal that the General Court considered that the US producers of bioethanol had the status of exporters. The lack of recognition of such status is expressly acknowledged in paragraph 110 of the judgment under appeal, in which the General Court stated that a producer, ‘even if it is not the exporter of those products’, may find itself ‘substantially affected’ by the imposition of anti-dumping duties on imports of the products into the European Union. This is further confirmed by paragraph 111 of that judgment, which states that the four sampled producers ‘produced bioethanol in its pure state during the investigation period and that it was their products that the traders/blenders blended with gasoline and exported to the European Union’.

68.      It follows that, contrary to what is claimed by GE and RFA, neither the Council nor the Commission is in any way inviting the Court to reassess the facts. On the contrary, those institutions have accurately read the relevant paragraphs of the judgment under appeal.

69.      The Council’s criticisms, like those of the Commission, merely challenge the General Court’s legal inference that, in essence, the imposition of anti-dumping duties provided for by the regulation at issue has had direct effects on the legal situation of the four sampled producers because of their status as sampled US producers of bioethanol, part of whose production was exported to the European Union.

70.      I consider that those criticisms are well founded, since the grounds put forward by the General Court which led it to conclude that the regulation at issue had direct effects on the legal situation of those four operators are, in my view, insufficient and erroneous.

71.      First of all, I should point out that the General Court, in paragraph 104 of the judgment under appeal, infers from the assessments in paragraphs 97 to 103 of that judgment that the four sampled producers were directly concerned, within the meaning, inter alia, of the case-law referred to in paragraph 67 of that judgment, whereas, in paragraphs 106 to 117 of that judgment, it rejects, in turn, the objections to that conclusion raised by the Council and the Commission.

72.      Paragraphs 97 to 102 of the judgment under appeal are limited to considerations relating to the destination, volume and characteristics of the bioethanol production of the four sampled US producers. As previously stated, in paragraph 103 of the judgment under appeal, the General Court inferred from those considerations that it had been established to a sufficient standard that very significant volumes of bioethanol purchased from the sampled producers by unrelated traders/blenders were in large part exported to the European Union.

73.      Although such assessments of an economic nature are not inaccurate and are, in any event, not disputed by the Council, they are nevertheless insufficient to demonstrate, as the General Court essentially held in paragraph 104 of the judgment under appeal, that the anti-dumping duties imposed by the regulation at issue directly affected the legal situation of the four sampled producers.

74.      The finding that, before the introduction of the anti-dumping duties, the bioethanol production of the sampled producers entered the European Union market via unrelated traders/blenders, after being blended with gasoline, does not necessarily mean that it has been shown that the legal situation of the four sampled producers was changed by the imposition of those duties.

75.      A ruling to that effect would suggest that any producer from a third country whose products find their way onto the European Union market is directly affected, for the purpose of the fourth paragraph of Article 263 TFEU as interpreted by the Court, by the imposition of anti-dumping duties on those products.

76.      It is important to recall that, according to the Court’s case-law, regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally and that it is therefore only on account of certain particular circumstances that the provisions of those regulations may be of direct (and individual) concern to those producers and exporters of the product in question who are alleged on the basis of information about their business activities to be dumping. (12)

77.      The mere fact that a product enters the European Union market, even in a significant volume, is not a sufficient basis for finding that, once an anti-dumping duty has been imposed on that product, the legal situation of its producer is directly affected by that duty.

78.      If that were the case, the legislative nature of anti-dumping regulations would have no basis. In other words, each producer of a product subject to an anti-dumping duty would automatically, by default, because of its objective position as a producer of that product, be regarded as directly affected by the regulation imposing that duty.

79.      The fact that that producer participated in the investigation by being included in the sample used in the procedure leading to the adoption of the regulation at issue does not alter that assessment. Indeed, the inclusion of an undertaking in a representative sample in the investigation carried out by the Commission may at most be an indication that the operator is individually concerned. (13) It does not mean that that producer’s legal situation is directly affected by the imposition of definitive anti-dumping duties at the end of that investigation.

80.      The conclusion drawn prematurely by the General Court in paragraph 104 of the judgment under appeal seems to me all the more open to criticism, since, at the same time, the General Court never contradicted either the finding made in the regulation at issue, as referred to in paragraph 94 of the judgment under appeal, that the producers in question made their sales on the domestic (US) market to unrelated traders/blenders for the purpose of its resale by those traders/blenders both on the domestic (US) market and the export market, or the finding, similarly referred to in paragraph 102 of the judgment under appeal, that it was not possible to compare the normal values with the relevant export prices, findings which support the institutions’ argument that the sampled producers sold their production on the domestic US market to those traders/blenders and had no influence on the destination or the pricing of export sales.

81.      The assessments made in paragraphs 107 to 110 and 114 to 117 of the judgment under appeal, the effect of which was to reject the arguments put forward by the Council and the Commission, are no more convincing.

82.      First, the findings of the General Court, set out in paragraphs 107 to 110 of the judgment under appeal, that, in essence, whether an operator is directly concerned by a regulation imposing anti-dumping duties does not depend on its status as a producer or exporter, since a producer which is not the exporter of the exported products subject to anti-dumping duty may find itself ‘substantially affected’ by the imposition of such duty on the product concerned, do not, in the final analysis, answer the question whether the legal situation of the four sampled producers is directly affected by the imposition of the anti-dumping duties in the regulation at issue.

83.      Indeed, I am ready to accept that the mere fact that an operator is a producer is not sufficient to exclude ipso jure fulfilment of the requirement that an operator be directly concerned by a regulation within the meaning of the fourth paragraph of Article 263 TFEU.

84.      However, the General Court failed to explain why the legal situation of a producer from a third country which sells its products only on the domestic market of that country to other operators which themselves sell on the product, after adding another substance, on that domestic market as well as on the export market, might be directly changed by the imposition of anti-dumping duties on that product which are applicable on the European Union market. In that regard, the fact that, in paragraph 110 of the judgment under appeal, the General Court used the phrase ‘substantially affected’, which relates to the requirement of individual concern and not to that of direct concern, appears to indicate not only a terminological approximation but, more fundamentally, the failure to carry out a proper examination of, first, the impact of the imposition of the anti-dumping duties on the legal situation of the sampled US producers of bioethanol, which relates to the requirement of direct concern laid down in the fourth paragraph of Article 263 TFEU, and, secondly, the argument of the institutions that the regulation at issue had only an indirect economic effect on the situation of those producers.

85.      Secondly, similar considerations apply to the General Court’s assessments in paragraphs 114 to 116 of the judgment under appeal.

86.      In the first place, in paragraph 114 of that judgment, which merits being reproduced in its entirety, the General Court states that ‘... even supposing that the traders/blenders bore the anti-dumping duty and it were proven that the bioethanol marketing chain was interrupted so that they were not able to pass on the anti-dumping duty to the producers, it must nevertheless be recalled that the imposition of an anti-dumping duty changes the legal conditions under which the bioethanol produced by the four sampled producers will be marketed on the European Union market. Therefore, the legal position of the producers in question on the European Union market will, in any event, be directly and substantially affected’. Moreover, in paragraph 115 of the judgment under appeal, the General Court also rejected the Commission’s argument that the imposition of the anti-dumping duties had only an indirect effect on the situation of the four sampled producers, stating that the Commission is wrong ‘in disputing the fact that an undertaking in the marketing chain other than the exporter found to engage in dumping practices ought to be able to challenge an anti-dumping duty …’.

87.      Those paragraphs of the judgment under appeal appear to me to contain two errors of law.

88.      On the one hand, the General Court fails to explain how the legal position of a producer from a third country, such as each of the four sampled producers, which sells its product only on the domestic market of that country to independent operators found to engage in dumping practices may be directly affected by the imposition of anti-dumping duties on the product exported by those independent operators, even though the latter cannot pass on the anti-dumping duties to that producer.

89.      In other words, if, in the situation examined by the General Court in paragraphs 114 and 115 of the judgment under appeal, the unrelated traders/blenders engage in dumping practices and bear all the anti-dumping duties imposed by the regulation at issue on the European Union market, I fail to see how the legal situation of the producers of the product in question, which sell that product exclusively on the US domestic market, can be directly affected by the levying of those duties.

90.      In such a situation, it is certainly possible, as the Commission submits, that the imposition of anti-dumping duties has an impact on the volume of sales made by bioethanol producers on the US domestic market to unrelated traders/blenders. The latter are likely to reduce their purchases for export to the European Union, without being in a position to offset that reduction by increasing their supplies to the US domestic market or to export markets other than that of the European Union. However, those consequences are of an economic nature and are therefore, in my view, insufficient to show that the imposition of anti-dumping duties directly changes the legal situation of the producers in question on the European Union market. In fact, in that scenario, and contrary to what the General Court stated in the second sentence of paragraph 114 of the judgment under appeal, the US producers of bioethanol have no ‘legal position’ on the European Union market.

91.      On the other hand, the General Court seems, at least by implication, to attach importance to the fact that the producers in question participated in the investigation carried out by the Commission. As I have already stated in point 84 of this Opinion, such participation may, at most, be relevant in connection with establishing that the requirement that an operator should be individually concerned is fulfilled, but cannot be relevant for the purpose of examining the requirement relating to direct concern, within the meaning of the fourth paragraph of Article 263 TFEU.

92.      In the second place, the General Court’s findings in paragraph 116 of the judgment under appeal cannot invalidate what has been stated above and nor do they justify a finding that the General Court was fully entitled to conclude that the four sampled producers were directly concerned by the regulation at issue.

93.      On the one hand, it is, in my view, wrong to claim that ‘the structure of the contractual arrangements between economic operators in the bioethanol marketing chain has no bearing on whether a producer of bioethanol is directly concerned by the … regulation [at issue]’ and that to argue otherwise ‘would effectively mean that only a producer which sells its product directly to an importer in the European Union may be directly concerned …, a proposition for which there is no support in the basic regulation’.

94.      Indeed, the Court’s case-law, correctly cited by the General Court in paragraphs 70 and 71 of the judgment under appeal, demonstrates that the situations in which the Court has found actions brought by economic operators against regulations imposing anti-dumping measures to be admissible were based, inter alia, on the fact that account was taken of the particular features of the business dealings with other operators, in particular for the purpose of constructing the export price to the European Union.

