CELEX: 62019CJ0056
Appeal
Dumping
Imports of ferro-silicon originating in Russia
Regulation (EC) No 1225/2009
Article 11(9) and (10)
Rejection of applications for a refund of anti-dumping duties paid
Constructed export price
Assessment as to whether the anti-dumping duties have been reflected in the resale prices and subsequent selling prices in the European Union
Obligation to apply the same methodology as in the investigation which led to the imposition of the anti-dumping duty
Change in circumstances
Deduction of anti-dumping duties paid
Conclusive evidence

By its appeal, RFA International LP (‘RFA’) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 15 November 2018,
RFA International
v
Commission
(T‑113/15, not published, ‘the judgment under appeal’,
EU:T:2018:783
), by which the General Court dismissed its action for annulment in whole or in part of Commission Implementing Decisions C(2014) 9805 final, C(2014) 9806 final, C(2014) 9807 final, C(2014) 9808 final, C(2014) 9811 final, C(2014) 9812 final and C(2014) 9816 final of 18 December 2014 concerning applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia (‘the decisions at issue’).
Legal context
Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (
OJ 2009 L 343, p. 51
, and corrigenda
OJ 2010 L 7, p. 22
, and
OJ 2016 L 44, p. 20
), as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 (
OJ 2014 L 18, p. 1
) (‘the basic regulation’), which was in force on the date on which the decisions at issue were adopted, stated in recital 17:
‘… It is … appropriate to lay down that in any recalculation of dumping which necessitates a reconstruction of export prices, duties are not to be treated as a cost incurred between importation and resale where the said duty is being reflected in the prices of the products subject to measures in the Community.’
Article 2 of that regulation laid down the rules governing the determination as to whether dumping is being practised. Paragraphs 8 and 9 of that article related to the export prices and were worded as follows:
‘8.   The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Community.
9.   In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.
In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Community frontier level.
The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Community, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs; customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods; and a reasonable margin for selling, general and administrative costs and profit.’
Article 2(10) of that regulation provided as follows in respect of the comparison between the export price and the normal value:
‘A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. …’
Article 11(8) of that regulation governed the procedure for the reimbursement of duties collected. That provision was worded as follows:
‘Notwithstanding paragraph 2, an importer may request reimbursement of duties collected where it is shown that the dumping margin, on the basis of which duties were paid, has been eliminated, or reduced to a level which is below the level of the duty in force.
In requesting a refund of anti-dumping duties, the importer shall submit an application to the Commission. …
An application for refund shall only be considered to be duly supported by evidence where it contains precise information on the amount of refund of anti-dumping duties claimed and all customs documentation relating to the calculation and payment of such amount. It shall also include evidence, for a representative period, of normal values and export prices to the Community for the exporter or producer to which the duty applies. …
The Commission shall decide whether and to what extent the application should be granted, or it may decide at any time to initiate an interim review, whereupon the information and findings from such review carried out in accordance with the provisions applicable for such reviews shall be used to determine whether and to what extent a refund is justified. …’
Article 11(9) and (10) of the basic regulation made the following provision:
‘9.   In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.
10.   In any investigation carried [out] pursuant to this Article, the Commission shall examine the reliability of export prices in accordance with Article 2. However, where it is decided to construct the export price in accordance with Article 2(9), it shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Community.’
The Commission set out the guidelines for the application of Article 11(8) of the basic regulation in its Notice concerning the reimbursement of anti-dumping duties (
OJ 2014 C 164, p. 9
).
Point 4.1 (b) of that notice, entitled ‘Implementation of Article 11(10) of the basic Regulation’, states:
‘Where the export price is constructed under Article 2(9) of the basic Regulation, the Commission shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Union. The Commission will examine whether an increase in selling prices to independent Union customers between the original and refund investigation period incorporates the anti-dumping duties.’
Background to the dispute
The background to the dispute was set out in paragraphs 1 to 30 of the judgment under appeal and may be summarised as follows.
RFA is a limited partnership established in Canada. Acting through its Swiss subsidiary, it purchases, resells, imports and warehouses, within the European Union, ferro-silicon originating in Russia produced by two sister companies established in Russia, namely Chelyabinsk Electrometallurgical Integrated Plant OAO (‘CHEMK’) and Kuzneckie Ferrosplavy OAO (‘KF’).
On 25 February 2008, following a complaint lodged by the Comité de liaison des industries de ferroalliages (Liaison committee of the ferro-alloy industry), which is an association of European ferroalloy producers, the Council of the European Union adopted Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (
OJ 2008 L 55, p. 6
). As a result of the relationship of association existing between RFA and the two exporting companies referred to in the preceding paragraph, the export price to the European Union was determined in accordance with Article 2(9) of the basic regulation.
Under Article 1(2) of Regulation No 172/2008, the rate of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, was set at 22.7% for the products manufactured by CHEMK and KF.
Those companies brought an action before the General Court seeking annulment in part of Regulation No 172/2008, in so far as it concerned them. The action for annulment brought by those two companies against that regulation was dismissed by the General Court by judgment of 25 October 2011, CHEMK and KF v Council (
T‑190/08
,
EU:T:2011:618
). The appeal brought by those companies against that judgment was dismissed by the Court of Justice by judgment of 28 November 2013, CHEMK and KF v Council (
C‑13/12 P
, not published,
EU:C:2013:780
).
Following an application for a partial interim review made by those companies on 30 November 2009, the Council adopted, on 16 January 2012, Implementing Regulation (EU) No 60/2012 terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia (
OJ 2012 L 22, p. 1
). The anti-dumping measure in force was confirmed.
The maintenance, in that implementing regulation, of the level of the anti-dumping duty established by Regulation No 172/2008 was challenged by CHEMK and KF before the General Court, which dismissed their action by judgment of 28 April 2015, CHEMK and KF v Council (
T‑169/12
,
EU:T:2015:231
). The appeal brought by those companies against that judgment was dismissed by the Court of Justice by order of 9 June 2016, CHEMK and KF v Council (
C‑345/15 P
, not published,
EU:C:2016:433
).
Between 30 July 2009 and 10 December 2010, RFA submitted to the Commission, on the basis of Article 11(8) of the basic regulation, a first round of applications for a refund of anti-dumping duties which it had paid during the period from 7 January 2009 to 10 December 2010 for the imports of products of CHEMK and KF. The refund investigation related to the period from 1 October 2008 to 30 September 2010. In order to calculate new dumping margins, the Commission divided that period into two parts. The first part related to the period from 1 October 2008 to 30 September 2009 (‘the first refund investigation period’) and the second part related to the period from 1 October 2009 to 30 September 2010 (‘the second refund investigation period’).
