CFI, 4th chamber, September 10, 2008, No T-348/05

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber)

Legal context

1 On 22 December 1995, the Council adopted Council Regulation (EC) No 384-96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1995 L 56, p. 1; 'the basic regulation').

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

'1. An anti-dumping duty may be applied to any dumped product whose release for free circulation in the Community causes injury.

2. A product is to be considered as being dumped if its export price to the Community is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.'

3 Under Article 3(2) of the basic regulation, '[a] determination of injury shall be based on positive evidence and shall involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and (b) the consequent impact of those imports on the Community industry'.

4 In accordance with Article 4(1) of the basic regulation, 'the term "Community industry" shall be interpreted as referring to the Community producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Community production of those products'.

5 The first subparagraph of Article 5(1) of the basic regulation provides that an 'investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Community industry'.

6 Pursuant to Article 5(4) of the basic regulation:

'An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Community producers of the like product, that the complaint has been made by or on behalf of the Community industry. The complaint shall be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated when Community producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the Community industry.'

7 Article 11(3) of the basic regulation states:

'The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review.

An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.

In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence.'

8 Finally, Article 13(1) and (3) of the basic regulation provides:

'1. Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries, of the like product, whether slightly modified or not; or to imports of the slightly modified like product from the country subject to measures; or parts thereof, when circumvention of the measures in force is taking place ... Circumvention shall be defined as a change in the pattern of trade between third countries and the Community or between individual companies in the country subject to measures and the Community, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2 ...

3. Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1 ...'

Background to the dispute

9 By Council Regulation (EC) No 658-2002 of 15 April 2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2002 L 102, p. 1), as amended by Council Regulation (EC) No 993-2004 of 17 May 2004, which also amends Council Regulation (EC) No 132-2001 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ammonium nitrate originating in Poland and Ukraine, and terminating the anti-dumping proceeding in respect of imports originating in Lithuania (OJ 2004 L 182, p. 28), the Council imposed a definitive anti-dumping duty of EUR 47.07 per tonne on imports of ammonium nitrate falling within CN codes 3102 30 90 and 3102 40 90 and originating in Russia.

10 Article 1(1) of that regulation states as follows:

'A definitive anti-dumping duty is hereby imposed on imports of [ammonium nitrate], falling within CN codes 3102 30 90 and 3102 40 90, originating in Russia.'

11 By Council Regulation (EC) No 132-2001 of 22 January 2001 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ammonium nitrate originating in Poland and Ukraine, and terminating the anti-dumping proceeding in respect of imports originating in Lithuania (OJ 2001 L 23, p. 1), as amended by Regulation No 993-2004, the Council, inter alia, imposed a definitive anti-dumping duty of EUR 33.25 per tonne on imports of ammonium nitrate falling within CN codes 3102 30 90 and 3102 40 90 and originating in Ukraine.

12 Article 1(1) of that regulation states as follows:

'A definitive anti-dumping duty is hereby imposed on imports of ammonium nitrate other than in aqueous solution and mixtures of ammonium nitrate with calcium carbonate or other inorganic non-fertilising substances, with a nitrogen content exceeding 28% by weight, falling within CN codes 3102 30 90 and 3102 40 90 and originating in ... Ukraine.'

13 Regulation No 658-2002 and Regulation No 132-2001 are referred to below, together, as 'the original regulations'. The expression 'original regulation' in the singular, refers to Regulation No 658-2002, as amended by Regulation No 953-2004.

14 On 15 March 2004, the Commission received a request from the European Fertiliser Manufacturers Association (EFMA) for a partial interim review of the existing measures ('the request for review'), made in accordance with Article 11(3) of the basic regulation. EFMA referred, in its request for review to new product types, defined as ammonium nitrate fertilisers with a nitrogen content exceeding 28% and up to 33% by weight, to which up to 5% of phosphate-based fertilising nutrients and up to 5% of potassium-based fertilising nutrients were added, mixed or processed (NP-NK-NPK fertiliser).

15 On 2 July 2004, the Commission initiated a partial interim review of the anti-dumping measures applicable to imports of ammonium nitrate originating in Russia and Ukraine pursuant to Article 11(3) of the basic regulation (OJ 2004 C 172, p. 2). The interim review was limited in scope to the definition of the product concerned.