95.      I therefore fail to see why that rationale should not apply to the particular features of the structure of the contractual arrangements between US producers of bioethanol and unrelated traders/blenders, even if consideration of those particular features might result in a finding that those producers are not directly concerned.

96.      Moreover, I cannot agree with the assertion that that conclusion is tantamount to finding that a producer is directly concerned only if it sells its production directly on the European Union market. Other situations are indeed possible, depending, specifically, on the commercial arrangements, such as sales to intermediaries/exporters related to the producer in question. In any event, as the General Court has pointed out, the fact that the basic regulation is silent on that question is irrelevant, since the conditions for the admissibility of an action for annulment, such as that in the present case, are governed by the fourth paragraph of Article 263 TFEU.

97.      On the other hand, contrary to what the General Court stated in the last sentence of paragraph 116 of the judgment under appeal, the approach adopted by the institutions, with which I concur, does not have ‘the effect of restricting the legal protection of producers of products subject to anti-dumping duties solely according to the export marketing structure’.

98.      That approach is based, as I have already stated, on an examination of the requirements relating to the direct concern of those producers, which are governed by the fourth paragraph of Article 263 TFEU.

99.      Moreover, if, as I propose, the Court finds that the General Court erred in law by finding that the four sampled producers were directly concerned by the regulation at issue, that would not mean that those producers are deprived of legal protection.

100. An operator which is found, without question, not to be directly and individually concerned by a regulation imposing anti-dumping duties cannot be prevented — including, in my view, when granted leave to intervene — from pleading the invalidity of such a regulation before a court of a Member State hearing a dispute relating to the duties to be paid to the competent customs or tax authorities. (14)

101. Accordingly, I am of the view that, in concluding that the four sampled producers were directly affected by the regulation at issue, the General Court committed several errors of law in the judgment under appeal.

102. Consequently, I propose that the Court uphold the first part of the Council’s first ground of appeal and set aside the judgment under appeal, without it being necessary to examine the second part of that ground. I shall examine the consequences which setting aside the judgment under appeal in that respect will have on the dispute at first instance in point 251 of this Opinion.

103. However, I wish to make it clear that I propose that the judgment under appeal be set aside only partially. This relates to the admissibility of the action at first instance brought by GE and RFA only in so far as it was brought on behalf of the four sampled US producers of bioethanol and not in so far as it was brought in their own name or on behalf of the members of those associations other than those sampled producers.

104. Since the merits of the General Court’s findings on those other aspects of the admissibility of the action brought by GE and RFA are the subject matter of the cross-appeal brought by those associations, it is therefore necessary, at this point, to examine it.

C.      The cross-appeal

105. Before considering the grounds in support of the cross-appeal lodged by GE and RFA, it is important to analyse the objections raised by the Commission as to its admissibility.

1.      Admissibility of the cross-appeal

(a)    Summary of the arguments of the parties

106. In its response and its rejoinder in the cross-appeal, the Commission submits, in the first place, that that appeal is inadmissible in so far as it was brought by a lawyer subdelegated by the lawyer granted authority to act by GE and RFA, in breach of Article 44(1)(b) of the Court’s Rules of Procedure. According to the Commission, such subdelegation is not permitted by that article of the Court’s Rules of Procedure and, in any event, is not covered by the authority granted by GE and RFA to Mr Vander Schueren to represent them in the present dispute.

107. In the second place, the Commission claims that the cross-appeal brought by GE and RFA is inadmissible, on the ground that those associations do not have proper authority, under their respective articles of association, to represent the commercial interests of their members.

108. GE and RFA challenge both those arguments.

(b)    Assessment

109. Regardless of whether the Commission — which, in the present case, is neither the party which lodged the main appeal nor the institution which adopted the regulation at issue and, therefore, unlike the Council, is not the ‘respondent in the cross-appeal — may, autonomously, raise an objection of inadmissibility which has not been put forward by the Council, its objections concerning the admissibility of the cross-appeal must, in my opinion, be rejected.

110. As regards the first argument, I would recall that, under Article 119(2) of the Rules of Procedure of the Court of Justice, which applies to a cross-appeal pursuant to Article 177(2) of those rules, lawyers must lodge at the Registry an official document or an authority to act issued by the party whom they represent. Similarly, Article 173(2) of the Court’s Rules of Procedure provides that Article 119(2) of those rules also applies to responses in an appeal. Moreover, it follows from Article 44(1) of the Court’s Rules of Procedure that, in order to qualify for the privileges, immunities and facilities specified in Article 43 of those rules, lawyers must furnish proof of their status by an authority to act issued by the party which they represent, where the latter is a legal person governed by private law.

111. It follows that, in order validly to represent a party before the Court, including in appeal proceedings and cross-appeal proceedings, a lawyer must have an official document or authority to act granted by that party.

112. Without calling into question the validity of the authority granted by GE and RFA to Mr Vander Schueren to represent those associations in the present dispute, the Commission submits that that lawyer subdelegated the representation of both those parties to Mr Peristeraki.

113. That argument is based on a misreading of the documents before the Court. Although it is true that Mr Peristeraki electronically lodged the document instituting the cross-appeal, using an account which granted him access to the computer application known as ‘e-Curia’, (15) the fact remains that Mr Vander Schueren signed the original of the cross-appeal, as well as the response to the main appeal. That lawyer therefore did not subdelegate the authority granted to him by GE and RFA to represent those associations before the Court.

114. As regards the second argument put forward by the Commission, it cannot succeed either, in my view, since it could lead, at most, to the inadmissibility of the second ground put forward in support of the cross-appeal, but not to the inadmissibility of the cross-appeal as a whole. The Commission’s complaint is manifestly ineffective in that it relates to the first ground of the cross-appeal, which concerns the General Court’s findings as to the standing of GE and RFA to bring proceedings, not on behalf of their members but in their own name. As regards the objection of inadmissibility relating to the second ground of the cross-appeal, it overlaps with the objection of inadmissibility set out in the Commission’s response, alleging that GE and RFA lacked representative capacity and lacked standing to bring proceedings on behalf of US producers of bioethanol before the General Court, which I propose should be dismissed in points 50 and 51 of this Opinion. Since those considerations are equally valid as regards the admissibility of the cross-appeal lodged by GE and RFA, I would therefore refer to them here.

115. Accordingly, I propose that the Court dismiss the Commission’s objection as to the admissibility of the cross-appeal.

116. It is therefore necessary to examine the two grounds of the cross-appeal. To the extent that the second of those grounds concerns, like the first ground of the Council’s main appeal, the admissibility of the action at first instance brought on behalf of the members of GE and RFA (in so far as it concerns, here, the members of those associations other than the four sampled US producers of bioethanol), I propose that the order of analysis of those grounds be reversed and I shall start, therefore, with the second.

2.      The second ground of the cross-appeal, alleging errors of law as regards the finding that GE and RFA do not have standing to bring proceedings on behalf of their members other than the four sampled US producers

(a)    Summary of the arguments of the parties

117. GE and RFA claim that the General Court erred in law in finding that they did not have standing to bring proceedings on behalf of their members other than the sampled US producers of bioethanol, namely, first, the traders/blenders Murex and CHS and, secondly, the other non-sampled members.

118. First of all, the General Court was wrong to find, in paragraphs 52 to 55 of the judgment under appeal, that the protection of the interests of Murex and CHS could not provide grounds for the admissibility of the action, since they were merely ‘associate’ members of GE and RFA and therefore did not have voting rights. According to GE and RFA, the Court’s case-law recognising that associations have standing to bring proceedings makes no distinction between associate and other members, and, on the contrary, makes it clear that an action brought by an association acting in place of one or more of its members who could themselves have brought an admissible action will itself be admissible.

119. The General Court was also wrong to find, in paragraphs 152 to 154 of the judgment under appeal, that the other members of GE and RFA not included in the sample of exporting producers were not directly concerned by the regulation at issue.

120. GE and RFA add that the General Court also failed to examine the issue of their individual concern. They participated in the proceedings as representatives of all their members.

121. The Council submits that the second ground of the cross-appeal is inadmissible and, in any event, lacking any foundation in law. It thus states, first of all, that the examination to ascertain, on the one hand, whether the associate members of GE and RFA have a membership status sufficient for the two associations to be able to represent them and, on the other hand, whether the regulation at issue has effects on the members of the associations which were not sampled exporting producers, is concerned with questions of fact, not of law. The two associations have failed to show that the assessments made by the General Court, in paragraphs 52 to 55 of the judgment under appeal, concerning their links with their associate members, are the result of a distortion of the evidence. Similarly, in paragraphs 152 to 154 of the judgment under appeal, the General Court examined only the facts, without addressing questions of law.

122. In any event, in the view of the Council, the General Court did not err in law in ruling that the two associations did not have standing to bring proceedings on behalf of Murex and CHS. The Council points out, in that regard, that GE and RFA have not adduced any evidence to show that the distinction between ‘associate’ members and other members of an association is irrelevant for the purpose of determining whether it has standing to bring proceedings. It observes that, if that were the case, an associate member of an association who is not in a position to influence its decisions could be involved in proceedings which may harm his interests. Similarly, nor did the General Court err in law in finding that the two associations did not have standing to bring proceedings on behalf of their other non-sampled members.

123. The Commission concurs with the Council’s arguments.

(b)    Assessment

124. As regards the second part of this ground of the cross-appeal, by which GE and RFA challenge the General Court’s conclusion concerning the inadmissibility of the action at first instance brought on behalf of the non-sampled US producers, in my view it must logically be dismissed, without it being necessary to rule on its admissibility.

125. If, as I propose that the Court should find, the General Court erred in law in accepting that the four sampled US producers of bioethanol were directly affected by the regulation at issue and if, as I think and as I suggest in point 251 of this Opinion, it should have found that the action at first instance was inadmissible, such a finding is all the more applicable to the action brought by GE and RFA on behalf of the non-sampled US producers of bioethanol. The complaints directed against paragraphs 151 to 154 of the judgment under appeal therefore cannot be upheld.

126. By contrast, the first part of the second ground of the cross-appeal, which criticises the General Court for finding, in paragraphs 52 to 55 of the judgment under appeal, that the action at first instance brought by GE and RFA on behalf of two traders/blenders who participated in the investigation, namely Murex and CHS, was inadmissible, is not so easy to resolve and, in the final analysis, seems to me to be well founded.