By Commission Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final of 10 August 2012 concerning RFA’s applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia, the Commission granted the refund applications relating to the first refund investigation period and rejected those relating to the second refund investigation period. RFA challenged that refusal before the General Court, which dismissed the action by judgment of 17 March 2015, RFA International v Commission (
T‑466/12
,
EU:T:2015:151
). The appeal brought by RFA against that judgment was dismissed by the Court of Justice by judgment of 4 May 2017, RFA International v Commission (
C‑239/15 P
, not published,
EU:C:2017:337
).
Between 1 March 2011 and 26 June 2013, RFA submitted to the Commission a second round of applications for a refund of anti-dumping duties which it had paid during the period between 1 October 2010 and 28 December 2012 for the imports of the products of CHEMK and KF. The refund investigation opened by the Commission following that new application concerned the period from 1 October 2010 to 31 December 2012, which, for the calculation of new dumping margins, was divided into two parts, from 1 October 2010 to 31 December 2011 (‘the third refund investigation period’) and from 1 January 2012 to 31 December 2012 (‘the fourth refund investigation period’) respectively.
On 18 December 2014, the Commission adopted the decisions at issue. In the section relating to the construction of the export price, the Commission, inter alia, rejected RFA’s application under Article 11(10) of the basic regulation for the anti-dumping duties not to be deducted from the constructed export price. The reasons underlying that refusal were summarised by the General Court in paragraph 25 of the judgment under appeal as follows:
‘The Commission [indicated] that it could not grant the [appellant]’s application, based on Article 11(10) of the basic regulation …, that the anti-dumping duties should not be deducted from [the] first resale price to an independent buyer in the European Union when calculating the constructed export price. That application was based by the [appellant] on the assertion that those duties were duly reflected in that resale price, as had been recognised for the first and second refund investigation periods. The [appellant] maintained that its prices, determined at [“cost insurance and freight” (“CIF”)] level, had increased by 77% and 102% respectively between the investigation period that led to [Regulation No 172/2008], which covered the period from 1 October 2005 to 30 September 2006, and the third and fourth refund investigation periods. At the “ex works” level, those prices increased by 193% between the investigation period that led to [Regulation No 172/2008] and the third refund investigation period. However, unlike what had been the position for the first and second refund investigation periods, the Commission did not consider that it had evidence that those anti-dumping duties were reflected in the resale prices to independent buyers in the European Union. It emphasised that the prices submitted by the [appellant], established at “ex works” and [“CIF”] levels, were specifically prices that did not include anti-dumping duties and, moreover, that the “delivered duty paid” prices on first resale to an independent buyer in the European Union had to cover all upstream costs, including anti-dumping duties. However, the figures supplied by the [appellant] are unconvincing on that point in many respects, inter alia because they reflect averages and are therefore not specifically linked to the transactions in respect of which a refund of the anti-dumping duties was requested. As regards the third refund investigation period, the Commission observed that one of the producers was selling to the [appellant] at a loss on certain sales. It also observed inconsistencies concerning costs depending on the destination of the products. As regards the fourth refund investigation period …, the Commission [stated, in paragraphs 84 to 85 and 87 of the decisions at issue] that, in 99% of cases, the resale prices after import into the European Union did not reflect the anti-dumping duties because they did not cover [all] the costs, including the anti-dumping duty. The Commission added in that regard that between the investigation period that led to [Regulation No 172/2008] and the third refund investigation period, the production costs of products sold in the European Union by CHEMK and KF had increased by 100%, and by 109% for the fourth refund investigation period.’
In view of those elements and after making the necessary adjustments to ensure a fair comparison, in accordance with Article 2(10) of the basic regulation, between the export price and the normal value, which, in order to do so, the Commission reduced to the ‘ex works’ level, that institution identified a dumping margin of 40.8% for the third refund investigation period and one of 42.8% for the fourth refund investigation period. Since those dumping margins were higher than the anti-dumping duty of 22.7% established in Regulation No 172/2008, the Commission rejected the appellant’s applications for a refund.
On 28 November 2012, following the publication of a notice of impending expiry of the anti-dumping measures resulting from Regulation No 172/2008, the Liaison committee of the ferro-alloy industry requested the initiation of a review of those measures. Taking the view that sufficient evidence had been adduced for that purpose, the Commission published, on 28 February 2013, the notice of initiation of an expiry review of the anti-dumping measures applicable to imports of ferro-silicon originating in the People’s Republic of China and Russia (
OJ 2013 C 58, p. 15
). The investigation relating to the continuation or recurrence of dumping concerned the period from 1 January to 31 December 2012. The examination of the likelihood of a continuation or recurrence of injury was carried out with respect to the four-year period from 1 January 2009 to 31 December 2012.
On 9 April 2014, the Commission adopted Implementing Regulation (EU) No 360/2014 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China and Russia, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (
OJ 2014 L 107, p. 13
). In that implementing regulation, the Commission stated, inter alia, that, during the investigation period corresponding to 2012, in 99% of cases, the resale price to an independent buyer in the European Union did not reflect the level of the anti-dumping duties and that, in those circumstances, it was necessary to deduct them from that price in order to arrive at the constructed export price. A comparison between the normal value and the export price thus constructed, taking into account various adjustments in order to make a fair comparison in accordance with Article 2(10) of the basic regulation, led the Commission to conclude that the dumping margin, expressed as a percentage of the free-at-Union-frontier price before duty, was 43% for the investigation period relating to the continuation or recurrence of dumping from 1 January to 31 December 2012. Accordingly, it maintained the anti-dumping duty of 22.7% applicable to the exports of the products of CHEMK and KF since the entry into force of Regulation No 172/2008. The action brought by those two companies against that implementing regulation was dismissed by the General Court by judgment of 15 November 2018, CHEMK and KF v Commission (
T‑487/14
,
EU:T:2018:792
). No appeal has been brought against that judgment.
The procedure before the General Court and the judgment under appeal
By application lodged at the Registry of the General Court on 4 March 2015, RFA brought an action seeking annulment in whole or in part of the decisions at issue, relying on three pleas in law to that end. In its appeal, RFA addresses only the General Court’s response to the second of those pleas in law.
