# 62016TJ0301

JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)

10 April 2019 (
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(Dumping — Imports of tubes and pipes of ductile cast iron originating in India — Implementing Regulation (EU) 2016/388 — Regulation (EC) No 1255/2009 (replaced by Regulation (EU) 2016/1036) — Dumping margin — Determination of the export price — Association between an exporter and an importer — Reliable export price — Construction of the export price — Reasonable margin for selling, general and administrative costs — Reasonable margin for profit — Injury to the Union industry — Calculation of price undercutting and the injury margin — Causal link — Access to confidential data of the anti-dumping investigation — Rights of the defence)

In Case T‐301/16,

Jindal Saw Ltd, established in New Delhi (India),

Jindal Saw Ltd

Jindal Saw Italia SpA, established in Trieste (Italy),

Jindal Saw Italia SpA

represented by R. Antonini and E. Monard, lawyers,

applicants,

v

European Commission, represented by J.-F. Brakeland and G. Luengo, acting as Agents,

European Commission

defendant,

supported by

Saint-Gobain Pam, established in Pont-à-Mousson (France), represented by O. Prost, A. Coelho Dias and C. Bouvarel, lawyers,

Saint-Gobain Pam

intervener,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53), in so far as that regulation concerns the applicants,

THE GENERAL COURT (First Chamber, Extended Composition)

composed of I. Pelikánová, President, V. Valančius, P. Nihoul, J. Svenningsen (Rapporteur) and U. Öberg, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 July 2018,

gives the following

Judgment

Judgment

Background to the dispute

Background to the dispute

| 1 | The applicants, Jindal Saw Ltd, a private company governed by Indian law, and Jindal Saw Italia SpA, an Italian company owned by Jindal Saw, are active in the production and sale of, inter alia, tubes and pipes of ductile cast iron intended for the Indian market and for export. During the relevant period in this case, three related companies sold Jindal Saw’s products in the European Union, namely, in addition to Jindal Saw Italia, Jindal Saw España SL and Jindal Saw Pipeline Solutions, UK (known as Jindal Saw UK) (collectively, ‘Jindal Saw’s selling entities’). |
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1

The applicants, Jindal Saw Ltd, a private company governed by Indian law, and Jindal Saw Italia SpA, an Italian company owned by Jindal Saw, are active in the production and sale of, inter alia, tubes and pipes of ductile cast iron intended for the Indian market and for export. During the relevant period in this case, three related companies sold Jindal Saw’s products in the European Union, namely, in addition to Jindal Saw Italia, Jindal Saw España SL and Jindal Saw Pipeline Solutions, UK (known as Jindal Saw UK) (collectively, ‘Jindal Saw’s selling entities’).

| 2 | On 10 November 2014, Saint-Gobain Pam, Saint-Gobain Pam Deutschland GmbH and Saint-Gobain Pam España S.A. submitted, in accordance with Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Union (OJ 2009 L 343, p. 51), 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’) (replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21)), a complaint to the European Commission, pursuant to Article 5 of Regulation No 1225/2009, in order to have it carry out an anti-dumping investigation concerning imports of tubes and pipes of ductile cast iron originating in India. |
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2

On 10 November 2014, Saint-Gobain Pam, Saint-Gobain Pam Deutschland GmbH and Saint-Gobain Pam España S.A. submitted, in accordance with Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Union (OJ 2009 L 343, p. 51), 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’) (replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21)), a complaint to the European Commission, pursuant to Article 5 of Regulation No 1225/2009, in order to have it carry out an anti-dumping investigation concerning imports of tubes and pipes of ductile cast iron originating in India.

| 3 | By notice published in the Official Journal of the European Union on 20 December 2014 (OJ 2014 C 461, p. 35), the Commission initiated an anti-dumping proceeding concerning the imports in question (‘the anti-dumping proceeding’). |
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3

By notice published in the Official Journal of the European Union on 20 December 2014 (OJ 2014 C 461, p. 35), the Commission initiated an anti-dumping proceeding concerning the imports in question (‘the anti-dumping proceeding’).