127. First of all, with all due respect to the Council, this part is, in my view, admissible.

128. Contrary to what the Council maintains, GE and RFA in no way dispute the factual finding of the General Court that Murex and CHS were only associate members, without voting rights in those associations. In fact, those associations take issue with the General Court for introducing, for the purposes of the examination of the admissibility of the action for annulment of an association representing the interests of its members, a criterion drawing a distinction, in essence, according to whether or not its members have voting rights within the bodies of the association, which is arbitrary and, therefore, erroneous. That question, which also affects the scope of the review carried out by the General Court concerning the admissibility of actions brought before it, is certainly a question of law which falls within the jurisdiction of the Court when hearing and determining an appeal.

129. In the light of those considerations, the starting point for examining the merits of the present part must, in my view, be to note that, in such circumstances, the admissibility of an action brought by a trade association which is responsible for protecting the collective interests of its members depends on whether the undertakings which it represents or some of those undertakings themselves have locus standi in their own right. (16)

130. Accordingly, under the fourth paragraph of Article 263 TFEU, an action brought by an association acting in place of one or more of its members who could themselves have brought an admissible action will itself be admissible, (17) provided that those members have not themselves brought an action to protect their own interest(s). (18)

131. GE and RFA do not call into question that case-law, which was also correctly referred to by the General Court in paragraphs 45 and 51 of the judgment under appeal. Moreover, those associations rely on that case-law for the proposition that, since the status of Murex and CHS as members, albeit ‘associate’ members, of the associations is not disputed, the General Court should have verified only whether Murex and CHS were directly and individually concerned by the regulation at issue in order to determine whether the action brought by GE and RFA in their respective names was admissible.

132. In view of the various findings made by the General Court, I tend to think that GE and RFA are correct.

133. I would first point out that, in paragraphs 42 and 78 of the judgment under appeal, the General Court was fully entitled to hold that GE and RFA represented ‘the interests of the US bioethanol industry’. In other words, as I have also stated in points 50 and 51 of this Opinion, the General Court was right to consider that the objects of each of those associations, as defined in their articles of association, allowed them to bring proceedings to protect the collective interests of their members.

134. Next, it is common ground that, even though they have ‘associate’ member status, both Murex and CHS belong to the category of ‘members’ of GE and RFA, respectively, and participate in the meetings of those associations.

135. Finally, nowhere in the judgment under appeal is it stated that GE and RFA, which participated in the investigation carried out by the Commission and whose tasks, according to their articles of association, include protecting the collective interests of their members, was required to obtain a specific authority from those members, following a vote by them, to represent them in legal proceedings.

136. In paragraph 55 of the judgment under appeal, the General Court nevertheless found that ‘without voting rights, CHS and Murex do not have the possibility of ensuring that their interests prevail when those interests are being represented by the association concerned. In those circumstances, and in the absence of other factors that might show that an ‘associate’ member would have such a possibility of having its interests prevail, it must be concluded that, in the present case, [RFA] does not have standing to bring proceedings to the extent that it claims that it represented CHS, and [GE] does not have standing to bring proceedings to the extent that it claims that it represented Murex’. (19)

137. In so concluding, the General Court ultimately introduced a criterion additional to the conditions required by the case-law referred to in paragraphs 129 and 130 of this Opinion, namely that GE and RFA, in order to bring proceedings on behalf of Murex and CHS, respectively, were required to show not only that the latter were directly and individually concerned by the regulation at issue, but also, and as a preliminary matter, that those operators were able to ensure that their individual interests would ‘prevail’ within the bodies of those associations before any action seeking to protect the collective interests those associations are responsible for protecting, failing which the action brought by GE and RFA would be inadmissible.

138. The addition, by way of judicial development of the law, of such a criterion to the already sufficiently strict conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU constitutes, in my view, an infringement of that provision, which, moreover, is not supported by an adequate statement of reasons.

139. Furthermore, the approach adopted by the General Court is such as to introduce, for the legal persons concerned, a source of legal uncertainty, or even arbitrariness, as GE and RFA argue.

140. That approach inevitably raises the question of where its own limits lie and how similar situations should be treated. For example, would an action brought by a trade association authorised to protect the collective interests of its members be admissible if one of those members, should the case arise, does not participate in the decision to bring an action for annulment before the EU courts, does not support it or distances itself from it? Also, would an action brought by an association on behalf of its members be admissible if those members had only partial voting rights, relating to certain decisions of the association?

141. Moreover, in the case of associations whose articles of association are governed by the law of third countries, as in the present case, if the approach of the General Court were to be adopted, it is conceivable that practical considerations, such as ignorance of the law of that country or difficulties in understanding the language or languages spoken there, might lead to identical situations being treated differently. For example, would the institutions, and subsequently the General Court, be in a position to assess in the same way the articles of association of a trade association representing, for example, a Thai industry governed by Thai law?

142. Accordingly, in the light of those considerations, I consider that, by making the admissibility of the action brought by GE and RFA on behalf of Murex and CHS subject to a precondition that is additional to the conditions laid down in the fourth paragraph of Article 263 TFEU, the General Court erred in law, which must lead, in that respect, to the setting aside of the judgment under appeal.

143. I shall examine the consequences which setting aside the judgment under appeal in that respect will have on the dispute at first instance in point 252 of this Opinion.

3.      The first ground of the cross-appeal, alleging an erroneous limitation of the scope of the standing of the associations GE and RFA to bring proceedings in their own name

(a)    Summary of the arguments of the parties

144. In the first place, GE and RFA dispute the finding made by the General Court, in paragraph 79 of the judgment under appeal, that the regulation at issue did not bring about a change in their legal situation, rights and obligations. They take the view that a regulation imposing an anti-dumping duty may affect the legal situation of an individual other than simply by requiring that individual to pay anti-dumping duty. They also point out that they actively participated in the administrative procedure in order properly to represent their members before the institutions of the European Union. Moreover, GE and RFA argue that the General Court erred in law in rejecting, in paragraph 86 of the judgment under appeal, the judgment of 24 March 1993, CIRFS and Others v Commission (Case C‑313/90, EU:C:1993:111) as irrelevant, on the ground that the applicants’ position as representative associations was not comparable to that of a negotiator acting formally on behalf of its members, which was the situation in that case.

145. In the second place, GE and RFA dispute the General Court’s conclusion, set out in paragraphs 85 and 87 of the judgment under appeal, that they could be regarded as directly and individually concerned by the regulation at issue only on the basis of the 10th plea in their application, which seeks to protect the procedural guarantees granted to them by Articles 6(4), 19(1) and (2) and 20(2), (4) and (5) of the basic regulation.

146. Those associations point out that the two judgments relied on by the General Court in that regard, namely the judgments of 4 October 1983, Fediol v Commission (191/82, EU:C:1983:259, paragraph 31), and of 17 January 2002, Rica Foods v Commission (T‑47/00, EU:T:2002:7, paragraph 55), cannot support that conclusion. While it may be inferred from those judgments that a person can be individually concerned by a measure only ‘if the applicable EU legislation grants him certain procedural guarantees’, those judgments nevertheless do not support the argument that standing to bring proceedings should be limited solely to pleas in law alleging infringement of procedural rights.

147. GE and RFA argue that, once it has been established that the individual is directly and individually concerned, his action must be regarded as admissible in its entirety. All interested parties within the meaning of the basic regulation, whether producers, exporters, importers or their representative associations, enjoy the same rights under that regulation.

148. The Council, with which the Commission concurs, submits that the General Court did not err in law in limiting consideration of the standing of the two associations to bring proceedings in their own right to their 10th plea, alleging infringement of their procedural guarantees.

(b)    Assessment

149. As a preliminary point, I would point out that, in ruling on whether GE and RFA have an interest in their own right, the General Court acknowledged, in paragraphs 85 and 87 of the judgment under appeal, that those associations were directly and individually concerned by the regulation at issue to the extent that, as interested parties in the proceeding, they enjoyed the procedural guarantees granted by Articles 6(7), 19(1) and (2) and 20(2), (4) and (5) of the basic regulation. The General Court inferred from this that GE and RFA were therefore entitled to rely only on the 10th plea in law in the application at first instance, that plea in law being the only plea in law seeking to safeguard their procedural rights.

150. It must be noted that none of the parties concerned disputes either that the General Court was fully entitled to rule that the 10th plea in law at first instance was admissible or its finding that only that plea sought to safeguard the procedural rights granted in this case to GE and RFA, in accordance with the abovementioned provisions of the basic regulation.

151. On the other hand, GE and RFA criticise the General Court for having restricted the scope of the admissibility of their action, in their own name, to that plea, whereas, in their view, once their right of action had been recognised, they were entitled to challenge the substantive legality of the regulation at issue.

152. In support of that line of argument, GE and RFA essentially put forward three complaints in respect of the General Court’s assessment in paragraphs 79, 81 and 85 to 87 of the judgment under appeal, none of which seems to me well founded.

153. First, I consider that it is clearly necessary to reject the criticism of paragraph 79 of the judgment under appeal, according to which the General Court erred in concluding that GE and RFA were not directly concerned by the regulation at issue in so far as it imposes anti-dumping duties. Irrespective of the errors of law noted above, it is obvious, in my view, that, as the General Court held, the imposition of anti-dumping duties did not alter the legal situation of GE and RFA in their individual capacity, since, in particular, it does not impose any obligation upon them, because those associations are not themselves required to pay that duty.

154. Secondly, as regards the complaint concerning paragraphs 81 and 85 to 87 of the judgment under appeal, it is important to point out first of all that, in accordance with the case-law correctly referred to by the General Court in paragraph 81 of the judgment under appeal, the fact that a person participates in the process by which a European Union measure is adopted may distinguish that person individually with regard to that measure only if provision has been made under the European Union rules for procedural guarantees in his favour. (20)

155. It is true, as GE and RFA claim, that it is not expressly stated in the judgment of 4 October 1983, Fediol v Commission (191/82, EU:C:1983:259, paragraph 31) that the fact that associations, such as GE and RFA, are acknowledged as enjoying such procedural guarantees implies that only a plea alleging infringement of those guarantees is admissible.

156. However, the Court has previously held, citing the above judgment and dismissing an appeal as manifestly unfounded, that a person or entity enjoying such a procedural right will not, as a rule, where there is any type of procedural guarantee, have standing to bring proceedings contesting the legality of an EU act as regards its substantive content. (21) As is apparent in particular from the judgment of 4 October 1983, Fediol v Commission (191/82, EU:C:1983:259, paragraph 31), the exact scope of an individual’s right of action against an act of the European Union depends on the legal status conferred upon him by the EU law seeking to protect the legitimate interests thus recognised.