16 In the context of that procedure, the Commission sent questionnaires to 16 producers/exporters in Russia and one in Ukraine, as well as to importers, users, producers and relevant associations in the Community.

17 The applicant, JSC Kirovo-Chepetsky Khimichesky Kombinat, is a company incorporated under Russian law, specialising in the production of fluoroplastics, chemicals, medical products and fertilisers, including ammonium nitrate. The applicant exports ammonium nitrate and other fertilisers to the European Community.

18 By facsimile of 4 August 2004, the applicant requested, firstly, an extension of the time-limit for submission of its response to the questionnaire and, secondly, a hearing by the Commission in accordance with point 6(b) of the notice of initiation and Article 6(5) of the basic regulation.

19 The applicant subsequently submitted to the Commission a response to the questionnaire.

20 On 24 August 2004, the applicant also submitted to the Commission comments on the request for review lodged by the EFMA.

21 On 4 February 2005, the Commission sent to the applicant a disclosure document setting out the essential facts and considerations on the basis of which it intended to propose to the Council the adoption of a regulation, and an annex to that document answering comments made by the applicant on 24 August 2004.

22 By letter of 16 February 2005, the applicant submitted its comments on the final disclosure document. In that letter, it also requested a hearing in accordance with the Article 6(5) of the basic regulation.

23 On 21 June 2005, following a proposal from the Commission, the Council adopted Council Regulation (EC) No 945-2005 amending Regulation (EC) No 658-2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132-2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of the basic regulation (OJ 2005 L 160, p. 1; 'the contested regulation').

24 Pursuant to Article 1 of the contested regulation:

'1. Article 1(1) of Regulation ... No 658-2002 shall be replaced by the following:

"1. A definitive anti-dumping duty is hereby imposed on imports of solid fertilisers with an ammonium nitrate content exceeding 80% by weight, falling within CN codes 3102 30 90, 3102 40 90, ex 3102 29 00, ex 3102 60 00, ex 3102 90 00, ex 3105 10 00, ex 3105 20 10, ex 3105 51 00, ex 3105 59 00 and ex 3105 90 91, and originating in Russia."

2. Article 1(1) of Regulation ... No 132-2001 shall be replaced by the following:

"1. A definitive anti-dumping duty is hereby imposed on imports of solid fertilisers with an ammonium nitrate content exceeding 80% by weight, falling within CN codes 3102 30 90, 3102 40 90, ex 3102 29 00, ex 3102 60 00, ex 3102 90 00, ex 3105 10 00, ex 3105 20 10, ex 3105 51 00, ex 3105 59 00 and ex 3105 90 91, and originating in Ukraine." ...'

25 By letter of 23 June 2005, the Commission replied to the arguments raised by the applicant in its letter of 16 February 2005.

Procedure and forms of order sought by the parties

26 By application lodged at the Court Registry on 14 September 2005, the applicant brought the present action.

27 By order of the President of the First Chamber of the Court of 6 February 2006, the Commission was granted leave to intervene in support of the form of order sought by the Council. However, it waived its right to submit written observations.

28 On hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to give written answers to certain questions. The parties complied with that request within the prescribed period.

29 The parties submitted oral argument and their answers to the questions put by the Court at the hearing on 16 January 2008.

30 The applicant claims that the Court should:

- annul the contested regulation;

- order the Council to pay the costs.

31 The Council contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

32 The Commission contends that the Court should dismiss the action.

Law

33 In support of its action, the applicant raises two pleas. The first alleges breach of Article 1(1) and (2), of Article 3(2), of Article 4(1) and of Article 5(4) of the basic regulation and of Community customs law. The second alleges breach of the rights of the defence.

Arguments of the parties

34 With regard to the first plea, the applicant alleges that the contested regulation extends the definition of the products in question laid down by the measures instituted by the original regulations ('the existing measures'). Consequently, the contested regulation provides for application of the existing measures to products other than the products in question ('the new product types'), thereby breaching Article 1(1) and (2), of Article 3(2), of Article 4(1) and of Article 5(4) of the basic regulation and Council Regulation (EEC) No 2913-92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and Commission Regulation (EEC) No 2454-93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913-92 (OJ 1993 L 253, p. 1). Furthermore, the approach adopted by the Community institutions in the contested regulation runs contrary to the Community practice in previous anti-dumping procedures.