By that second plea in law, the appellant submitted, in essence, that the Commission, by changing the methodology used for assessing the reflection of the anti-dumping duties in resale prices in the European Union without that being justified by a change in circumstances, namely by determining those prices in the light of the production costs of ferro-silicon in Russia as those costs had been found to be at the time of the third and fourth refund investigation periods, instead of analysing the costs in the light of resale prices in the European Union as established in previous investigations and, in particular, in the interim review investigation which led to Implementing Regulation No 60/2012, infringed Article 11(9) and (10) of the basic regulation. According to RFA, the application of the same methodology as that used in that interim review should have led the Commission, in the calculation of the constructed export price, not to deduct the anti-dumping duties paid during the third and fourth refund investigation periods from the price of the first resale to an independent buyer in the European Union, since those duties were fully reflected in those latter prices.
By the judgment under appeal, the General Court dismissed the action in its entirety and ordered RFA to pay the costs. It found, inter alia, in its assessment of the second plea in law, as follows:
‘69
… [A]s regards the application of Article 11(10) of the basic regulation, it is justified, where the production costs of the products concerned have varied significantly between the investigation period previously taken into consideration and the new investigation period, for the Commission to take into account, in order to ascertain whether the anti-dumping duties are duly reflected in the resale prices of those products in the European Union during that latter period, not the resale prices established during the first of those periods, but the costs recorded during the new investigation period. Those considerations are valid even if it may be considered that there has been a change in methodology in relation to what was done in the context of an earlier investigation, as is true in the present case contrary to what the Commission principally claimed in the [decisions at issue] … .
Such a practice seeks to ensure solid analysis in the comparison of complex economic situations in order not only to justify the merits of the measures adopted under the anti-dumping legislation, but also to ensure, between the operators likely to be the subject of those measures, compliance with the general EU-law principle of equal treatment. While ensuring the solidity, in the economic analysis, of the comparison of the situation between two periods justifies, as a rule, the application of the same methodology, that is not the case if the relevant parameters have sufficiently changed to render the application of the methodology previously used inappropriate for the purpose of giving a reliable result, in this case in order to assess whether or not the anti-dumping duties were duly reflected in the resale prices and subsequent selling prices in the European Union (see, to that effect and by analogy, judgment of 18 September 2014, Valimar,
C‑374/12
,
EU:C:2014:2231
, paragraphs
and
). As the Commission contends, if the production costs have significantly increased between the two periods compared, an increase in the resale prices in the European Union, even if considerable, does not necessarily guarantee that the anti-dumping duties have been duly reflected, that is to say fully reflected, in the establishment of those prices. Production costs may have increased more than prices. In that case, even if the new prices are higher than the former prices plus anti-dumping duties, the interested parties do not duly incorporate the anti-dumping duties given the change in their production costs.
The arguments put forward by the [appellant] in the present case do not call into question that analysis. First of all, contrary to what the [appellant] essentially claims, Article 11(10) of the basic regulation in no way implies, in so far as it relates to the issue of whether “the duty is duly reflected in resale prices”, that only the equivalent of the anti-dumping duty should be incorporated into the new resale price over and above the resale price previously charged in order to benefit from a positive response. An additional duty in relation to the costs normally incurred is “duly reflected” only if it is added to those other costs. If those other costs increase, but the resale price increases by a lesser amount, the duty is in fact only partially added to those costs or not at all, even if the equivalent of the duty has been added to the resale price previously charged. The extract from the Commission Notice concerning the reimbursement of anti-dumping duties … in no way contradicts that analysis. The same is true of the judgment of 18 November 2015, Einhell Germany and Others v Commission (
T‑73/12
,
EU:T:2015:865
), relied on by the [appellant]. In particular, paragraph 155 of that judgment states, read in context, that a methodology other than the comparison of resale prices in the European Union charged before the institution of the anti-dumping duties and those charged subsequently may be appropriate to determine whether or not those duties are reflected in the new resale prices in the European Union.
As regards the actual facts of the present case, as far as the fourth refund investigation period is concerned, which corresponds to the year 2012, it must be pointed out that, in the [decisions at issue], for example in recital 85 of Decision C(2014) 9805 final, the Commission found that the production costs had increased significantly compared with the original investigation period, by 109%, without being disproved as to the substance by the [appellant], in particular in the present action. In those circumstances, in order to determine whether the anti-dumping duties were duly reflected in the resale prices in the European Union charged by the [appellant] on behalf of CHEMK and KF during the fourth refund investigation period, the Commission was justified in taking into account not the resale prices during the original period, but rather the production costs recorded in 2012.
In a situation where, as the Commission noted in the [decisions at issue], for example in recital 84 of Decision C(2014) 9805 final, only in 1% of cases [do] the resale prices in the European Union cover the cost of the products, inclusive of the anti-dumping duty, it is far from proven that those duties are in fact duly reflected in those prices.
Even the increase in the resale prices between the original investigation period and the fourth refund investigation period of over 100%, put forward by the [appellant], is insufficient in that context to show that the anti-dumping duties were fully reflected during the second of those periods. It is sufficient, as indicated in essence in paragraph 70 above, if the production costs have increased more than the prices charged in order for those prices not to reflect the anti-dumping duties duly, given the change in production costs. That is a priori proven by the fact, found by the Commission, that in 99% of cases the cost of the products, inclusive of anti-dumping duty, was not covered by the resale prices in the European Union in 2012.
The Commission was, therefore, right in deducting the anti-dumping duty from the resale price of the first independent buyer in the European Union in order to calculate the constructed export price for the fourth refund investigation period, since it was not proven that the anti-dumping duty was duly reflected in the first of those prices.
…
However, the Commission correctly contends, as it set out in the [decisions at issue], for example in recital 78 of Decision C(2014) 9805 final, that the analysis of the resale prices in the European Union in order to ascertain to what extent they reflect the anti-dumping duties must be carried out at the level of trade subsequent to the payment of those duties, that is to say, by definition, at a level of trade where the price takes into account additional costs compared with those selected at the “ex works” or [“CIF”] stage. It must be pointed out in that regard that, while it is provided for in the basic regulation that certain prices may be adjusted at a level of trade different from that at which they are normally charged, this is to ensure a fair comparison of the prices which do not necessarily reflect the same services. Accordingly, Article 2(10)(d) of the basic regulation … provides that a fair comparison between the export price and the normal value may require adjustments in order to take into account the differences in the levels of trade at which those prices are charged. That is not the case, however, in order to assess only the resale prices in the European Union in the context of Article 11(10) of the basic regulation, which does not provide for such adjustments. Moreover, inasmuch as the Commission is justified, in order to apply that provision, in certain situations such as the present case, in analysing the resale prices taking into account all the costs incurred before that resale … an analysis of prices established at the “ex works” or [“CIF”] stage, even artificially adding anti-dumping duties thereto as the [appellant] maintains was done – that is to say not taking into account some of the costs borne before that resale – would not be coherent. In addition, in those situations, there is no need to carry out a comparison of the resale prices in the European Union between two successive periods; such a comparison may be affected, as in the present case, by the differences in time of the levels of trade at which the importers of the products concerned invoiced them in respect of the first independent buyers in the European Union. It is, on the other hand, essential to verify whether the evidence put forward by the importer concerned proves that the price actually paid by those buyers during the period under examination duly reflects the anti-dumping duties. In that regard, it was found in the [decisions at issue], which is not disputed by the [appellant], that it then for the most part sold the products there on the basis of the “delivered duty paid” price, that is to say encompassing all the costs prior to delivery, which was such as to facilitate that verification.