157. It follows that the mere fact of relying on the existence of procedural guarantees — and even though the appellants in the cross-appeal may enjoy such procedural guarantees in their own right — does not mean that an action will be admissible where it is based on pleas alleging infringement of substantive rules of law. (22)

158. In the present case, neither GE nor RFA has stated or a fortiorishown in support of their cross-appeal that the basic regulation grants representative associations, in their own name, substantive rights or imposes on those associations, in their own name, obligations of a substantive nature going beyond the procedural guarantees which are conferred on them by that regulation and which would have justified examination by the General Court of the other pleas in the action at first instance relied on by those associations, in their own right, alleging that the regulation at issue is invalid as regards its substantive content.

159. Consequently, the second complaint made by GE and RFA cannot, in my view, succeed.

160. Thirdly, GE and RFA take issue with the General Court for dismissing in this case the solution adopted in the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 28 to 30), by rejecting the argument of those associations that they enjoyed a status comparable to that of a negotiator, within the meaning of that judgment, which therefore conferred upon them standing to bring proceedings.

161. It is true that the role played by an association in a procedure which led to the adoption of an act within the meaning of Article 263 TFEU may support the claim that the action brought by the association is admissible, even though its members are not directly and individually concerned by that act, where its position as negotiator has been affected by the latter. (23)

162. However, in considering that the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111) was not applicable in this case, the General Court did not, in my view, commit any error of law.

163. It should be noted that, in the case which gave rise to that judgment, CIRFS had been the Commission’s interlocutor with regard to the introduction of a ‘discipline’ concerning aid in the synthetic fibre sector, and its extension and adaptation, and had actively pursued negotiations with the Commission during the pre-litigation procedure, in particular by submitting written observations and by keeping in close contact with the responsible departments of the Commission. (24)

164. According to the Court’s case-law, the case which gave rise to the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111) thus concerned a particular situation in which the applicant occupied a clearly circumscribed position as negotiator which was closely linked to the actual subject matter of the decision, thus placing it in a factual situation which distinguished it from all other persons, (25) a factual situation, contemplated in proceedings under the Article 108(2) TFEU, which the Court itself described as altogether special or indeed exceptional. (26)

165. GE and RFA have in no way shown that, as professional representatives of an industry which may be subject to anti-dumping measures adopted by the Council, their situation was analogous to the exceptional situation of a negotiator examined in the case which gave rise to the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111), as the General Court was fully entitled to state in paragraph 86 of the judgment under appeal.

166. I therefore propose that the third complaint be rejected as well as the first ground of the cross-appeal in its entirety.

167. At this point, in the event that, contrary to what I have proposed, the Court should decide to reject the first ground of the Council’s main appeal, it is necessary to examine, in the alternative, the second and third grounds of that appeal, both of which concern the substance of the dispute decided by the General Court.

D.      The second ground of the main appeal, alleging misinterpretation of Article 9(5) of the basic regulation

168. As a preliminary point, the Council notes that the General Court concluded, following the analysis in paragraphs 174 to 246 of the judgment under appeal, that the institutions were obliged, without exception, to calculate an individual anti-dumping duty for each sampled producer. The Council is of the view that neither the WTO Anti-Dumping Agreement nor Article 9(5) of the basic regulation requires the institutions to do the impossible, since the structure and the manner of operation of the bioethanol industry simply do not offer any means of calculating an individual margin for the four sampled producers, represented by GE and RFA.

169. The second ground of appeal comprises, in essence, three parts. The first part alleges an error of law in that the General Court was wrong to consider that Article 9(5) of the basic regulation implements Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement and must be interpreted in a manner consistent with those provisions, which constitutes an interpretation contra legem. By the second part of the second ground of appeal, the Council criticises the General Court for distorting the term ‘supplier’, as used in Article 9(5) of the basic regulation, by extending it to the four sampled US producers of bioethanol. Finally, in the third part, the Council complains that the General Court misinterpreted the term ‘impracticable’ within the meaning of Article 9(5) of the basic regulation.

1.      The first part of the second ground of appeal, alleging an error of law as regards the finding that Article 9(5) of the basic regulation implements Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement and must be interpreted in a manner consistent with those provisions

(a)    Arguments of the parties

170. According to the Council, the General Court made several errors of law in interpreting Article 9(5) of the basic regulation in the light of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, by relying in that regard on the intention expressed by the EU legislature in amending that regulation in 2012 in order to implement the decision of the Appellate Body of the WTO Dispute Settlement Body of 15 July 2011 in the EC-Fasteners dispute (WT/DS397/AB/R) (‘the Report in the “fasteners” case’).

171. First of all, the General Court was wrong to state, in paragraphs 174 to 184 of the judgment under appeal, that Article 9(5) of the basic regulation implemented both Article 9.2 and Article 6.10 of the WTO Anti-Dumping Agreement. It is the provisions of Article 9(6) and Article 17 of the basic regulation, and not those of Article 9(5) thereof, which are intended to implement Article 6.10 of the WTO Anti-Dumping Agreement. The Council points out that the General Court relied, in that regard, in paragraphs 178 and 179 of the judgment under appeal, on the fact that Regulation (EU) No 765/2012 of European Parliament and of the Council of 13 June 2012 amending Council Regulation (EC) No 1225/2009 on protection against dumped imports from countries not members of the European Community (27) had amended Article 9(5) of the basic regulation because it was at variance with Articles 6.10, 9.2 and 18.4 of the WTO Anti-Dumping Agreement, as noted in the Report in the ‘fasteners’ case. However, according to the Council, the minor amendment to Article 9(5) of the basic regulation by Regulation No 765/2012 cannot lead to the conclusion that the original version of that provision reflected the undertaking of the European Union to transpose Articles 6.10, 9.2 and 18.4 of the WTO Anti-Dumping Agreement into its legal order.

172. Next, the Council submits that there is a difference between the wording of Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement, since the latter confines itself to imposing the obligation to ‘name’ the suppliers and not to ‘specify the duty’. Infringement of the WTO Anti-Dumping Agreement established in the Report in the ‘fasteners’ case, which concerned only imports from non-market economy countries, therefore could not be pleaded on the basis of the judgment of 7 May 1991, Nakajima v Council (C‑69/89, EU:C:1991:186, paragraphs 26 to 31).

173. Lastly, the Council argues that the General Court’s interpretation, in paragraphs 227 to 233 of the judgment under appeal, of Article 9(5) of the basic regulation in a manner consistent with Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement is contra legem. Indeed, the structure, origin and wording of Article 9(5) of the basic regulation clearly indicate that the EU legislature intended to allow the investigating authority to determine a countrywide rate, instead of individual rates of duty, in cases where the determination of individual rates of duty was ‘impracticable’, not only in cases where sampling is used. By finding, in paragraphs 227 to 233 of the judgment under appeal, that nothing in the wording of Article 9(5) of the basic regulation precluded an interpretation of the term ‘impracticable’ that was consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, the General Court thus exceeded, in the view of the Council, the limits of consistent interpretation.

174. The Commission concurs with the Council’s argument, while acknowledging a ‘close resemblance’ between the wording of Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement. It adds, in its response, that the Court held in its judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 85 to 92), that Article 9(5) of the basic regulation is not intended to implement WTO rules, so that the associations’ whole line of argument must fail.

175. GE and RFA contend, in the first place, that by ruling that the EU legislature had, in adopting Article 9(5) of the basic regulation, expressed its intention to implement a particular obligation assumed in the context of the WTO Anti-Dumping Agreement, the General Court made a finding of fact, the Council’s challenging of which is inadmissible at the appeal stage.

176. In the second place, those associations argue that the General Court was fully entitled to state that Article 9(5) of the basic regulation implemented Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, in the light of Regulation No 765/2012. If that were not the case, then only an express reference would be acceptable.

177. GE and RFA also dispute that the interpretation of Article 9(5) of the basic regulation in a manner consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement is contra legem. It is clear from paragraph 339 of the Report in the ‘fasteners’ case that the exceptions to the obligation to impose individual dumping margins relate to the situation where an investigating authority uses sampling.

(b)    Assessment

178. It is important first of all to recall that, the first subparagraph of Article 9(5) of the basic regulation, in the version applicable in the present case, states that ‘an anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except for imports from those sources from which undertakings under the terms of the basic regulation have been accepted. The regulation imposing the duty shall specify the duty for each supplier or, if that is impracticable, and in general where Article 2(7)(a) of the basic regulation applies, the supplying country concerned’. (28)

179. Article 6.10 of the WTO Anti-Dumping Agreement provides that ‘the authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination … to a reasonable number of interested parties or products by using samples ...’.

180. Article 9.2 of that agreement provides that ‘when an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned’.

181. In the first part of the second ground of appeal, the Council, supported by the Commission, criticises the General Court for stating, in paragraph 180 of the judgment under appeal, that, in adopting the first subparagraph of Article 9(5) of the basic regulation, the EU legislature had intended to implement a particular obligation assumed in the context of the WTO, in this instance in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, as referred to in the judgment in Nakajima (judgment of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186). In essence, according to the line of reasoning adopted by the General Court — and contested by the institutions — the EU legislature’s (initial) intention may be inferred from the amendment to the first and second subparagraphs of Article 9(5) of the basic regulation made by Regulation No 765/2012, following the Report in the ‘fasteners’ case.

182. The institutions also complain that the General Court, on the basis of the foregoing line of reasoning, considered, in particular in paragraph 184 of the judgment under appeal, that Article 9(5) of the basic regulation was to be interpreted in a manner that is consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, even though they clearly acknowledge that there is a similarity or ‘close resemblance’, to use the Commission’s expression, between the relevant provisions of Article 9(5) of the basic regulation and those of Article 9.2 of the WTO Anti-Dumping Agreement.

183. I only partially agree with the line of argument advanced by the Council and the Commission.

184. It is true that a simple comparison of the wording of Article 9(5) of the basic regulation, which is concerned with the imposition of an anti-dumping duty, and of Article 6.10 of the WTO Anti-Dumping Agreement, which concerns the use of the sampling procedure for the purpose of determining the dumping margin where, inter alia, the number of producers and exporters is too large, clearly shows that the first of those articles is in no way intended to transpose the particular obligation contained in the second.