35 In the first place, it is apparent from the very wording of Article 1(1) of the contested regulation that the definition of the products in question and the scope of the original regulation have been modified. The new definition of the product concerned covers not only ammonium nitrate containing a limited quantity of non-fertilising substances (referred to in the original regulation) but also ammonium nitrate containing other fertilising substances, which the Community institutions themselves recognised were not the product concerned. Thus, the contested regulation amends the original regulation in order that an anti-dumping duty could be imposed on imports of solid fertilisers with an ammonium nitrate content exceeding 80% by weight. According to the applicant, the category of solid fertilisers with an ammonium nitrate content exceeding 80% by weight is broader than that of ammonium nitrate and, accordingly, constitutes a different product.

36 In the second place, the Community institutions are not entitled to impose the existing measures on products other than the product concerned. It is clear from the wording of Articles 1(2), 3(2), 4(1) and 5(4) of the basic regulation that anti-dumping duties can be imposed only on imports of the product concerned, provided it has been found that that product is sold at dumped prices and that those dumped imports are causing injury to the Community industry. In those circumstances, the approach adopted in the contested regulation is unlawful, since it extends the existing measures to products which have not been subject to investigation and for which, consequently, no dumping and no injury to the Community industry has been found.

37 In that regard, the applicant takes the view that, since the new product types do not fall within the definition of the product concerned, it is impossible, firstly, to compare them with like products sold on the domestic market of the exporting country in order to assess whether the new product types are being dumped and, secondly, to assess whether imports of the new product types caused injury to Community producers of the like product. In other words, once a product falls outside the definition of the product concerned in an anti-dumping investigation, no anti-dumping duty can be applied to it at the outcome of that investigation. It is irrelevant that those products contain a certain quantity of the product concerned by the investigation.

38 The applicant observes that it is not legally possible to impose anti-dumping duties on a product contained in another product without, in effect, imposing the duties on the latter. That was perfectly understood by the Council since the operative part of the contested regulation did not impose the duties on the ammonium nitrate contained in the new product types, but rather imposed anti-dumping duties on imports of those products.

39 In that context, it is irrelevant whether the physical and chemical characteristics and, accordingly, the agronomic characteristics of the ammonium nitrate contained in the new product types are affected by the presence of phosphorus and/or of potassium. What matters in order to define the product concerned is not the fact that the physical and chemical characteristics of the ammonium nitrate contained in the new product types remain unchanged, but the fact that the physical and chemical characteristics of the new product types are different from the characteristics of the product concerned due to the presence of phosphorus and/or of potassium. The institutions established that the product concerned and the new product types do not share the same basic physical and chemical characteristics and cannot therefore be considered a single product, which means that the new product types do not fall within the definition of the product concerned within the meaning of the original regulation. Consequently, the institutions cannot extend the application of the existing measures to the new product types, even if the ammonium nitrate contained in the new product types has the same agronomic characteristics.

40 It is also irrelevant that farmers actually use the product concerned and the new product types for the same purposes. Even if that were the case, the fact that those products have different physical and chemical characteristics should have made it impossible for the Community institutions to conclude that the new product types should be included in the definition of the product concerned.

41 If the Community institutions took the view that the new product types were sold at dumped prices in the Community and that they were causing injury to the Community industry, they should have initiated an anti-dumping investigation under Article 5 of the basic regulation. If they had reasons to believe that the anti-dumping measures imposed against imports of ammonium nitrate originating in Russia and Ukraine were being circumvented by imports of the new product types, they could have sought the extension of those measures to those products by the initiation of an anti-circumvention investigation pursuant to Article 13 of the basic regulation. However, the Community institutions could not impose anti-dumping duties on products other than the product concerned by way of a partial interim review investigation initiated pursuant to Article 11(3) of the basic regulation.

42 In the third place, the applicant alleges that the approach adopted by the Community institutions in the contested regulation is contrary to the provisions of Regulation No 2913-92 and Regulation No 2454-93, which provide for the application of duties to specific products, as described in detail in the Common Customs Tariff (see Article 20(1) of Regulation No 2913-92).