Consequently, the [appellant] could not rely on the change in the prices brought back to the “ex works” or [“CIF”] stage, even increased by the anti-dumping duties, in order to show that it reflected, during the third refund investigation period, the anti-dumping duties in its resale prices in the European Union. It ought to have adduced evidence showing that its “delivered duty paid” prices charged during that period covered all the costs incurred at that stage for the products at issue, anti-dumping duties included, which it was unable to do. The Commission was, therefore, fully entitled to deduct the anti-dumping duty from the resale price to the first independent buyer in the European Union in order to calculate the constructed export price for the third refund investigation period, since it was not shown that the anti-dumping duty was duly reflected in the first of those prices. There is, consequently, no need to examine the arguments exchanged between the parties as to the reliability or method of calculation of those “ex works” and [“CIF”] prices. As regards the [appellant]’s assertion in the reply that even the comparison of the resale prices at the “delivered duty paid” stage would give a result that must lead to a partial refund of duties, it is not, in any event, sufficiently substantiated in order to be able to be taken into consideration in the context of the review of the lawfulness of the [decisions at issue] (see, to that effect, judgment of 17 March 2015, RFA International v Commission,
T‑466/12
,
EU:T:2015:151
, paragraph
and the case-law cited).
It follows from the foregoing that the [appellant]’s second plea in law, alleging an infringement of Article 11(9) and (10) of the basic regulation in the construction of the export price, is also unfounded.’
Forms of order sought by the parties
RFA claims that the Court should:
–
set aside the judgment under appeal;
–
give final judgment in the matter, where the state of the proceedings so permits;
–
in the alternative, refer the case back to the General Court for reconsideration; and
–
order the Commission to pay the costs incurred in the proceedings before the Court of Justice and the General Court.
The Commission contends that the Court should:
–
dismiss the appeal as unfounded; and
–
order RFA to pay the costs.
The appeal
RFA puts forward two grounds in support of its appeal. By its first ground of appeal, which relates to paragraphs 69 to 71 of the judgment under appeal, it alleges that the General Court vitiated that judgment by a failure to state reasons, made substantially inaccurate findings of fact and misinterpreted Article 11(9) of the basic regulation. By its second ground of appeal, which relates to paragraphs 72 to 75, 77 and 78 of the judgment under appeal, the appellant alleges that the General Court erred in law in the interpretation of Article 11(10) of that regulation.
The first ground of appeal
The first ground of appeal comprises two parts. By the first part of that ground of appeal, the appellant submits that the judgment under appeal is vitiated by a failure to state reasons, in that the General Court did not respond to its argument that there was no change in circumstances. By the second part of that ground of appeal, the appellant alleges that the General Court made substantially inaccurate findings of fact and erred in law in its interpretation of Article 11(9) of the basic regulation.
First part of the first ground of appeal, alleging infringement of the obligation to state reasons
–
Arguments of the parties
By the first part of its first ground of appeal, RFA alleges that the General Court failed to fulfil its obligation to state reasons in that, first, by condensing, in paragraphs 69 to 71 of the judgment under appeal, the reasons set out by the appellant concerning the Commission’s infringement of Article 11(9) of the basic regulation, the General Court failed to address the argument relating to the absence of a change in circumstances, within the meaning of that provision.
Second, the appellant submits that the General Court did not set out to the requisite legal standard, in the light of the requirements of Article 36 of the Statute of the Court of Justice of the European Union, the reasons why it reached its conclusion concerning Article 11(9) of the basic regulation.
The Commission contends that the first part of the first ground of appeal is unfounded.
–
Findings of the Court
According to settled case-law, the General Court’s duty, under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, to state reasons for its judgments does not require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to ascertain the reasons for the decision taken and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, judgments of 14 June 2016, Commission v McBride and Others,
C‑361/14 P
,
EU:C:2016:434
, paragraph
, and of 25 October 2017, PPG and SNF v ECHA,
C‑650/15 P
,
EU:C:2017:802
, paragraph
).
In the present case, it must be noted that, by referring, in paragraphs 69 to 71 of the judgment under appeal, to the significant increase in the production costs of ferro-silicon in Russia between the two investigation periods under consideration, the General Court did address the argument relating to the change in circumstances.
In addition, the General Court pointed out, in particular in paragraphs 69 and 70 of the judgment under appeal, the reasons underlying its conclusion concerning Article 11(9) of the basic regulation. First, referring to Article 11(10) of that regulation, the General Court held, in the first sentence of paragraph 69 of that judgment, that it was justified, where the production costs of the products concerned have varied significantly between the investigation period previously taken into consideration and the new investigation period, for the Commission to take into account, in order to ascertain whether the anti-dumping duties are duly reflected in the resale prices of those products in the European Union during that latter period, not the resale prices established during the first of those periods, but the costs recorded during the new investigation period. Second, the General Court, responding implicitly to the appellant’s argument alleging infringement of Article 11(9) of the basic regulation, held, in the second sentence of paragraph 69 of the judgment under appeal, that ‘those considerations are valid even if may be considered that there has been a change in methodology in relation to what was done in the context of an earlier investigation, as is true in the present case contrary to what the Commission principally claimed in the contested decisions’. To that end, the General Court set out, in paragraph 70 of that judgment, the reasons why a change of methodology was in any event justified.
In those circumstances, it must be held that, although it is true that the appellant’s arguments were examined briefly in the judgment under appeal, the fact remains that the General Court’s reasoning is clear and such as to enable both the Court of Justice to carry out its judicial review and the appellant to know why the General Court implicitly rejected its argument that no change in circumstances capable of justifying a change in methodology under Article 11(9) of the basic regulation had taken place between the two periods under consideration. It follows that the General Court thus fulfilled its obligation to state reasons.