Official Journal of the European Union

| 4 | In parallel, on 26 January 2015, Saint-Gobain Pam, Saint-Gobain Pam Deutschland and Saint-Gobain Pam España submitted, pursuant to Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Union (OJ 2009 L 188, p. 93), as amended by Regulation No 37/2014 (‘the basic anti-subsidy regulation’) (replaced by Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55)), a complaint to the Commission, pursuant to Article 10 of the basic regulation, in order to have it carry out an anti-subsidy investigation, also concerning the imports in question. |
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4

In parallel, on 26 January 2015, Saint-Gobain Pam, Saint-Gobain Pam Deutschland and Saint-Gobain Pam España submitted, pursuant to Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Union (OJ 2009 L 188, p. 93), as amended by Regulation No 37/2014 (‘the basic anti-subsidy regulation’) (replaced by Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55)), a complaint to the Commission, pursuant to Article 10 of the basic regulation, in order to have it carry out an anti-subsidy investigation, also concerning the imports in question.

| 5 | By notice published in the Official Journal on 11 March 2015 (OJ 2015 C 83, p. 4), the Commission initiated an anti-subsidy proceeding concerning the imports in question (‘the anti-subsidy proceeding’). |
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5

By notice published in the Official Journal on 11 March 2015 (OJ 2015 C 83, p. 4), the Commission initiated an anti-subsidy proceeding concerning the imports in question (‘the anti-subsidy proceeding’).

| 6 | On 24 June 2015, Jindal Saw submitted observations to the Commission on certain aspects of the dumping analysis, the injury caused to the Union industry and the Union interest. Those observations covered both the anti-dumping proceeding and the anti-subsidy proceeding. |
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6

On 24 June 2015, Jindal Saw submitted observations to the Commission on certain aspects of the dumping analysis, the injury caused to the Union industry and the Union interest. Those observations covered both the anti-dumping proceeding and the anti-subsidy proceeding.

| 7 | On 18 September 2015, the Commission adopted Implementing Regulation (EU) 2015/1559 imposing a provisional anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2015 L 244, p. 25, ‘the provisional regulation’). The product concerned was defined in that regulation as tubes and pipes of ductile cast iron (also known as ‘spheroidal graphite cast iron’) originating in India. |
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7

On 18 September 2015, the Commission adopted Implementing Regulation (EU) 2015/1559 imposing a provisional anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2015 L 244, p. 25, ‘the provisional regulation’). The product concerned was defined in that regulation as tubes and pipes of ductile cast iron (also known as ‘spheroidal graphite cast iron’) originating in India.

| 8 | On 23 October 2015, Jindal Saw submitted its observations on the provisional information in the anti-dumping proceeding, requesting at the same time the organisation of a hearing by the Commission. |
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8

On 23 October 2015, Jindal Saw submitted its observations on the provisional information in the anti-dumping proceeding, requesting at the same time the organisation of a hearing by the Commission.

| 9 | A meeting was organised on 20 November 2015. On 24 November 2015, Jindal Saw sent an email to the Commission in which it confirmed certain elements discussed during that meeting, in particular those regarding the definition of the product concerned and the calculation of the price undercutting, and, on 27 November 2015, it submitted to the Commission its observations following that meeting in the context of the anti-dumping proceeding. On 9 December 2015, it communicated to the Commission certain observations in the context of the anti-dumping proceeding and in the context of the anti-subsidy proceeding, in particular concerning (i) the characterisation of the export tax on iron ore as a subsidy, (ii) the injury, (iii) the replies to questionnaires made by the users of the product concerned and, (iv) the exclusion from the definition of the product concerned of tubes which have no internal coating or outer coating. |
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9

A meeting was organised on 20 November 2015. On 24 November 2015, Jindal Saw sent an email to the Commission in which it confirmed certain elements discussed during that meeting, in particular those regarding the definition of the product concerned and the calculation of the price undercutting, and, on 27 November 2015, it submitted to the Commission its observations following that meeting in the context of the anti-dumping proceeding. On 9 December 2015, it communicated to the Commission certain observations in the context of the anti-dumping proceeding and in the context of the anti-subsidy proceeding, in particular concerning (i) the characterisation of the export tax on iron ore as a subsidy, (ii) the injury, (iii) the replies to questionnaires made by the users of the product concerned and, (iv) the exclusion from the definition of the product concerned of tubes which have no internal coating or outer coating.

| 10 | On 22 December 2015, the Commission informed Jindal Saw of the essential facts and considerations on the basis of which it was intended to impose a definitive anti-dumping duty on imports of the same product (‘the final disclosure’) and of the essential facts and considerations on the basis of which it was intended to impose a definitive countervailing duty on the same imports. Prior to submitting its comments, Jindal Saw requested, by email dated 12 January 2016, further information on four specific points. |
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10