43 In the fourth place, the approach adopted by the Community institutions is contrary to Community practice in previous anti-dumping procedures. In the past, the Community institutions have initiated, in a situation analogous to that of the present case in which ammonium nitrate is one of the components of the new product types, separate anti-dumping procedures against imports of certain parts or components, on the one hand, and against imports of products manufactured from such parts or components, on the other.

44 The Council and the applicant agree that it is not possible, in the context of a review, to extend the definition of the product concerned by the existing measures: a review cannot have the effect of applying existing measures to products which do not fall within the definition of the product concerned. Nevertheless, the contested regulation does not apply the existing measures to products which do not fall within the definition of the product concerned. In that regard, the Council states that the institutions decided not to extend the existing measures to the new product types, since they did not fall within the definition of the product concerned. However, the institutions took the view that the new product types contained the product concerned, that is to say, ammonium nitrate, and additional fertilising substances and elements and that the existing measures should therefore be applied to the product concerned contained in the new product types. At the hearing, the Council explained that duty was applied only to the ammonium nitrate contained in the new product types and that accordingly the duty was calculated per tonne. The percentage of ammonium nitrate was much lower in the new product types. The Council asserts that the applicant has not shown that those conclusions were based on incorrect facts or vitiated by a manifest error of assessment.

45 The Council takes the view that the applicant's allegation is flawed by its incorrect description of the product concerned by the existing measures and by the fact that it fails to distinguish between ammonium nitrate as a fertiliser and the chemical substance ammonium nitrate. It is clear from the operative part of the original regulations, in particular if read in connection with the product definition in their recitals, that the product concerned is ammonium nitrate, a solid fertiliser with a nitrogen content exceeding 28%. The institutions also clearly explained this in recitals 16 and 17 of the contested regulation. Consequently, the definition of the product concerned in the contested regulation is the same as that which appears in the original regulation, since, if the nitrogen content exceeds 28%, the ammonium nitrate content always exceeds 80%. Accordingly, the contested regulation did not extend the definition of the product concerned.

46 According to the Council, the institutions' findings were based on two considerations, which the applicant does not contest. Firstly, the institutions found that the presence of phosphorus and/or of potassium in an NP/NK/NPK fertiliser did not affect the agronomic characteristics of the nitrogen or ammonium nitrate. Secondly, on the basis of a market survey, the institutions established that during the investigation period, farmers used the products concerned and the new product types for the same purposes. The theoretical arguments concerning the effect of the presence of phosphorus on the use of the products, put forward by the applicant during the investigation and reiterated in the present proceedings, were, however, contradicted by the institutions' findings regarding the actual use of the products by the farmers during the investigation period, which showed that the presence of phosphorus and/or of potassium did not result in different uses. Neither during the investigation nor in its written submissions does the applicant contest the institutions' findings that farmers actually used the product concerned and the new product types for the same purposes and that they switched to the latter only because they were cheaper.

47 Furthermore, the applicant has not identified any general principle of Community law preventing the institutions from imposing anti-dumping duties on a product incorporated in another product and imported as an integral part thereof.

48 The Council submits that the applicant provides no support for its assertion that Article 1(3) and (4) of the contested regulation show that the institutions imposed a duty on the new product types and not on the product concerned contained in those products. It is clear from the wording of the operative part of the contested regulation that the product concerned is defined in Article 1(1) and (2) and that Article 1(3) and (4) merely sets the rate of duty. That conclusion is further reinforced by recital 36 of the contested regulation, which explains that Article 1(3) and (4) of that regulation concern the setting of the rates of duty on the imports of the products concerned contained in the new product types.

49 It follows from all the foregoing that the contested regulation does not extend but clarifies the definition of the product concerned. Specifically, the contested regulation does not apply the duties to the new product types but to the product concerned, also when it is included in NP/NK/NPK-type fertilisers.

50 The Council also takes the view that it is irrelevant that, in previous investigations, the institutions adopted separate measures as regards finished products and other parts, the facts in those cases not being comparable to those of the present case.

51 The Commission supports the Council's arguments.

Findings of the Court

52 In the present plea, the applicant submits, essentially, that the contested regulation breaches Article 11(3) of the basic regulation in that the Council, by way of an amendment allegedly intended to clarify the definition of the product concerned contained in the original regulations, has extended the existing measures to products other than the product concerned.