That conclusion cannot be called into question by the fact that RFA disagrees with the analysis carried out by the General Court in paragraphs 69 to 71 of the judgment under appeal. The fact that RFA disagrees cannot establish the existence of a failure to state reasons in the judgment under appeal, where such a disagreement relates to whether that reasoning is well founded (see, to that effect, order of 14 April 2016, KS Sports v EUIPO,
C‑480/15 P
, not published,
EU:C:2016:266
, paragraph
and the case-law cited).
According to settled case-law, objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see, to that effect, judgment of 18 June 2015, Ipatau v Council,
C‑535/14 P
,
EU:C:2015:407
, paragraph
and the case-law cited).
In the light of the foregoing considerations, the first part of the first ground of appeal must be rejected as unfounded.
The second part of the first ground of appeal, alleging that the General Court erred in law in the interpretation of Article 11(9) of the basic regulation, and alleging substantially incorrect findings of fact
–
Arguments of the parties
By the second part of its first ground of appeal, RFA submits that the General Court, in paragraphs 69 to 71 of the judgment under appeal, erred in law in the interpretation of Article 11(9) of the basic regulation and, in addition, made substantially incorrect findings of fact.
In the first place, the appellant criticises the General Court on the ground that it erred in finding that the Commission was lawfully entitled to carry out an assessment of whether the anti-dumping duties had been reflected in the resale prices in the European Union, not in the light of the resale price identified at the time of the previous investigations, namely, in particular, the investigation which led to the adoption of Regulation No 172/2008 and the earlier refund investigations concerning the same measures, but in the light of the production costs of ferro-silicon in Russia. In doing so, the appellant argues, the Commission did not apply the same methodology as that previously used, without that being justified by a change in circumstances within the meaning of Article 11(9) of the basic regulation.
In that regard, RFA states that no change in circumstances capable of justifying the abandonment of the methodology previously used occurred in the present case. The change found by the General Court in paragraphs 69 to 71 of the judgment under appeal, associated with the increase in ferro-silicon production costs in Russia by more than 100%, existed and was already known to the Commission at the time of the previous investigations carried out between 2008 and 2010.
In that regard, the appellant submits, first, that, by relying on the Commission’s premiss that the increase in the production costs of the product in question occurred only during the third and fourth refund investigation periods, the General Court made substantially incorrect findings of fact in the contested paragraphs of the judgment under appeal. According to the appellant, those incorrect findings of fact led to incorrect legal rulings, which run counter to settled case-law according to which, if the alleged circumstances already existed during previous investigations, there is no change in circumstances within the meaning of Article 11(9) of the basic regulation (judgment of 3 May 2018, Distillerie Bonollo and Others v Council,
T‑431/12
,
EU:T:2018:251
).
Second, in its reply, the appellant argues that the General Court distorted the facts by holding that the increase in production costs, invoked by the Commission, occurred only during the third and fourth refund investigation periods preceding the adoption of the decisions at issue, whereas that increase already existed at the time of the investigations which took place between 2008 and 2010.
In the second place, the appellant, in essence, criticises the General Court on the ground that it did not find that the Commission had failed to meet the requirements of its burden of proof under the case-law relating to Article 11(9) of the basic regulation (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council,
C‑15/12 P
,
EU:C:2013:572
, paragraphs
and
), since it changed its methodology without, however, having demonstrated that the circumstances had changed.
In the third place, the appellant submits, in essence, that the reasons given by the General Court in paragraph 70 of the judgment under appeal indicate that the change in methodology was justified by the fact that the new methodology applied by the Commission in the context of the third and fourth refund investigation periods was ‘more appropriate’. In doing so, it argues, the General Court failed to have regard to the case-law according to which, in order to justify a change in method, it is not sufficient that a new method is more appropriate than the former method, where the latter is consistent with Article 2 of the basic regulation (judgment of 8 July 2008, Huvis v Council,
T‑221/05
, not published,
EU:T:2008:258
, paragraph
).
The appellant also criticises the General Court’s finding in paragraph 70 of the judgment under appeal that the change in methodology ensures both solid analysis in the comparison of complex economic situations and equal treatment between the operators likely to be the subject of those measures.
In the fourth place, RFA disputes the Commission’s argument that Article 11(9) of the basic regulation is not applicable in the present case, given that the question of a possible deduction of the paid anti-dumping duties from the export price could not arise in the original investigation which gave rise to Regulation No 172/2008.
According to the appellant, that argument of the Commission is both factually and legally incorrect.
That consideration, the appellant argues, is supported, from a factual point of view, by the very subject matter of the present appeal, in so far as it relates not to the construction of the export price, as interpreted by the Commission, but to the change in methodology, as regards the calculation of the dumping margin, between the original investigation which led to the adoption of Regulation No 172/2008 and the third and fourth refund investigation periods.
From a legal point of view, the appellant submits, first, that, if the Commission’s argument were to be accepted, it would have the effect of rendering Article 11(9) of the basic regulation ineffective, in so far as there would never be an original investigation with a constructed export price which, when being calculated, requires the anti-dumping duties to be taken into account. Second, the appellant submits that the Commissions’ covert attempt to substitute the reasoning is also legally flawed, since neither the Commission, whether in the administrative procedure preceding the adoption of the decisions at issue or even during the proceedings before the General Court, nor the latter suggested in any way that that provision did not apply in the present case.
The Commission contends that the second part of the first ground of appeal must be rejected as being, in part, inadmissible and, in part, ineffective or, in any event, unfounded.
–
Findings of the Court
Under Article 11(9) of the basic regulation, in all review investigations, the Commission must, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the imposition of the anti-dumping duty in question, with due account being taken of Article 2 of that regulation.
According to the Court’s case-law, the exception whereby the institutions may, in the review procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, since a derogation from or exception to a general rule must be interpreted narrowly (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council,
C‑15/12 P
,
EU:C:2013:572
, paragraph
and the case-law cited).
In that connection, it must be emphasised that the burden of proof lies with the institutions, which must prove that the circumstances have changed in order to apply, in the review or refund investigation, a method different from that implemented during the original investigation (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council,
C‑15/12 P
,
EU:C:2013:572
, paragraph
).
The requirement that a provision be interpreted strictly cannot, however, permit the institutions to interpret and apply that provision in a manner inconsistent with its wording and purpose (judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council,
C‑15/12 P
,
EU:C:2013:572
, paragraph
and the case-law cited).