On 22 December 2015, the Commission informed Jindal Saw of the essential facts and considerations on the basis of which it was intended to impose a definitive anti-dumping duty on imports of the same product (‘the final disclosure’) and of the essential facts and considerations on the basis of which it was intended to impose a definitive countervailing duty on the same imports. Prior to submitting its comments, Jindal Saw requested, by email dated 12 January 2016, further information on four specific points.

| 11 | On 20 January 2016, Jindal Saw submitted its comments on the final disclosure in the context of the anti-dumping proceeding and in the context of the anti-subsidy proceeding. |
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11

On 20 January 2016, Jindal Saw submitted its comments on the final disclosure in the context of the anti-dumping proceeding and in the context of the anti-subsidy proceeding.

| 12 | On 26 January 2016, the Commission sent Jindal Saw an additional final disclosure concerning corrections made to certain elements involved in the calculation of the dumping margin in the anti-dumping proceeding. The deadline for submitting comments was 28 January 2016. |
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12

On 26 January 2016, the Commission sent Jindal Saw an additional final disclosure concerning corrections made to certain elements involved in the calculation of the dumping margin in the anti-dumping proceeding. The deadline for submitting comments was 28 January 2016.

| 13 | On 28 January 2016, Jindal Saw attended a meeting organised by the Commission. That meeting focused in particular on the conclusions regarding the subsidy constituted by the export tax on iron ore and the rail freight dual pricing regime for iron ore, calculations related to the subsidy package, the injury caused to the Union industry and the dumped imports. On the same day, the Commission sent a letter to Jindal Saw informing it of certain corrections made to the calculations of the indicators of injury to the Union industry in connection with the anti-dumping and anti-subsidy proceedings. The deadline for submitting comments was 1 February 2016. |
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13

On 28 January 2016, Jindal Saw attended a meeting organised by the Commission. That meeting focused in particular on the conclusions regarding the subsidy constituted by the export tax on iron ore and the rail freight dual pricing regime for iron ore, calculations related to the subsidy package, the injury caused to the Union industry and the dumped imports. On the same day, the Commission sent a letter to Jindal Saw informing it of certain corrections made to the calculations of the indicators of injury to the Union industry in connection with the anti-dumping and anti-subsidy proceedings. The deadline for submitting comments was 1 February 2016.

| 14 | On 1 February 2016, Jindal Saw sent two emails to the Commission, setting out its comments on, first, the corrections made to certain indicators of injury to the Union industry and, second, the meeting of 28 January 2016. Those emails also contained various requests for information. |
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14

On 1 February 2016, Jindal Saw sent two emails to the Commission, setting out its comments on, first, the corrections made to certain indicators of injury to the Union industry and, second, the meeting of 28 January 2016. Those emails also contained various requests for information.

| 15 | Following the anti-dumping and anti-subsidy proceedings, the Commission adopted, respectively, Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53, ‘the contested regulation’), and Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 1), which is the subject of an action for annulment in Jindal Saw and Jindal Saw Italia v Commission (T‐300/16). |
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15

Following the anti-dumping and anti-subsidy proceedings, the Commission adopted, respectively, Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53, ‘the contested regulation’), and Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 1), which is the subject of an action for annulment in Jindal Saw and Jindal Saw Italia v Commission (T‐300/16).

Jindal Saw and Jindal Saw Italia

Commission

| 16 | In the contested regulation, the product concerned was definitively defined as ‘tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron), ... with the exclusion of ductile pipes without internal and external coating ..., originating in India, currently falling within CN codes ex73030010 and ex73030090’ (‘the product concerned’). |
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16

In the contested regulation, the product concerned was definitively defined as ‘tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron), ... with the exclusion of ductile pipes without internal and external coating ..., originating in India, currently falling within CN codes ex73030010 and ex73030090’ (‘the product concerned’).