185. The fact that Article 9(5) of the basic regulation, in so far as its provisions concerned non-market economy countries, was considered to be incompatible with, inter alia, Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement in the Report in the ‘fasteners’ case in no way means that the EU legislature intended to implement a particular obligation assumed under Article 6.10 of the WTO Anti-Dumping Agreement.

186. A similar line of reasoning is also apparent from the judgment of the Court of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), delivered a few months before the judgment under appeal, but not cited therein. Even though the Court, in that judgment, examined in particular the Report in the ‘fasteners’ case, observing that the WTO Dispute Settlement Body had found that some of the provisions of Article 9(5) of the basic regulation, as applicable at that time, were inconsistent with certain WTO rules, this did not prevent it from finding that the WTO Anti-Dumping Agreement could not be relied on by an individual to challenge the legality of a regulation imposing a definitive anti-dumping duty. In essence, the Court held that, to the extent that the first and second subparagraphs of Article 9(5) of the basic regulation referred to Article 2(7) of that regulation, which established a special regime of detailed rules relating to the calculation of normal value for imports from non-market economy countries, those provisions formed an integral part of that regime and thus constituted the expression of the EU legislature’s intention to adopt, with respect to such countries, an approach specific to the EU legal order that was distinct from the rules of the WTO Anti-Dumping Agreement. (29)

187. That said, I cannot agree with the Commission’s argument that the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) constitutes, as such, a basis for setting aside the judgment under appeal, on the ground that the Court held that Article 9(5) of the basic regulation does not implement any particular obligation assumed in the context of the WTO Anti-Dumping Agreement. On the one hand, the Court only ruled in that judgment on the provisions of Article 9(5) of the basic regulation as they stood at the time, which referred to the specific regime, referred to above, relating to non-market economy countries established by Article 2(7) of that regulation. The judgment in C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) is therefore not concerned with the other provisions of Article 9(5) of the basic regulation, which remain in force, in particular most of the first subparagraph thereof, according to which a regulation imposing an anti-dumping duty is to specify the duty for each supplier or, if that is impracticable, the supplying country concerned, in the case of third countries having a market economy; it is those provisions which are at issue in the present case.

188. Therefore, even though, in my opinion, the General Court erred in finding that Article 9(5) of the basic regulation implemented a particular obligation assumed under Article 6.10 of the WTO Anti-Dumping Agreement, the Court’s assessment in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), does not mean, in any event, that the General Court erred in law in considering that, by adopting Article 9(5) of the basic regulation, the EU legislature intended to implement the particular obligation assumed under Article 9.2 of that agreement.

189. However, that error does follow, in my view, from the reasoning set out in paragraphs 178 to 183 of the judgment under appeal. It is clear from those paragraphs of the judgment under appeal that the General Court inferred from the amendment to Article 9(5) of the basic regulation made by Regulation No 765/2012, as a result, inter alia, of the adoption of the Report in the ‘fasteners’ case, that the EU legislature intended to implement the particular obligation contained in Article 9.2 of the WTO Anti-Dumping Agreement by adopting Article 9(5) of the basic regulation, in its original version.

190. In the first place, it seems to me difficult from a legal perspective to establish retroactively that the EU legislature, when adopting the basic regulation in 2009, intended to implement a particular obligation assumed in the context of the WTO Anti-Dumping Agreement, solely on the basis of amendments made to that regulation in 2012. It is, on the other hand, necessary for it to be possible to deduce from the specific provision of EU law concerned that it seeks to implement, as a matter of EU law, a particular obligation stemming from the WTO agreements. (30)

191. In the second place, the amendments made in 2012 to Article 9(5) of the basic regulation concerned, as I have already stated, the provisions of the first and second subparagraphs of Article 9(5) relating to the specific rules applicable to dumping from non-market economy countries, pursuant to Article 2(7) of that regulation. Accordingly, those amendments did not concern the provisions of the first subparagraph of Article 9(5) at issue in the present case.

192. The fact, referred to by the General Court in paragraphs 182 and 183 of the judgment under appeal in support of its line of reasoning, that those amendments did not relate to the provisions of the first subparagraph of Article 9(5) of the basic regulation in no way demonstrates that the intention of the EU legislature at the time of adopting that article was to implement a particular obligation assumed in the context of the WTO Anti-Dumping Agreement. Rather, I am of the firm view that that fact supports the opposite argument.

193. Therefore, the General Court was, in my view, incorrect to hold in paragraphs 178 to 183 of the judgment under appeal that Article 9(5) of the basic regulation implemented the particular obligations assumed in the context of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement.

194. That error, however, is not sufficient, in my view, to lead to the judgment under appeal being set aside.

195. As is apparent from the subsequent grounds of the judgment under appeal, in particular paragraphs 184, 193 and 227 of that judgment, the General Court was, in my view, right to hold that the relevant provisions of Article 9(5) of the basic regulation should be interpreted in a manner consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, in particular in view of the essentially similar wording of Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement.

196. As a matter of principle, it should be recalled that the fact that a provision of an international agreement does not have direct effect does not preclude reliance upon it for the purpose of interpreting secondary EU legislation in a manner consistent with that agreement. The Court has previously ruled that the primacy of international agreements concluded by the European Union over secondary EU legislation requires that the latter be interpreted, in so far as is possible, in a manner consistent with those agreements, (31) including when the provisions of the latter do not have direct effect. (32) Both the Council and the Commission agree with this.

197. However, the requirement to interpret secondary EU legislation in a manner consistent with an international agreement presupposes hermeneutic consistency between the different provisions and applies only ‘in so far as is possible’.

198. That means that the rule of secondary EU legislation to be interpreted must be open to several possible interpretations. In point of fact, where the meaning of the provision is unequivocal and conflicts with the higher-ranking provision of international law, it will not be possible to interpret it in a manner consistent with the provision of international law, as a result of which, only by construing it contra legem — which is tantamount to depriving it of its legislative substance — is it possible to achieve an outcome which is compatible with that agreement. (33) In such situations, the interpretation of the rule of secondary EU legislation must be determined without regard to the rule of international law.

199. I would add, moreover, that, as regards the interpretation of certain provisions of the WTO agreements in the light of which the interpretation of EU law must, in so far as is possible, be carried out, the Court has on a number of occasions referred to reports of a WTO Panel or the WTO Appellate Body in support of such an interpretation. (34)

200. In the present case, on the one hand, without at this stage of the analysis further examining the wording of Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement, it must be stated that — in support of the complaint that the General Court’s interpretation of Article 9(5) of the basic legislation was contra legem — neither the Council nor the Commission has shown that the relevant provisions and wording of Article 9(5) of that regulation necessarily had to be interpreted in a manner contrary to the same provisions and wording used in Article 9.2 of the WTO Anti-Dumping Agreement. On the contrary, by arguing, in essence, that those provisions and that wording of Article 9(5) of the basic regulation had to be given an interpretation different from that adopted by the General Court — the word ‘suppliers’ receiving a narrower interpretation and the word ‘impracticable’ a broader one — the institutions have, in the final analysis, acknowledged that that article is open to a number of possible interpretations. (35) In such a situation, the principle of the primacy of international agreements over rules of secondary EU legislation requires that it is the interpretation which is consistent with the provisions of the international agreement in question which must prevail.

201. On the other hand, it should be noted that, in paragraph 222 of the judgment under appeal, the General Court noted the ‘significant parallelism’, highlighted in paragraph 344 of the Report in the ‘fasteners’ case, between Article 9.2 and Article 6.10 of the WTO Anti-Dumping Agreement, in that the latter provides for the determination of individual dumping margins, which has the effect of requiring the authorities concerned to impose anti-dumping duties on an individual basis, as provided for in Article 9.2 of that Agreement.

202. While in no way claiming that the General Court distorted the report in the ‘fasteners’ case, the institutions, in particular the Commission, appear to challenge the line of reasoning based on the wording of the provisions at issue, on the basis of the historical context, structure and purpose of all those provisions.

203. In that respect, it is important to point out that, in support of that argument, the Commission has transcribed lengthy passages from the document it lodged before the Appellate Body in the report in the ‘fasteners’ case, referring to the interpretation of Article 9.2 of the WTO Anti-Dumping Agreement itself, stating, in essence, that the fact that that article has remained unchanged, even after the addition, following the Uruguay Round, of the sampling ‘scenario’ provided for in Article 6.10 of that agreement, meant that the meaning of its provisions, in particular the term ‘impracticable’, could not have been altered by the adoption of Article 6.10.

204. Such a line of reasoning, based on the interpretation of the provisions of Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement, in no way demonstrates, in my view, that, despite having wording similar to the provisions of Article 9.2 of the WTO Anti-Dumping Agreement, the relevant provisions of Article 9(5) of the basic regulation necessarily had to be given an interpretation so different from that of the provisions of Article 9.2 that only an interpretation of the rule of secondary EU legislation which was inconsistent with the rule of international law was possible.

205. Moreover, as I shall discuss in more detail in point 231 of this Opinion, even though the Appellate Body in the Report in the ‘fasteners’ case remained cautious as to the meaning to be given to the provisions of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, the fact remains that it rejected the institutions’ approach. In particular, as correctly pointed out in paragraph 223 of the judgment under appeal, the Appellate Body stated, in paragraph 354 of the Report in the ‘fasteners’ case, that Article 9.2 of the WTO Anti-Dumping Agreement requires the authorities to specify the duties imposed on each supplier, except where this is impracticable, when several suppliers are involved. As before the General Court, the Council and the Commission are therefore again attempting to call into question the interpretation of that agreement adopted by the Appellate Body. Such a line of reasoning in no way supports their argument that, in interpreting Article 9(5) of the basic regulation in a manner consistent with Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement, the General Court erred in that it adopted an interpretation contra legem of secondary EU legislation.

206. In those circumstances, it must be accepted that, notwithstanding the errors in law noted in points 184 to 193 of this Opinion, the General Court was correct to find that the relevant provisions of Article 9(5) of the basic regulation should be interpreted in a manner consistent with Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement.