In the present case, it must be noted that the difference in the Commission’s approach, as validated by the General Court in the first sentence of paragraph 69 of the judgment under appeal, according to which ‘it is justified, where the production costs of the products concerned have varied significantly between the investigation period previously taken into consideration and the new investigation period, for the Commission to take into account, in order to ascertain whether the anti-dumping duties are duly reflected in the resale prices of those products in the European Union during that latter period, not the resale prices established during the first of those periods, but the costs recorded during the new investigation period’, proceeds, not from a ‘change of methodology’ within the meaning of Article 11(9) of the basic regulation, but from a simple updating of the parameter relating to the production costs of the product in question.
In that regard, it should be noted, moreover, that clarification concerning that difference in the understanding of the reflection of the anti-dumping duties in the resale prices in the European Union was provided by the Commission in response to the written questions sent to it by the Court of Justice in the present proceedings. It thus stated as follows:
‘Depending on the specific circumstances of each case, there are several possible relevant points of comparison for the assessment of whether an increase in selling prices to independent Union customers incorporates the anti-dumping duties paid.
If the factual situation does not differ from that prevailing during the [original] investigation period of the proceedings which led to the [anti-dumping] duty, the first step is to limit the comparison to resale (and subsequent selling) prices from the refund investigation period with those from the original investigation period. However, that comparison between two revenues during different time-periods is only sufficient if the other factors that can influence the price level have remained the same as in the original investigation period as the prices may have decreased or increased independently of the imposition of anti-dumping duties.
Therefore, a second step, based on the comparison of costs, may be required when, in particular, a refund investigation or an interim review is taking place long after the original imposition of the anti-dumping duties. Indeed, in that case, the resale prices may have changed due to external factors (such as a change in export costs, an increase or decrease in raw material prices, price fluctuation due for instance to seasonality). … In cases where other factors have influenced the resale price, those other factors need to be distinguished from the potential impact of the anti-dumping duty in order to determine if such duty is indeed “reflected” in the resale price.’
It follows that the mere updating of the parameter relating to the production costs of the product in question, which the Commission carried out because of the significant increase in those costs between the investigation which led to Regulation No 172/2008 and the third and fourth refund investigation periods preceding the adoption of the decisions at issue, cannot be regarded as a change of methodology within the meaning of Article 11(9) of the basic regulation.
Accordingly, the General Court erred in law in finding, in paragraph 69 of the judgment under appeal, that there had been a change of methodology in relation to what was done in the context of an earlier investigation.
It must be borne in mind, however, that, if the grounds of a decision of the General Court reveal an infringement of EU law, but the operative part of the judgment under appeal can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
That is the situation in this case. As is apparent from paragraphs 57 to 59 of the present judgment, the same methodology within the meaning of Article 11(9) of the basic regulation was applied during the investigations concerned, with the result that the General Court was entitled to hold, in paragraph 79 of the judgment under appeal, that the plea alleging infringement of that provision had to be rejected.
The other arguments put forward by the appellant in the context of the second part of the first ground of appeal, all of which seek to call into question the General Court’s findings relating to the justified nature of the alleged change in methodology which the appellant claims that the Commission applied in the decisions at issue, are also ineffective for the reasons set out in paragraphs 57 to 59 of the present judgment.
In the light of all of the foregoing considerations, the second part of the first ground of appeal must be rejected as ineffective. Consequently, the first ground of appeal must be rejected in its entirety.
The second ground of appeal
The second ground of appeal, alleging an error of law in the interpretation of Article 11(10) of the basic regulation, comprises two parts. By the first part of that ground of appeal, the appellant criticises the General Court for applying, in the context of determining the new export prices, an incorrect legal test, under which those prices had to include not only the anti-dumping duties but also all the production costs of the product in question. By the second part of that ground of appeal, the appellant criticises the General Court for finding that, under the criteria thus drawn up, proof of the incorporation of the anti-dumping duties in the export prices could be adduced only by means of data relating to the ‘delivered duty paid’ prices.
The first part of the second ground of appeal, alleging that the General Court applied an incorrect legal test to determine the new export prices
–
Arguments of the parties
By the first part of its second ground of appeal, RFA submits that the General Court, in paragraphs 72 to 75 of the judgment under appeal, erred in law in its interpretation of Article 11(10) of the basic regulation, in that it held that the anti-dumping duties which RFA had paid during the third and fourth refund investigation periods were not duly reflected in the resale prices and subsequent selling prices in the European Union, given that the export prices did not cover all the production costs of the products in question.
According to the appellant, the conclusion reached by the General Court in those paragraphs is legally incorrect, since it is not supported either by the relevant provisions of the basic regulation, namely recital 17 and Article 11(10) of that regulation, or by Point 4.1(b) of the Commission Notice concerning the reimbursement of anti-dumping duties, or by the Commission’s decision-making practice.
According to the appellant, Article 11(10) of the basic regulation required only that the party requesting the refund submit conclusive evidence that the anti-dumping duties were duly reflected in the resale prices and subsequent selling prices in the European Union. That requirement would be satisfied if it could be established that the resale prices and subsequent selling prices in the European Union had sufficiently increased in comparison with the prices recorded during the original investigation period. Such an increase reflects the fact that those prices incorporated the anti-dumping duties.
The Commission contends that the first part of the second ground of appeal is, in part, inadmissible and, in part, ineffective and, in any event, unfounded.
–
Findings of the Court
Under the first subparagraph of Article 11(8) of the basic regulation, an importer may request reimbursement of duties collected where it is shown that the dumping margin, on the basis of which duties were paid, has been eliminated, or reduced to a level which is below the level of the duty in force.
In Article 11(10) of that regulation, the EU legislature provided for the possibility, in the context of the construction of the export price, within the meaning of Article 2(9) of that regulation, not to deduct from that price the amount corresponding to the anti-dumping duties paid ‘when conclusive evidence is provided that the [amount] is duly reflected in resale prices and the subsequent selling prices in the [European Union]’.
In the present case, the General Court observed, in paragraph 71 of the judgment under appeal, that ‘Article 11(10) of the basic regulation in no way implies, in so far as it relates to the issue of whether “the duty is duly reflected in resale prices”, that only the equivalent of the anti-dumping duty should be incorporated into the new resale price over and above the resale price previously charged in order to benefit from a positive response. An additional duty in relation to the costs normally incurred is “duly reflected” only if it is added to those other costs. If those other costs increase, but the resale price increases by a lesser amount, the duty is in fact only partially added to those costs or not at all, even if the equivalent of the duty has been added to the resale price previously charged’.