Procedure and forms of order sought

Procedure and forms of order sought

| 17 | By application lodged at the Court Registry on 13 June 2016, the applicants brought the present action. The defence, reply and rejoinder were lodged on 27 September 2016, 21 November 2016 and 26 January 2017. |
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17

By application lodged at the Court Registry on 13 June 2016, the applicants brought the present action. The defence, reply and rejoinder were lodged on 27 September 2016, 21 November 2016 and 26 January 2017.

| 18 | Following a change in the composition of the Chambers of the General Court, the case was reassigned to a new Judge-Rapporteur within the First Chamber. |
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18

Following a change in the composition of the Chambers of the General Court, the case was reassigned to a new Judge-Rapporteur within the First Chamber.

| 19 | Confidentiality requests relating to certain information contained in the application, the reply and the rejoinder were lodged by the applicants on 11 and 21 November 2016 and on 14 February 2017. |
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19

Confidentiality requests relating to certain information contained in the application, the reply and the rejoinder were lodged by the applicants on 11 and 21 November 2016 and on 14 February 2017.

| 20 | By document lodged at the Court Registry on 18 October 2016, Saint-Gobain Pam sought leave to intervene in the present case in support of the form of order sought by the Commission. By order of 19 January 2017, the President of the First Chamber of the General Court allowed that intervention. |
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20

By document lodged at the Court Registry on 18 October 2016, Saint-Gobain Pam sought leave to intervene in the present case in support of the form of order sought by the Commission. By order of 19 January 2017, the President of the First Chamber of the General Court allowed that intervention.

| 21 | On 6 March 2017, the intervener lodged a statement in intervention at the Court Registry. The Commission and the applicants lodged their observations on that statement on 24 March and 19 April 2017. |
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21

On 6 March 2017, the intervener lodged a statement in intervention at the Court Registry. The Commission and the applicants lodged their observations on that statement on 24 March and 19 April 2017.

| 22 | On 20 July 2017, the Court ordered the Commission, pursuant to Article 91(b) of the Rules of Procedure of the Court and subject to the application of Article 103(1) of that regulation, to provide the necessary confidential data to verify the veracity of certain explanations provided in the defence as regards the implications of the clerical error referred to in recital 72 of the contested regulation (‘the clerical error’). |
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22

On 20 July 2017, the Court ordered the Commission, pursuant to Article 91(b) of the Rules of Procedure of the Court and subject to the application of Article 103(1) of that regulation, to provide the necessary confidential data to verify the veracity of certain explanations provided in the defence as regards the implications of the clerical error referred to in recital 72 of the contested regulation (‘the clerical error’).

| 23 | On 10 August 2017, the Commission produced, in digital form, the data covered by the measure of inquiry ordered by the Court. |
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23

On 10 August 2017, the Commission produced, in digital form, the data covered by the measure of inquiry ordered by the Court.

| 24 | By decision notified to the parties on 14 September 2017, the lawyers representing the applicants were invited, by way of a measure of organisation of procedure, to consult, under certain conditions, those data in the offices of the Court Registry. That consultation took place on 26 and 27 September 2017. |
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24

By decision notified to the parties on 14 September 2017, the lawyers representing the applicants were invited, by way of a measure of organisation of procedure, to consult, under certain conditions, those data in the offices of the Court Registry. That consultation took place on 26 and 27 September 2017.

| 25 | On 18 October 2017, the applicants submitted observations following the consultation by their lawyers of the data at issue (‘the observations of 18 October 2017’). On the same date, they lodged an application for confidential treatment, vis-à-vis the intervener, concerning some of those data. |
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25

On 18 October 2017, the applicants submitted observations following the consultation by their lawyers of the data at issue (‘the observations of 18 October 2017’). On the same date, they lodged an application for confidential treatment, vis-à-vis the intervener, concerning some of those data.

| 26 | On 14 November 2017, the Commission lodged a request for confidential treatment, vis-à-vis the intervener, concerning certain information contained in the observations of 18 October 2017. |
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26

On 14 November 2017, the Commission lodged a request for confidential treatment, vis-à-vis the intervener, concerning certain information contained in the observations of 18 October 2017.

| 27 | On 22 November 2017, the Commission submitted comments on the observations of 18 October 2017. |
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27

On 22 November 2017, the Commission submitted comments on the observations of 18 October 2017.

| 28 | On 15 December 2017, the intervener submitted comments on the observations of 18 October 2017 and on the Commission’s observations. |
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28

On 15 December 2017, the intervener submitted comments on the observations of 18 October 2017 and on the Commission’s observations.

| 29 | On 27 April 2018, the General Court invited the main parties to reply, in the context of measures of organisation of procedure, to a number of questions and to produce certain documents. The parties complied with that request within the periods prescribed. They had the opportunity to comment on their respective responses, which was also done within the prescribed period. |
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29