53 In that regard, it is appropriate to make the following preliminary observations.

54 Two matters are not disputed by the parties. Firstly, the Council and the applicant rightly agree that it is not possible, in the context of a review under Article 11(3) of the basic regulation, to extend the definition of the product concerned by the existing measures and that such a review cannot have the effect of making those measures applicable to products which do not fall within the definition of the product concerned. Secondly, the applicant and the Council, again rightly, agree that the product concerned by the original regulations and the new product types referred to in the contested regulation are not the same.

55 Moreover, it should be noted that the product concerned by the original regulations is ammonium nitrate originating in Russia and Ukraine, falling within CN codes 3102 30 90 (ammonium nitrate other than in aqueous solutions) and 3102 40 90 (mixtures of ammonium nitrate with calcium carbonate or other inorganic non-fertilising substances, with a nitrogen content exceeding 28% by weight). Ammonium nitrate is a solid nitrogen fertiliser commonly used in agriculture. It is manufactured from ammonia and nitric acid, and its nitrogen content exceeds 28% by weight in prilled or granular form (recital 16 of the contested regulation).

56 The product concerned always incorporates inorganic non-fertilising substances, necessary as a stabiliser. Occasionally, it can also incorporate secondary nutrients and/or micro-nutrients in very limited quantities. The presence of inorganic non-fertilising substances, secondary nutrients and/or micro-nutrients can be considered as marginal and does not have any influence on the customs classification of the product concerned. In the contested regulation, the 'product concerned' means ammonium nitrate, inclusive of those substances and/or nutrients ('marginal substances and/or nutrients') (recital 17 of the contested regulation).

57 In the contested regulation, the Council, firstly, concluded that, from a chemical and physical/agronomic point of view, the new product types mentioned in the request for review could not be considered to be the same as the product concerned because of the presence of primary nutrients other than nitrogen, namely phosphorous and/or potassium. However, the product concerned within the meaning of the original regulations and the new product types mentioned in the request for review were, according to the Council, identical in relation to their ammonium nitrate content - as long as it exceeded 80% by weight - the marginal substances and/or nutrients that they might contain, as well as their basic end-uses. Therefore, the ammonium nitrate content and the marginal substances and/or nutrients of the new product types mentioned in the request for review did not differentiate them from the product concerned that was referred to in the original regulations (recital 28 of the contested regulation).

58 Secondly, according to the Council, the new product types referred to in the contested regulation other than those mentioned in the request for review were identical to the product concerned in relation to their ammonium nitrate content - as long as it exceeded 80% by weight - the marginal substances and nutrients that they might contain, as well as their basic end-uses. Therefore, the ammonium nitrate content and the marginal substances and/or nutrients of the new product types referred to in the contested regulation other than those mentioned in the request for review did not differentiate them from the product concerned referred to in the original regulations (recital 33 of the contested regulation).

59 In the light of the findings set out in recitals 20 to 28 of the contested regulation, relating to the chemical and physical characteristics and to the end-uses of the product concerned within the meaning of the original regulations and of the new product types referred to in the request for review, and in recitals 29 to 33 of the contested regulation, relating to the chemical and physical characteristics and the end-uses of the product concerned within the meaning of the original regulations and of the new product types referred to in the contested regulation and other than those mentioned in the request for review, the Council concluded, in recital 35 of the contested regulation, that all the new product types referred to in the contested regulation should be considered as the product concerned exclusively in relation to their content of ammonium nitrate - as long as this exceeds 80% by weight - together with marginal substances and/or nutrients, but not as far as the primary nutrients phosphorus and potassium are concerned. The Council concluded therefrom that, in order to apply the existing measures only to the product concerned incorporated in all new product types referred to in the contested regulation, the proportional application of the existing measures appeared warranted.

60 In recital 38 of the contested regulation, the Council stated that its conclusions did not provide for the extension of the existing measures as such to new product types, but only their proportional application to the product concerned incorporated in the new product types.

61 In the light of these preliminary observations, it is a therefore necessary to determine whether the Council has the power, following a review procedure undertaken pursuant to Article 11(3) of the basic regulation, to apply anti-dumping measures initially imposed on a product concerned to that product when it is incorporated in another product type.