In paragraphs 72 to 74 of that judgment, the General Court explained why it took the view that the increase, highlighted by the appellant, of more than 100% in the resale prices of the product in question in the European Union between the original investigation and the fourth refund investigation period was not sufficient, in itself, to demonstrate that the anti-dumping duties had been fully reflected in those prices, stating, in particular, that ‘it is sufficient … if the production costs have increased more than the prices charged in order for those prices not to reflect the anti-dumping duties duly, given the change in production costs. That is a priori proven by the fact, found by the Commission, that in 99% of cases the cost of the products, inclusive of anti-dumping duty, was not covered by the resale prices in the European Union [during the fourth refund investigation period]’.
In the light of those factors, the General Court held, in paragraph 75 of that judgment, that the Commission had been correct in deducting the anti-dumping duties from the resale price paid by the first independent buyer in the European Union in order to calculate the constructed export price of the product in question for the fourth refund investigation period, since the appellant had not proven that those duties had been duly reflected in the first of those prices.
It should be noted, first of all, that, in so far as paragraphs 72 to 75 of the judgment under appeal, which are the only paragraphs contested by the appellant in the first part of the second ground of appeal, concern only the fourth refund investigation period, the arguments put forward by the appellant with regard to the third refund investigation period are ineffective.
Next, the appellant’s arguments referred to in paragraphs 66 and 68 of the present judgment must be rejected as inadmissible, since, first, they seek, as noted, in essence, by the Advocate General in points 82 and 83 of his Opinion, to call into question the purely factual assessments made by the General Court in paragraphs 72 to 75 of the judgment under appeal. However, in accordance with the Court’s settled case-law (see, to that effect, judgment of 26 March 2020, Larko v Commission,
C‑244/18 P
,
EU:C:2020:238
, paragraph
and the case-law cited), it is not for the Court, in the context of an appeal, to call into question such assessments, except where they stem from a distortion of the documents in the file, something which is not alleged in the present case.
Second, it must be observed that the arguments put forward by the appellant in that context do not include any legal argument demonstrating how the General Court erred in law. Those arguments therefore do not satisfy the requirements under case-law that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (see, to that effect, judgment of 7 November 2013, Wam Industriale v Commission,
C‑560/12 P
, not published,
EU:C:2013:726
, paragraph
).
It must also be noted that the appellant has not put forward any legal argument to demonstrate how the approach taken by the General Court in the contested paragraphs of the judgment under appeal in the context of the first part of the second ground of appeal departed from the provisions of the basic regulation referred to in paragraph 67 of the present judgment, or differed from Point 4.1(b) of the Commission Notice concerning the reimbursement of anti-dumping duties.
Finally, as regards the argument raised by RFA that that approach of the General Court is, in essence, contrary to the previous decision-making practice of the institutions, it is sufficient to note that, in accordance with settled case-law, the question of reflecting anti-dumping duties in the resale prices and subsequent selling prices in the European Union must be assessed solely in the context of Article 11(10) of the basic regulation and not in the light of an alleged earlier decision-making practice of the Council or the Commission (see, to that effect and by analogy, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom,
C‑106/09 P and C‑107/09 P
,
EU:C:2011:732
, paragraph
and the case-law cited).
In the light of the foregoing, the first part of the second ground of appeal must be rejected as being, in part, inadmissible and, in part, ineffective.
The second part of the second ground of appeal, alleging that the General Court wrongly limited the scope of the evidence required under Article 11(10) of the basic regulation solely to data relating to the ‘delivered duty paid’ price
–
Arguments of the parties
By the second part of its second ground of appeal, RFA criticises the General Court for finding, in paragraphs 77 and 78 of the judgment under appeal, that the ‘delivered duty paid’ data were the only data capable of confirming that the resale prices in the European Union for the product in question incorporated the anti-dumping duties, thereby limiting the scope of the acceptable evidence under Article 11(10) of the basic regulation. Furthermore, the appellant criticises the General Court on the ground that it held that the data which the appellant had submitted to it, based on the ‘ex works’ and ‘CIF’ prices, were incomplete and therefore unusable.
According to RFA, it was for the Commission, in accordance with the legal test which it established in Point 4.1(b) of the Notice concerning the reimbursement of anti-dumping duties, to verify and confirm whether the increase in resale prices in the European Union between the original investigation and the third and fourth refund investigation periods duly included the anti-dumping duties. RFA refers, in that regard, to the case-law according to which, in so far as such a notice does not infringe higher-ranking rules of law, it is binding on the Commission (judgments of 28 January 1992, Soba,
C‑266/90
,
EU:C:1992:36
, paragraph
, and of 2 December 2010, Holland Malt v Commission,
C‑464/09 P
,
EU:C:2010:733
, paragraph
).
Thus, in the appellant’s view, the only requirement for it, in its capacity as an applicant for a refund of anti-dumping duties, is to adduce conclusive evidence of a change in pricing behaviour towards independent customers on the EU market following the imposition of those duties. Moreover, in the absence of any indications to that effect in the applicable legal provisions, it is irrelevant whether that evidence was provided on the basis of the ‘delivered duty paid’, ‘ex-works’ or even ‘CIF’ prices.
In that regard, RFA states that it provided the Commission with a whole series of conclusive evidence, describing the development of its prices, established as ‘ex-works’ and ‘CIF’ prices at the EU frontier, from the original investigation until the fourth refund investigation period. Those prices, it submits, were established on the basis of the actual ‘delivered duty paid’ prices and included the amount corresponding to the anti-dumping duties. The data provided by the appellant showed a resale price increase of 193% at the ‘ex works’ stage and one of 142% at the ‘CIF’ stage in comparison with the original investigation period. That increase amply covers both the 22.7% anti-dumping duty and the 100% increase in the production costs of the product in question, identified by the Commission for the same periods.
RFA adds, in its reply, that it has difficulty in understanding why the Commission considers that only ‘delivered duty paid’ prices are prices at the EU frontier, whereas, in the decisions at issue, the Commission stated that ‘ex works’ and ‘CIF’ prices also constituted such prices. RFA submits that its view is supported by the considerations set out by the General Court in paragraph 24 of the judgment under appeal, according to which ‘as regards the determination of the export price, the Commission stated that the price should ultimately be adjusted to the “ex works” level in order to permit an appropriate comparison with normal value. It noted that the [appellant] was an undertaking related to CHEMK and KF and that, consequently, in application of Article 2(9) of the basic regulation, in order to obtain a reliable export price, it was necessary to construct that price on the basis of the price of the first resale to an independent buyer in the European Union. The Commission observed that in this case that was mainly a “delivered duty paid” price, that is to say, all costs borne by the seller on arrival at the place of delivery (as the [appellant] had charged such a price in 79% of cases during the third refund investigation period and in 89% of cases during the fourth such period). The Commission also noted that the export price was the price at the EU frontier, normally corresponding to the [“CIF”] price, that is to say, all costs incurred before arrival at the frontier are included in the price …’.