On 27 April 2018, the General Court invited the main parties to reply, in the context of measures of organisation of procedure, to a number of questions and to produce certain documents. The parties complied with that request within the periods prescribed. They had the opportunity to comment on their respective responses, which was also done within the prescribed period.

| 30 | On 25 June 2018, following the Commission’s replies, the Court invited the Commission to submit a corrected calculation of the dumping margin, in view of an error admitted by it, in the context of a new measure of organisation of procedure. |
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30

On 25 June 2018, following the Commission’s replies, the Court invited the Commission to submit a corrected calculation of the dumping margin, in view of an error admitted by it, in the context of a new measure of organisation of procedure.

| 31 | The applicants claim that the Court should:





  – | annul the contested regulation in so far as it concerns them; |
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31

The applicants claim that the Court should:

–

annul the contested regulation in so far as it concerns them;

| – | order the Commission to pay the costs. |
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–

order the Commission to pay the costs.

| 32 | The Commission, supported by the intervener, contends that the Court should:





  – | dismiss the action as unfounded; |
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32

The Commission, supported by the intervener, contends that the Court should:

–

dismiss the action as unfounded;

| – | order the applicants to pay the costs. |
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–

order the applicants to pay the costs.

| 33 | The parties presented oral argument and answered the questions put to them by the Court at the hearing on 3 July 2018. |
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33

The parties presented oral argument and answered the questions put to them by the Court at the hearing on 3 July 2018.

Law

Law

The admissibility of the observations of 18 October 2017

The admissibility of the observations of 18 October 2017

| 34 | The observations of 18 October 2017 were lodged by the applicants in the context set out below. |
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34

The observations of 18 October 2017 were lodged by the applicants in the context set out below.

| 35 | In the final stage of the administrative procedure, the Commission informed the interested parties of the existence of the clerical error. That error, relating to certain indicators of injury to the Union industry, consisted in the taking into consideration of certain export sales of the Union industry as sales made in the Union. Consequently, the Commission corrected the data concerning the sales in the Union of the Union industry and revised data relating to other indicators that had been influenced, by repercussion, by the clerical error. |
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35

In the final stage of the administrative procedure, the Commission informed the interested parties of the existence of the clerical error. That error, relating to certain indicators of injury to the Union industry, consisted in the taking into consideration of certain export sales of the Union industry as sales made in the Union. Consequently, the Commission corrected the data concerning the sales in the Union of the Union industry and revised data relating to other indicators that had been influenced, by repercussion, by the clerical error.

| 36 | In the application, the applicants argued that the Commission had not carried out all the revisions necessitated by the correction of the clerical error. |
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36

In the application, the applicants argued that the Commission had not carried out all the revisions necessitated by the correction of the clerical error.

| 37 | In the defence, the Commission explained in detail that the clerical error had occurred in the transcription of certain figures, contained in a computerised spreadsheet, drawn up using a spreadsheet programme and annexed to the replies to the questionnaire of a Union producer, in a specific computerised spreadsheet and that that error had no effect on the indicators other than those which had been corrected, the other indicators having been established in separate computerised spreadsheets. |
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37

In the defence, the Commission explained in detail that the clerical error had occurred in the transcription of certain figures, contained in a computerised spreadsheet, drawn up using a spreadsheet programme and annexed to the replies to the questionnaire of a Union producer, in a specific computerised spreadsheet and that that error had no effect on the indicators other than those which had been corrected, the other indicators having been established in separate computerised spreadsheets.

| 38 | According to the Commission, the only indicators of injury which had been influenced, and which were revised, were those for which automatic links had been created, in the calculation formulae included in that specific spreadsheet, with the data that were the subject of the clerical error. |
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38

According to the Commission, the only indicators of injury which had been influenced, and which were revised, were those for which automatic links had been created, in the calculation formulae included in that specific spreadsheet, with the data that were the subject of the clerical error.

| 39 | The Commission proposed to make the data concerned, which are confidential within the meaning of Article 19 of the basic regulation, available to the Court, subject to the application of Article 103 of the Rules of Procedure, to enable the applicants to verify the merits of the explanations set out in paragraphs 37 and 38 above. |
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39

The Commission proposed to make the data concerned, which are confidential within the meaning of Article 19 of the basic regulation, available to the Court, subject to the application of Article 103 of the Rules of Procedure, to enable the applicants to verify the merits of the explanations set out in paragraphs 37 and 38 above.