62 That question must be answered in the negative. A component of a finished product may, of course, be the subject of anti-dumping measures but, in that event, it must be regarded as being a product concerned as such. When that component is not considered in itself, but as an element of another product, it is that other product, with all its components, which constitutes the product concerned, and the anti-dumping investigation must accordingly relate to that product independently of those components. Only products which have been the subject of an anti-dumping investigation may be subject to anti-dumping measures, once it has been found that the products in question are exported to the Community at a price lower than the price of 'like products' within the meaning of Article 1 of the basic regulation. Consequently, since it is established that the new product types referred to in the contested regulation differ from the product concerned within the meaning of the original regulations, it is impossible to impose an anti-dumping duty on them without, first, carrying out an investigation in order to ascertain whether those products are also being dumped on the Community market.

63 In such a situation, in order to ascertain whether dumping is taking place, it is appropriate, under Article 5 of the basic regulation, to compare the product concerned, independently of its components, with like products sold on the market of the exporting country. Similarly, in order to determine whether the imports are harmful, it is necessary to examine the impact of those imports on Community manufacturers of the like product. The manufacturers of the product concerned taken as a whole are not necessarily the same as the manufacturers of the components of that product.

64 It follows from all the foregoing that the Council, by clarifying, in the context of an interim review, the definition of the product concerned contained in the original regulations in order to apply the existing measures to the product concerned incorporated in the new product types referred to in the contested regulation, went outside the framework laid down by the basic regulation for that procedure. Application of the existing measures to the new product types referred to in the contested regulation - those products, as such, and the product concerned referred to in the original regulations not being considered to be like products - constitutes a breach of Article 11(3) of the basic regulation.

65 It follows that the first plea is well founded and that, consequently, it is not necessary to consider the applicant's other arguments. Accordingly, the contested regulation must be annulled and there is no need to consider the second plea.

66 For the sake of completeness, it is appropriate to note that the fact of amending the original definition of the product concerned in order to extend the application of the existing measures to the new product types referred to in the contested regulation, even in proportion to their presence in the product concerned, is incompatible with the scheme of the basic regulation, in particular with the investigation procedure laid down in Article 13 of that regulation to combat circumvention of the measures in force.

67 It is apparent from the request for review that the EFMA submitted that the new product types to which it referred, which had the same physical and chemical characteristics and which were intended for the same end-uses as the product concerned within the meaning of the original regulations, had appeared on the market (see the initiation notice, point 4). According to the EFMA, the product concerned within the meaning of the original regulations and the new product types to which it referred should be considered as one and the same product.

68 Accordingly, the Council should have determined whether the new product types covered by the investigation, that is to say, solid fertilisers with an ammonium nitrate content exceeding 80% by weight together with other primary nutrients, could constitute 'like products' in relation to the product concerned within the meaning of Articles 1 and 13 of the basic regulation, instead of concluding, on the one hand, in recital 28 of the contested regulation, that the product concerned and the new product types referred to in the request for review were identical in relation to their ammonium nitrate content - as long as it exceeded 80% by weight - the marginal substances and/or nutrients that they might contain, as well as their basic end-uses and, on the other, in recital 33 of the contested regulation, that the product concerned and the new product types other than those mentioned in the request for review were identical in relation to their ammonium nitrate content - as long as it exceeded 80% by weight - the marginal substances and nutrients that they might contain, as well as their basic end-uses.

69 Article 13(1) and (3) of the basic regulation provides that, when circumvention of the measures in force is taking place by way of the import from third countries of like products, whether slightly modified or not, and of slightly modified like products from the country subject to measures or parts thereof, an investigation may be initiated with a view to examining the need to extend the measures in force to such like products.

70 Accordingly, the Council cannot circumvent the requirement for an investigation under Article 13 of the basic regulation by amending the definition of the product concerned in the course of applying Article 11(3) of that regulation.

Costs

71 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Council has been unsuccessful, it must be ordered to bear its own costs and pay those incurred by the applicant, as applied for by the applicant. The Commission is to bear its own costs in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, under which institutions which have intervened in the proceedings are to bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1. Annuls Council Regulation (EC) No 945-2005 of 21 June 2005 amending Regulation (EC) No 658-2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132-2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384-96;

2. Orders the Council to bear its own costs and those incurred by JSC Kirovo-Chepetsky Khimichesky Kombinat;

3. Orders the Commission to bear its own costs.