207. I therefore propose that the first part of the second ground of the main appeal be dismissed.

2.      The second part of the second ground of appeal, alleging distortion of the term ‘supplier’, as used in Article 9(5) of the basic regulation, by its extension to the four sampled US producers

(a)    Arguments of the parties

208. The Council acknowledges that, in paragraph 187 of the judgment under appeal, the General Court applied the appropriate legal rule by considering that, in accordance with Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement, an individual anti-dumping duty is, in principle, to be imposed on each ‘supplier’. However, the Council regards as legally incorrect the finding of the General Court, in paragraph 201 of the judgment under appeal, that the sampled US producers had to be recognised as suppliers because they had been retained in the sample of producers/exporters by the institutions. First, the Council reiterates its position, set out in the first part of this ground of appeal, that Article 9(5) of the basic regulation cannot be interpreted in the light of Article 6.10 of the WTO Anti-Dumping Agreement. Secondly, it submits that, under Article 9(5) of the basic regulation, only a ‘source [of imports] found to be dumped and causing injury’ may be regarded as a ‘supplier’. The sampled US producers, to whom the dumping was not attributed since they did not decide which part of their production was to be exported and did not have export prices, could not be regarded as suppliers. The Council recalls that although those producers were initially included in the sample of producers/exporters by the investigating authority, it was only because they had incorrectly stated on their sampling form that they exported bioethanol.

209. The Commission shares the Council’s view. It adds that the General Court’s assessment, in paragraphs 207 to 210 of the judgment under appeal, that the institutions could have relied on Article 2(9) of the basic regulation is incorrect in law. That provision covers a situation in which there is ‘an association or a compensatory arrangement between the exporter and the importer or a third party’, which results in there being no export price or no reliable one and thus a situation in which the producer actually exports the product. That observation is supported by Article 9.5 of the WTO Anti-Dumping Agreement and Article 11(4) of the basic regulation, which concern individual duties for ‘producers in the exporting country in question who have not exported the product to the importing Member during the period of investigation’, which was the situation of the four sampled US producers.

210. GE and RFA submit that the Council’s arguments concerning the interpretation of the term ‘supplier’ are inadmissible, in so far as those arguments call into question the General Court’s finding that, by including the four US producers in the sample of ‘exporting producers’, the institution had itself made them ‘suppliers of the dumped product’. As to the merits, GE and RFA take the view that, contrary to what is asserted by the Council, which deliberately seeks to conceal the true meaning of Article 9(5) of the basic regulation, that provision cannot be interpreted as meaning that ‘only a source [of imports] found to be dumped and causing injury may be regarded as a supplier’.

(b)    Assessment

211. It is first necessary to reject the objection raised by GE and RFA that the present part of the second ground of appeal is inadmissible on the ground that the Council seeks to call into question the assessment of the facts made by the General Court. Far from inviting the Court to reassess the facts of the dispute, the Council takes issue with the General Court for having erroneously characterised the four US producers of bioethanol as ‘suppliers’ within the meaning of Article 9(5) of the basic regulation, as interpreted in the light of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. Such a question concerning the legal characterisation of the facts certainly falls within the jurisdiction of the Court in an appeal.

212. Next, it is important to note that the Council does not dispute that, under both Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement, an individual anti-dumping duty must, in principle, be imposed on each ‘supplier’ in respect of imports of a product from all sources found to be dumped and causing injury, as the General Court pointed out in paragraph 187 of the judgment under appeal.

213. Only the General Court’s classification of the four sampled US producers as ‘suppliers’ is called into question by the institutions. The institutions are of the view that, contrary to the finding of the General Court, such a classification cannot follow solely from the fact that a producer was included in a sample for the purposes of the investigation and cooperated with that investigation.

214. In essence, according to those institutions, operators who do not export their products and do not have an export price cannot be regarded as ‘suppliers’, within the meaning of Article 9(5) of the basic regulation.

215. That line of argument is closely linked to that followed by the institutions in connection with the examination as to whether the four US producers in question were directly concerned. Moreover, in paragraph 198 of the judgment under appeal, the General Court itself referred to its assessment, set out in paragraphs 93 to 104 of the judgment under appeal in connection with the examination of whether those producers were directly concerned, at the end of which it concluded, in essence, that there were imports of bioethanol into the European Union deriving in part from the production of those producers subject to the anti-dumping duty imposed by the regulation at issue.

216. It follows that, if the Court confirms the General Court’s analysis as to the admissibility of the action at first-instance brought on behalf of the four sampled US producers, by rejecting the Council’s first ground of appeal, it will also be required upon to confirm the General Court’s finding that those four producers had to be classified as ‘suppliers’ of the dumped imports of bioethanol, within the meaning of Article 9(5) of the basic regulation, for each of which the Council was, in principle, required to calculate an individual dumping margin and to impose individual anti-dumping duties. If that is the case, it is obvious, in my view, that those producers are ‘sources’ of imports of the product subject to the anti-dumping duty imposed by the regulation at issue, as the General Court found in paragraph 198 of the judgment under appeal.

217. As regards the Commission’s criticisms of the General Court’s interpretation of Article 2(9) of the basic regulation (see paragraphs 207 and 210 of the judgment under appeal), they must, in my view, be rejected. Contrary to what the Commission asserts, that provision is not limited to a situation in which there is ‘an association or a compensatory arrangement between the exporter and the importer or a third party’, which results in there being no export price or no reliable one and thus a situation in which the producer actually exports the product. As the General Court pointed out in paragraphs 207 and 210 of the judgment under appeal, Article 2(9) of the basic regulation also governs the situation in which there is no export price, by allowing an export price to be reconstructed. (36) In any event, as the General Court held in paragraph 210 of the judgment under appeal, any difficulty in determining the export price has no bearing on the question whether there is an obligation to impose an individual anti-dumping duty on certain operators.

218. In those circumstances, and if the Court dismisses the first ground of the main appeal, in so far as the Council claims that the action brought at first instance by GE and RFA on behalf of the four sampled US producers is inadmissible, it will also be necessary, in my view, to dismiss the second part of the second ground of the main appeal.

3.      The third part of the second ground of appeal, alleging misinterpretation of the term ‘impracticable’, within the meaning of Article 9(5) of the basic regulation

(a)    Arguments of the parties

219. In the Council’s view, the General Court misinterpreted the term ‘impracticable’ in Article 9(5) of the basic regulation and Article 9.2 of the WTO Anti-Dumping Agreement.

220. The Council claims that the General Court erred in law in finding, in paragraph 225 of the judgment under appeal, that ‘it does not follow from the WTO Anti-Dumping Agreement that there is an exception to the obligation to impose an individual anti-dumping duty on a sampled producer which cooperated in the investigation where the institutions consider that they are unable to establish an individual export price for that producer’. Indeed, the General Court’s analysis in that regard is based on the interpretation of Article 6.10 of the WTO Anti-Dumping Agreement adopted in the Report in the ‘fasteners’ case. However, that interpretation is irrelevant, since Article 9(5) of the basic regulation does not transpose that provision.

221. The same applies as regards the General Court’s finding in paragraph 233 of the judgment under appeal.

222. The Commission contends that the General Court failed to address the substantive argument put forward by the institutions, according to which it was impracticable to establish an export price in a situation in which the producer does not export, and on the contrary considered that such an interpretation is incompatible with Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement. Such an interpretation is incompatible with the provisions of Article 9(5) of the basic regulation. The Commission, which states that the Council has previously explained in what way the interpretation of the term ‘impracticable’, adopted by the General Court in paragraphs 213 to 244 of the judgment under appeal, is contrary to Article 9(5) of the basic regulation, endeavours to show how it is also contrary to Article 9.2 of the WTO Anti-Dumping Agreement. If the term ‘impracticable’ were to be restricted to suppliers not included in the sample, that provision would be rendered ineffective, as the Commission previously argued in the communication it submitted in the procedure leading to the adoption of the Report in the ‘fasteners’ case. Moreover, the arguments submitted were not rejected by that report. The contrary view, taken by the General Court in paragraphs 222 to 225 of the judgment under appeal, is lacking any foundation in law.

223. GE and RFA are of the view that the General Court did not misinterpret the term ‘impracticable’, within the meaning of Article 9(5) of the basic regulation.

(b)    Assessment

224. As I have already highlighted, Article 9(5) of the basic regulation provides that the regulation imposing an anti-dumping duty is to specify the duty imposed for each supplier, unless this is ‘impracticable’, in which case only the name the supplying country concerned is required.

225. According to Article 9.2 of the WTO Anti-Dumping Agreement, when an anti-dumping duty is imposed, the (investigating) authorities are to name the supplier or suppliers of the product concerned except where several suppliers from the same country are involved and it is ‘impracticable’ to name all those suppliers, in which case the authorities may name the supplying country concerned.

226. In addition, Article 6.10 of the WTO Anti-Dumping Agreement requires, in principle, that the authorities determine an individual dumping margin for each known exporter or producer concerned, unless the number, in particular, of exporters or producers is so large as to make such a determination ‘impracticable’, in which case the authorities may limit their examination to a reasonable number of interested parties or products by using sampling.

227. By the present part, the Council and the Commission criticise, in essence, the General Court (a) for having considered that the term ‘impracticable’ used in Article 6.10 of the WTO Anti-Dumping Agreement had a bearing on the scope of the same term as used in Article 9.2 of that agreement and (b) for having interpreted the term ‘impracticable’ in Article 9(5) of the basic regulation by analogy with the same term as used in the aforementioned articles of the WTO Anti-Dumping Agreement. According to the institutions, in adopting such an approach, the General Court rendered Article 9(5) of the basic regulation ineffective, by restricting the cases in which it is impracticable to determine an individual anti-dumping duty and an individual dumping margin to the situation of non-sampled producers.

228. I am not convinced by the institutions’ criticisms of the reasoning put forward by the General Court concerning the interpretation and scope of the term ‘impracticable’.

229. As regards, in the first place, the examination of the provisions of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, I would first point out that, in paragraphs 217 to 224 of the judgment under appeal, the General Court confined itself to reproducing the relevant paragraphs of the report in the ‘fasteners’ case. Neither the Council nor the Commission alleges that the General Court distorted those paragraphs of that report, that is to say adopted an interpretation manifestly at odds with the content of that document (37) or that it omitted or selected certain passages of that report, thereby creating a manifestly misleading and incorrect impression of its content. (38)

230. Moreover, I note that the General Court accurately summarised those paragraphs of the Report in the ‘fasteners’ case. In particular, the General Court was quite correct to point out, in paragraph 220 of the judgment under appeal, that any exception to the general rule laid down in the first sentence of Article 6.10 of the WTO Anti-Dumping Agreement had to be specified in the covered agreements. Similarly, in paragraph 222 of the judgment under appeal, the General Court recalled that the Appellate Body had explained that there is a ‘significant parallelism’ between Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement and that, since the term ‘impracticable’ is used in both to describe when the exception applies, that term indicates that both exceptions refer to a situation in which an authority determines dumping margins based on sampling.