| 40 | Following the measure of inquiry ordered by the Court, the Commission lodged at the Court Registry a USB stick containing the data whose production had been sought. By decision notified on 14 September 2017, read together with that measure of inquiry, the lawyers representing the applicants were invited, subject to the signing of a confidentiality undertaking, to consult the documents contained in that USB stick in the offices of the Court Registry, exclusively in order to be able to check the veracity of certain explanations provided in the defence as regards the implications of the clerical error. |
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40

Following the measure of inquiry ordered by the Court, the Commission lodged at the Court Registry a USB stick containing the data whose production had been sought. By decision notified on 14 September 2017, read together with that measure of inquiry, the lawyers representing the applicants were invited, subject to the signing of a confidentiality undertaking, to consult the documents contained in that USB stick in the offices of the Court Registry, exclusively in order to be able to check the veracity of certain explanations provided in the defence as regards the implications of the clerical error.

| 41 | In the observations of 18 October 2017, lodged following that consultation, the applicants do not contest the veracity of those explanations, but claim to have discovered, in those documents, five further errors, which support some of their complaints. |
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41

In the observations of 18 October 2017, lodged following that consultation, the applicants do not contest the veracity of those explanations, but claim to have discovered, in those documents, five further errors, which support some of their complaints.

| 42 | Primarily, the Commission contends that the observations of 18 October 2017 are inadmissible, since they relate to questions outside the scope of the measure of inquiry and the measure of organisation of procedure adopted by the Court. In the alternative, it submits that the correction of the errors identified by the applicants did not change the analysis which it made in the context of the contested regulation. |
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42

Primarily, the Commission contends that the observations of 18 October 2017 are inadmissible, since they relate to questions outside the scope of the measure of inquiry and the measure of organisation of procedure adopted by the Court. In the alternative, it submits that the correction of the errors identified by the applicants did not change the analysis which it made in the context of the contested regulation.

| 43 | The intervener, from which most of the confidential data in question originates, essentially argues that the basic regulation does not allow the disclosure of confidential data transmitted by an undertaking to the institutions of the Union in the context of an anti-dumping proceeding without the authorisation of that undertaking. In the alternative, the intervener is seeking fuller access than that which it has already been granted to the data concerned. |
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43

The intervener, from which most of the confidential data in question originates, essentially argues that the basic regulation does not allow the disclosure of confidential data transmitted by an undertaking to the institutions of the Union in the context of an anti-dumping proceeding without the authorisation of that undertaking. In the alternative, the intervener is seeking fuller access than that which it has already been granted to the data concerned.

| 44 | It should be noted, first of all, that the five errors to which the applicants refer in the observations of 18 October 2017 are unrelated to the clerical error at the origin of the measure of inquiry and the measure of organisation of procedure taken by the Court and, therefore, to the purpose of those measures. |
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44

It should be noted, first of all, that the five errors to which the applicants refer in the observations of 18 October 2017 are unrelated to the clerical error at the origin of the measure of inquiry and the measure of organisation of procedure taken by the Court and, therefore, to the purpose of those measures.

| 45 | Next, it should be borne in mind that the basic regulation governs in detail the access of interested parties to the data collected in the context of an anti-dumping investigation. It provides for a complete system of procedural guarantees seeking, on the one hand, to allow the interested parties effectively to defend their interests and, on the other hand, to preserve, when it is necessary, the confidentiality of the information used in the course of that investigation and contains rules allowing those two requirements to be reconciled (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‐424/13, EU:T:2016:378, paragraph 96). |
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45

Next, it should be borne in mind that the basic regulation governs in detail the access of interested parties to the data collected in the context of an anti-dumping investigation. It provides for a complete system of procedural guarantees seeking, on the one hand, to allow the interested parties effectively to defend their interests and, on the other hand, to preserve, when it is necessary, the confidentiality of the information used in the course of that investigation and contains rules allowing those two requirements to be reconciled (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‐424/13, EU:T:2016:378, paragraph 96).

| 46 | In that regard, Article 19(1) of the basic regulation lays down the principle that any information which is by nature confidential is to be treated as such by the authorities if such nature is justified by good cause. Paragraph 5 of that article prohibits, inter alia, the Commission from revealing any information received pursuant to that regulation for which confidential treatment has been requested by its supplier, without specific permission from the supplier, and, unless otherwise expressly provided for, from disclosing, in particular, any internal documents prepared by the authorities of the Union. |
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46