The Commission contends that the second part of the second ground of appeal is unfounded.
–
Findings of the Court
As has been noted in paragraph 71 of the present judgment, the EU legislature provided, in Article 11(10) of the basic regulation, for the possibility of not deducting anti-dumping duties from the constructed export price provided that ‘conclusive evidence’ is presented by the applicant for a refund, demonstrating that those duties are duly reflected in the resale prices and subsequent selling prices in the European Union.
In that regard, as the Advocate General noted, in essence, in point 92 of his Opinion, evidence that the anti-dumping duties have been reflected in the resale prices and subsequent selling prices in the European Union may be adduced by any means, provided that it is ‘conclusive’.
In the present case, the General Court noted, inter alia, in paragraph 77 of the judgment under appeal, after stating that the assessment of whether the anti-dumping duties had been reflected in the resale prices in the European Union had to be carried out at the level of trade subsequent to the payment of those duties, that is to say, at a level of trade where the price takes into account additional costs in comparison with those selected at the ‘ex works’ or ‘CIF’ stage, that, in the context of the assessment of the resale prices in the European Union, carried out in the context of Article 11(10) of the basic regulation, the Commission had to analyse those prices by taking into account all the costs incurred before that resale. According to the General Court, ‘an analysis of prices established at the “ex works” or [“CIF”] stage, even artificially adding anti-dumping duties thereto as the [appellant] maintains was done – that is to say not taking into account some of the costs borne before that resale – would not be coherent’.
The General Court added, in that paragraph, that, in the context of that assessment, it was essential to verify whether the evidence put forward by the importer concerned proved that the price actually paid by the first independent buyers in the European Union during the period under examination duly reflected the anti-dumping duties. In the present case, that verification was facilitated by the fact that RFA for the most part sold the product in question on the basis of the ‘delivered duty paid’ prices, which encompassed all the costs prior to delivery.
In the light of those factors, the General Court took the view, in essence, in paragraph 78 of the judgment under appeal, that it was not sufficient, for the purposes of satisfying the requirements of the burden of proof borne by the appellant under Article 11(10) of the basic regulation, for the appellant to rely solely on the change in the prices brought back to the ‘ex works’ or ‘CIF’ stage, even increased by the anti-dumping duties, in order to show that it had reflected, during the third refund investigation period, the anti-dumping duties in its resale prices in the European Union. In order to do so, the appellant ought to have adduced evidence showing that its ‘delivered duty paid’ prices charged during that period covered all the costs incurred, including the anti-dumping duties, something, however, which it had not done. The Commission therefore did not err in deducting the anti-dumping duties from the resale price charged to the first independent buyer in the European Union in order to calculate the constructed export price for the third refund investigation period.
It should be noted, first of all, that, in so far as paragraphs 77 and 78 of the judgment under appeal, which are the only paragraphs disputed by the appellant in the second part of the second ground of appeal, concern only the third refund investigation period, the arguments put forward by the appellant with regard to the fourth refund investigation period are ineffective.
Next, it must be stated that, contrary to what is claimed by the appellant, Article 11(10) of the basic regulation places the burden of proof on the party applying for the refund, since, under that provision, the Commission is required to carry out only an examination of the content of the evidence provided by that party, and of the verifications underlying that examination, in order to determine whether that party has proved satisfactorily and conclusively that the anti-dumping duty was duly reflected in the resale prices in the European Union.
Furthermore, it must be held that, by referring to the adjective ‘conclusive’ in Article 11(10) of the basic regulation, the EU legislature intended to impose, under that provision, an even higher standard of burden of proof than that generally laid down under the basic regulation. That interpretation is supported by Point 4.1(b) of the Commission Notice concerning the refund of anti-dumping duties, in so far as it requires the party applying for the refund to provide ‘conclusive’ evidence that the anti-dumping duty is duly reflected in resale prices and subsequent selling prices in the European Union.
In the present case, after examining all of the evidence submitted by the appellant, the Commission took the view that the evidence did not demonstrate conclusively, within the meaning of Article 11(10) of the basic regulation, read in the light of Point 4.1(b) of the Commission Notice concerning the reimbursement of anti-dumping duties, that the anti-dumping duties were duly and indisputably reflected in the resale prices in the European Union. In the contested paragraphs of the judgment under appeal, the General Court reached the same conclusion, after carrying out its own assessment of the evidence provided by the appellant.
Thus, it must be held that RFA’s argument that the General Court limited the scope of the acceptable evidence under Article 11(10) of the basic regulation solely to data relating to the ‘delivered duty paid’ prices is based on a misinterpretation of the judgment under appeal.
That argument must therefore be rejected as unfounded.
The same applies with regard to RFA’s claims referred to in paragraphs 82 and 83 of the present judgment, by which the appellant criticises, in essence, the General Court’s application of the rules relating to the allocation of the burden of proof under Article 11(10) of the basic regulation, since, as has been pointed out in paragraph 93 of the present judgment, the burden of proof under that provision was borne essentially by the appellant. Thus, the appellant is wrong to submit that it was required only to provide evidence showing a change in pricing behaviour for the product in question, towards independent customers in the European Union, following the imposition of the anti-dumping duty.
As regards, lastly, RFA’s argument that it is apparent from paragraph 24 of the judgment under appeal that the Commission had accepted, in the decisions at issue, that the ‘ex works’ and ‘CIF’ prices constituted, similarly to the ‘delivered duty paid’ prices, prices at the EU frontier, suffice it to note that that paragraph relates, not to the question of reflecting anti-dumping duties in the resale prices in the European Union, but to the question of the adjustments that must be made, under Article 2(10) of the basic regulation, in order to ensure a fair comparison between the export price and the normal value. As the General Court observed, in essence, in paragraph 77 of the judgment under appeal, such adjustments are not relevant in the context of the assessments carried out under Article 11(10) of the basic regulation.
That argument of the appellant must therefore be rejected as unfounded.
In the light of the foregoing, the second part of the second ground of appeal must be rejected as being, in part, ineffective and, in part, unfounded. Consequently, the second ground of appeal must be rejected in its entirety.
It follows from all of the foregoing considerations that the appeal must be dismissed.
Costs
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, 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 Commission has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders RFA International LP to pay the costs.

Arabadjiev
Lenaerts
Kumin
von Danwitz
Xuereb
Delivered in open court in Luxembourg on 10 February 2021.
A. Calot Escobar
Registrar
A. Arabadjiev
President of the Second Chamber
(
*1
)	Language of the case: English.