231. Admittedly, as the General Court pointed out in paragraph 222 of the judgment under appeal, the WTO Appellate Body also observed that the question before it did not concern the scope of the exception provided for in Article 9.2 of the WTO Anti-Dumping Agreement or whether that exception and the exception provided for in Article 6.10 of that agreement overlapped exactly. (39) However, as the General Court also pointed out in paragraph 223 of the judgment under appeal, the Appellate Body concluded, in paragraph 354 of the Report in the ‘fasteners’ case, that Article 9.2 of the WTO Anti-Dumping Agreement requires the authorities to specify the duties imposed on each supplier, except where this is impracticable, when several suppliers are involved. The General Court was also correct to recall that, in paragraph 376 of the Report in the ‘fasteners’ case, the Appellate Body had stated that Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement do not preclude an investigating authority from determining a single dumping margin and a single dumping duty for a number of exporters if it establishes that they constitute a single entity for the purposes of applying those provisions.

232. Finally, in paragraph 225 of the judgment under appeal, the General Court determined the legal consequences of the interpretation of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, as adopted by the Appellate Body in the Report in the ‘fasteners’ case. Accordingly, the General Court pointed out that it was apparent from that report that, ‘where the [investigating] authority uses sampling — as in the present case — the [WTO] anti-dumping agreement establishes the obligation to determine individual dumping margins and to impose individual anti-dumping duties for each supplier cooperating in the investigation and that there are, in principle, exceptions to that obligation, first, in the case of producers or exporters not included in the sample … and, second, in the case of operators constituting a single entity. However, it does not follow from the WTO Anti-Dumping Agreement that there is an exception to the obligation to impose an individual anti-dumping duty on a sampled producer which cooperated in the investigation where the institutions consider that they are unable to establish an individual export price for that producer’.

233. Although it is true that the institutions express their disagreement with such an assessment, they by no means show that the conclusion reached by the General Court from its reading of the interpretation adopted by the Appellate Body in the Report in the ‘fasteners’ case distorted its analysis or, at the very least, resulted in a misinterpretation of Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. The Council’s argument that Article 6.10 of the WTO Anti-Dumping Agreement is irrelevant must clearly be rejected, since it merely seeks to call into question the Appellate Body’s assessment in the Report in the ‘fasteners’ case concerning the relationship between that article and Article 9.2 of the WTO Anti-Dumping Agreement. The same is true of the Commission’s complaint criticising the General Court for failing to take into account the Commission’s analysis of Article 9.2 of the WTO Anti-Dumping Agreement, in particular the term ‘impracticable’, in the memorandum it submitted to the Appellate Body in the ‘fasteners’ case. In particular, as is clear from paragraphs 346 to 348 of the report of the Appellate Body, the Commission’s argument that ‘impracticable’ means ‘ineffective’ was clearly rejected by the Appellate Body. (40) As the General Court pointed out in paragraph 222 of the judgment under appeal, the Appellate Body found that there was significant parallelism between Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement, which may fully justify, in my view, the conclusion reached by the General Court in paragraph 225 of the judgment under appeal.

234. In the second place, as regards the interpretation of Article 9(5) of the basic regulation, the General Court essentially rejected the Council’s argument that the adjective ‘impracticable’ must be understood in a wide sense so as to give the institutions a broad discretion as regards the possibility of not imposing individual anti-dumping duties. The General Court stated that Article 9(5) of the basic regulation was to be interpreted in a manner consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement, implying, therefore, that the adjective ‘impracticable’ used in those three articles had a similar meaning and that an exception to the determination of individual dumping margins and the imposition of individual anti-dumping duties, to which that term relates, where the institutions use sampling, as in the present case, is possible only in respect of undertakings which do not form part of a sample and which do not otherwise have a right to have their own individual anti-dumping duty (see paragraphs 227 to 232 of the judgment under appeal).

235. In view of the fact that, first, as I stated in response to the first part of the second ground of the main appeal, the General Court was fully entitled to hold that Article 9(5) of the basic regulation should be interpreted in a manner consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement and that, second, the institutions have in no way shown that the adjective ‘impracticable’ in Article 9(5) of the basic regulation could have only a meaning and scope diametrically opposed to the meaning and scope given to the same adjective in Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement, so that the General Court gave an interpretation of the provision of secondary EU legislation which was contra legem, I consider that the arguments put forward by the institutions must be rejected.

236. I would add that, contrary to what the Commission has also argued, by adopting a strict interpretation of the exception to which the term ‘impracticable’ applies, the General Court has in no way deprived Article 9(5) of the basic regulation of all practical effect. As the General Court itself stated in paragraph 232 of the judgment under appeal, the exception, by reason of its impracticability, to the determination, in principle, of an individual dumping margin and an individual anti-dumping duty, is applicable not only to producers or exporters not included in a sample but also to those constituting a single entity. Moreover, the strict interpretation of an exception to a rule laid down by a provision of EU law granting rights to natural or legal persons is consistent with the EU judicature’s method of interpreting exceptions. In that regard, I am particularly sympathetic to the General Court’s argument, set out in paragraph 228 of the judgment under appeal, which has not been the subject of specific criticism on the part of the institutions, that endorsing a ‘broader’ interpretation of the term ‘impracticable’, as argued by the Council, would allow the Council an extremely broad discretion as regards the possibility of not imposing individual anti-dumping duties.

237. Accordingly, I consider that the institutions have failed to show that, by adopting an interpretation of the term ‘impracticable’, as contained in Article 9(5) of the basic regulation, analogous to the interpretation of that term as contained in Articles 6.10 and 9.2 of the WTO Anti-dumping Agreement, the General Court committed an error of law which vitiates the judgment under appeal.

238. In those circumstances, I propose that the third part of the second ground of the main appeal, and consequently that ground in its entirety, be dismissed.

E.      The third ground of the main appeal, alleging a distortion of the facts that led the General Court to conclude that the calculation of individual duties was ‘practicable’

1.      Summary of the arguments of the parties

239. The Council points out that, in paragraphs 202 to 211 and 242 to 245 of the judgment under appeal, the General Court asserted that it was not impracticable to apply individual anti-dumping duties, inasmuch as the Commission could have reconstructed the prices charged by the sampled US producers. The Council argues that, in making those assertions, the General Court made materially inaccurate findings of fact and distorted the evidence presented to it. Indeed, since bioethanol from several US producers was blended by unrelated traders/blenders before being exported, it was not possible to trace either the normal value or the export price for each producer, as demonstrated by the institutions. Since the data provided by the producers could not be used for the purpose of calculating the dumping margin, the General Court erred in law in disregarding that evidence of the manifestly impracticable nature of such a calculation.

240. The Commission takes the view that the Council has clearly and precisely defined how the General Court distorted the facts. Since the unrelated traders/blenders blended bioethanol from different domestic producers to obtain a single blend, it was impossible to determine individual export prices. Moreover, it would have made no sense, from a practical point of view, to determine an export price and an individual dumping margin, because the customs authorities would have had no means of applying such a margin.

241. GE and RFA claim that the Council’s third ground of appeal is inadmissible, in so far as it fails to provide a comprehensible statement of the facts and law on which it is based, in breach of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union. In their view, the Council merely reiterates that the calculation of individual dumping margins for the sampled US producers was impracticable, but does not explain how the General Court distorted the evidence in reaching a different conclusion. The mere fact that bioethanol is blended prior to export does not in itself prove that such a calculation is manifestly impracticable or impossible.

242. They go on to argue that the General Court explained clearly and simply, in paragraphs 242 and 243 of the judgment under appeal, how to calculate in practice dumping margins in the event of difficulties in determining the normal value or the export price for certain producers or exporters. Since the Council has not disputed those arguments or explained how the General Court distorted the evidence, they submit that that ground of appeal should be dismissed as unfounded.

2.      Assessment

243. The Council, supported by the Commission, alleges that the General Court distorted the facts when it held, in paragraphs 242 to 245 of the judgment under appeal, that the Council was wrong to conclude that the imposition of individual anti-dumping duties for the sampled US producers of bioethanol was ‘impracticable’, within the meaning of Article 9(5) of the basic regulation.

244. I am not convinced by that complaint.

245. It is important, first of all, to recall that there were two stages in the line of reasoning which led the General Court to conclude that the Council had made an error. First, in paragraphs 239 and 240 of the judgment under appeal, the General Court stated, on the one hand, that the Council had based the exception to the rule that dumping margins are to be determined and anti-dumping duties imposed on an individual basis on grounds other than the exception for non-sampled producers or exporters or the exception for operators constituting a single entity and, on the other hand, that the Council has not claimed that the exception which it applied was based on another exception deriving from the WTO agreements. Secondly, as evidenced by the assessment in paragraphs 242 to 245 of the judgment under appeal, the General Court again explained, in particular by reference to paragraphs 202 to 211 of the judgment under appeal, the reasons why the institutions’ arguments concerning the difficulties connected with determining the normal value and the export price of certain producers, as well as the difficulties related to the possibility of tracing the products of the four sampled US producers, did not justify exempting those institutions from the obligation to calculate an individual dumping margin and an anti-dumping duty for those producers. In the light of those considerations, the General Court therefore concluded that there was no basis for the institutions’ conclusion that, in this case, the imposition of individual anti-dumping duties was ‘impracticable’, within the meaning of Article 9(5) of the basic regulation.

246. Since the first part of the General Court’s reasoning, set out in paragraphs 239 to 240 of the judgment under appeal, is not the subject of the Council’s criticisms, or since those criticisms, which largely overlap with those put forward in the second ground of the main appeal, should, in my view, be rejected, the assessment contained in those two paragraphs of the judgment under appeal constitutes a sufficient basis, in my opinion, for dismissing the third ground of appeal.

247. In any event, in addition to the fact that the third ground of the main appeal also seeks to establish an error of reasoning or a misinterpretation of the provisions of the basic regulation, rather than any distortion of the facts by the General Court, I consider, as I have already stated in point 217 of this Opinion, that there is no such error in the considerations of the General Court set out in paragraph 242 of the judgment under appeal relating to the difficulties in determining the normal value and the export price. In my view, therefore, the assessment set out in paragraphs 239 to 242 of the judgment under appeal necessarily means that the alleged distortion of the facts relied on by the Council in its third ground of appeal must be rejected.

248. Accordingly, I propose that that ground be dismissed.

V.      The action before the General Court

249. As I stated in points 102 and 142 of this Opinion, respectively, I consider that the first part of the first ground of the main appeal and the second part of the second ground of the cross-appeal should be upheld. Accordingly, the judgment under appeal should, in my view, be set aside to that extent.

250. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

251. I consider that the Court is in a position to rule on the admissibility, which is disputed by the Council, of the action at first instance brought by GE and RFA on behalf of the four sampled US producers of bioethanol. In that regard, it is sufficient to find, in my view, that the action brought by GE and RFA is inadmissible, since those associations have failed to demonstrate that those producers were directly affected, for the purposes of the fourth paragraph of Article 263 TFEU, by the anti-dumping duties imposed by the regulation at issue.

252. However, as regards the standing of GE and RFA to bring proceedings on behalf of Murex and CHS, as the parties did not fully adopt a position on that issue in the proceedings at first instance, in particular as to whether those two unrelated traders/blenders were directly and individually concerned by the regulation at issue, the state of the proceedings does not permit the Court to give final judgment on that issue.

253. Accordingly, I consider that the present case should be referred back to the General Court for a decision on the admissibility of the action brought by GE and RFA on behalf of Murex and CHS and, if necessary, on any relevant plea as to the substance.

254. In those circumstances, it is appropriate to reserve the costs.

VI.    Conclusion

255. In the light of the foregoing considerations, I propose that the Court should:

1.      Set aside the judgment of the General Court of the European Union of 9 June 2016, Growth Energy and Renewable Fuels Association v Council (T‑276/13, EU:T:2016:340);

2.      Dismiss the action at first instance as inadmissible in so far as it concerns Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC.

3.      Refer the case back to the General Court of the European Union in so far as it concerns the admissibility of the action brought by Growth Energy and Renewable Fuels Association on behalf of Murex and CHS, respectively.

4.      Reserve the decision as to costs.

1      Original language: French.

2      OJ 2013 L 49, p. 10; (‘the regulation at issue’).

3      OJ 2009 L 343, p. 51.

4      OJ 1994 L 336, p. 103.

5      OJ 2011 C 345, p. 7.

6      Unlike the four other producers represented by GE and RFA before the General Court, Marquis Energy brought its own action for annulment of Regulation No 157/2013, which was upheld by the General Court in the judgment of 9 June 2016, Marquis Energy v Council (T‑277/13, not published, EU:T:2016:343). The appeal against that judgment is examined in my Opinion delivered today in Case C‑466/16 P Council v Marquis Energy.

7      See footnote 6.

8      Judgments of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission (C‑449/14 P, EU:C:2016:848, paragraphs 99 to 101), and of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402, paragraph 20).

9      As the Commission acknowledged in its response, that ground seeking the setting aside of the judgment does not relate to the parts of the judgment under appeal and its operative part concerning the admissibility of the action brought by GE and RFA in their own name.

10      See, to that effect, judgments of 29 April 2004, Italy v Commission (C‑298/00 P, EU:C:2004:240, paragraph 35), and of 27 February 2014, Stichting Woonlinie and Others v Commission (C‑133/12 P, EU:C:2014:105, paragraph 32 and the case-law cited). I would also point out that Article 150 of the Court’s Rules of Procedure states that the Court may at any time, of its own motion, decide to rule on whether there exists any absolute bar to proceeding with a case.

11      See, to that effect, inter alia, judgment of 13 October 2011, Deutsche Post and Germany v Commission (C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66), and order of 10 March 2016, SolarWorld v Commission (C‑142/15 P, not published, EU:C:2016:163, paragraph 22 and the case-law cited).

12      See, in particular, to that effect, judgments of 14 March 1990, Gestetner Holdings v Council and Commission (C‑156/87, EU:C:1990:116, paragraph 17), and of 16 April 2015, TMK Europe (C‑143/14), EU:C:2015:236, paragraph 19 and the case-law cited).

13      See, to that effect, judgment of 28 February 2002, BSC Footwear Supplies and Others v Council (T‑598/97, EU:T:2002:52, paragraph 61), and order of 7 March 2014, FESI v Council (T‑134/10, not published, EU:T:2014:143, paragraph 58).

14      See, in particular, to that effect, judgment of 17 March 2016, Portmeirion Group (C‑232/14, EU:C:2016:180, paragraphs 23 to 32 and the case-law cited). For the record, I would point out that, in that context, the Court has sole jurisdiction to declare an act of the European Union invalid and that it is incumbent on a court whose decisions are not subject to judicial review under domestic law to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity if that court considers that one or more pleas alleging invalidity raised before it are well founded: see, in particular, to that effect, judgments of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraphs 27 to 32); of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284, paragraphs 44 to 48); and of 13 March 2018, European Union Copper Task Force v Commission (C‑384/16 P, EU:C:2018:176, paragraph 115).

15      Pursuant, in particular, to the Decision of the Court of Justice of 13 September 2011 on the lodging and service of procedural documents by means of e-Curia (OJ 2011 C 289, p. 7).

16      See, in particular, to that effect, judgments of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 56), and of 13 March 2018, European Union Copper Task Force v Commission (C‑384/16 P, EU:C:2018:176, paragraph 87).

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

18      See, to that effect, judgment of 11 June 2009, Confservizi v Commission (T‑292/02, EU:T:2009:188, paragraph 55), and order of 29 March 2012, Asociación Española de Banca v Commission (T‑236/10, EU:T:2012:176, paragraph 25).

19      Emphasis added.

20      See, judgments of 4 October 1983, Fediol v Commission (191/82, EU:C:1983:259, paragraph 31), and of 1 April 2004, Commission v Jégo-Quéré (C‑263/02 P, EU:C:2004:210, paragraph 47); see also, orders of 17 February 2009, Galileo Lebensmittel v Commission (C‑483/07 P, EU:C:2009:95, paragraph 53), and of 5 May 2009, WWF-UK v Council (C‑355/08 P, not published, EU:C:2009:286, paragraph 43 and the case-law cited).

21      Order of 5 May 2009, WWF-UK v Council (C‑355/08 P, not published, EU:C:2009:286, paragraph 44).

22      See, to that effect, order of 5 May 2009, WWF-UK v Council (C‑355/08 P, not published, EU:C:2009:286, paragraphs 47 and 48).

23      See, to that effect, in particular, judgment of 13 March 2018, European Union Copper Task Force v Commission (C‑384/16 P, EU:C:2018:176, paragraph 88 and the case-law cited).

24      As summarised by the Court in the judgment of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435, paragraph 86).

25      See judgment of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435, paragraph 87 and the case-law cited).

26      Judgment of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435, paragraphs 88 to 92).

27      OJ 2012 L 237, p. 1.

28      Emphasis added.

29      See, to that effect, judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 91 and 92 and 97 and 98).

30      See, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal (C‑21/14 P, EU:C:2015:494, paragraph 46).

31      See, in particular, judgments of 7 June 2007, Řízení Letového Provozu (C‑335/05, EU:C:2007:321, paragraph 16), and of 10 November 2011, X and X BV (C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 44).

32      See, in particular, concerning the GATS, judgment of 7 June 2007, Řízení Letového Provozu (C‑335/05, EU:C:2007:321, paragraph 16 and the case-law cited), and concerning the Aarhus Convention, judgment of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraphs 45 and 51). See also my Opinion in Řízení Letového Provozu (C‑335/05, EU:C:2007:103, point 57).

33      See, to that effect, my Opinion inŘízení Letového Provozu (C‑335/05, EU:C:2007:103, point 58). The principle that the interpretation of a rule in a manner consistent with a higher-ranking provision cannot serve as the basis for an interpretation contra legem has been the subject matter of an extensive body of case-law, developed in the context of the relationship between EU law and national law: see, inter alia, judgments of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 39); and of 8 November 2016, Ognyanov (C‑554/14, EU:C:2016:835, paragraph 66).

34      See, in particular, judgment of 10 November 2011, X and X BV (C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 45 and the case-law cited).

35      In that regard, I note that the Commission accepted that there was a ‘close resemblance’ between the wording of the relevant provisions of Article 9(5) of the basic regulation (in particular the first subparagraph thereof) and the wording of Article 9.2 of the WTO Anti-Dumping Agreement. As regards the term ‘impracticable’, it is clear from the summary of the Council’s arguments before the General Court that the Council advocated that that term in Article 9(5) of the basic regulation be given a ‘more general’ interpretation than that which might follow from the interpretation of that term as used in Articles 9.2 and 6.10 of the WTO Anti-Dumping Agreement, in the light of the Report in the ‘fasteners’ case, and which was ultimately adopted by the General Court (see, in particular, paragraphs 215 and 227 of the judgment under appeal).

36      See, to that effect, judgment of 4 May 2017, RFA International v Commission (C‑239/15 P, not published, EU:C:2017:337, paragraphs 5 and 35).

37      See, to that effect, judgment of 11 July 2013, France v Commission (C‑601/11 P, EU:C:2013:465, paragraph 106).

38      See, to that effect, my Opinion in Joined Cases ArcelorMittal Tubular Products Ostrava and Others v Council and Council v Hubei Xinyegang Steel (C‑186/14 P and C‑193/14 P, EU:C:2015:767, paragraph 72).

39      The ‘fasteners’ case was concerned with the exclusion, as matter of principle, of any calculation of individual margins and duties for exporters and producers in non-market economy countries, as provided for in the second subparagraph of Article 9(5) of the basic regulation, which refers to Article 2(7) of that regulation, before it was amended by Regulation No 765/2012.

40      In paragraph 347 of the Report in the ‘fasteners’ case, the Appellate Body stated that ‘the notion of “ineffective” is not included in the notion of “impracticable”. In particular, we observe that the notion of “ineffective” is concerned with bringing about or producing an effect or result, which is absent from the notion of “impracticable”, which describes the action itself’. In paragraph 348 of that report, the Appellate Body stated that ‘Article 9.2, third sentence, allows Members to name the supplying country concerned only when it is impracticable to name individual suppliers; it does not permit naming the supplying country when the imposition of individual duties is ineffective because it may result in circumvention of the anti-dumping duties’.

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