In that regard, Article 19(1) of the basic regulation lays down the principle that any information which is by nature confidential is to be treated as such by the authorities if such nature is justified by good cause. Paragraph 5 of that article prohibits, inter alia, the Commission from revealing any information received pursuant to that regulation for which confidential treatment has been requested by its supplier, without specific permission from the supplier, and, unless otherwise expressly provided for, from disclosing, in particular, any internal documents prepared by the authorities of the Union.

| 47 | The basic regulation also contains a number of provisions that allow the requirements linked to the rights of interested parties to defend their interests effectively to be reconciled with those linked to the necessity of protecting confidential information. First, access by interested parties to information available under Article 6(7) and Article 20 of the basic regulation is restricted by the confidentiality of such information. Secondly, Article 19(2) to (4) of the basic regulation provides for a certain number of arrangements with respect to the confidentiality of the information in order to protect those rights of the interested parties. |
| --- | --- |

47

The basic regulation also contains a number of provisions that allow the requirements linked to the rights of interested parties to defend their interests effectively to be reconciled with those linked to the necessity of protecting confidential information. First, access by interested parties to information available under Article 6(7) and Article 20 of the basic regulation is restricted by the confidentiality of such information. Secondly, Article 19(2) to (4) of the basic regulation provides for a certain number of arrangements with respect to the confidentiality of the information in order to protect those rights of the interested parties.

| 48 | In this instance, the documents which the applicants’ lawyers were authorised to consult exclusively contain commercial data from two of the three companies constituting, in the present case, the Union industry. At issue is confidential data within the meaning of Article 19 of the basic regulation, a point which the parties do not dispute. |
| --- | --- |

48

In this instance, the documents which the applicants’ lawyers were authorised to consult exclusively contain commercial data from two of the three companies constituting, in the present case, the Union industry. At issue is confidential data within the meaning of Article 19 of the basic regulation, a point which the parties do not dispute.

| 49 | At issue therefore are documents the disclosure of which the applicants could not claim pursuant to the basic regulation. Access to those documents was conferred only on their lawyers and only in order to enable the verification of the implications of the clerical error committed by the Commission, within the context of a decision of the Court strictly circumscribing that access, so as to ensure respect for the applicants’ rights of defence, as follows from the measure of inquiry and the measure of organisation of procedure adopted by the Court. |
| --- | --- |

49

At issue therefore are documents the disclosure of which the applicants could not claim pursuant to the basic regulation. Access to those documents was conferred only on their lawyers and only in order to enable the verification of the implications of the clerical error committed by the Commission, within the context of a decision of the Court strictly circumscribing that access, so as to ensure respect for the applicants’ rights of defence, as follows from the measure of inquiry and the measure of organisation of procedure adopted by the Court.

| 50 | First, the measure of inquiry ordered by the Court was worded precisely. The Commission only had to produce the data which were strictly necessary to check the veracity of certain explanations provided in the defence regarding the implications of the clerical error. |
| --- | --- |

50

First, the measure of inquiry ordered by the Court was worded precisely. The Commission only had to produce the data which were strictly necessary to check the veracity of certain explanations provided in the defence regarding the implications of the clerical error.

| 51 | Secondly, the decision notified to the parties on 14 September 2017 provided, in the context of a measure of organisation of procedure, for access to the data in question only to ensure respect for the applicants’ rights of defence, in the context of the present proceedings, as regards those explanations, and not to provide the applicants with information beyond the safeguards provided for in the basic regulation for the benefit of the interested parties, which would be contrary to the respect for the confidentiality of such data. It must incidentally be observed that, in the course of the administrative procedure, the applicants’ rights were guaranteed by Article 6(7) and Articles 19 and 20 of the basic regulation. |
| --- | --- |

51

Secondly, the decision notified to the parties on 14 September 2017 provided, in the context of a measure of organisation of procedure, for access to the data in question only to ensure respect for the applicants’ rights of defence, in the context of the present proceedings, as regards those explanations, and not to provide the applicants with information beyond the safeguards provided for in the basic regulation for the benefit of the interested parties, which would be contrary to the respect for the confidentiality of such data. It must incidentally be observed that, in the course of the administrative procedure, the applicants’ rights were guaranteed by Article 6(7) and Articles 19 and 20 of the basic regulation.

| 52 | It follows from the foregoing that the present case cannot be assimilated to a situation in which the Court decided, pursuant to Article 103(3) of the Rules of Procedure and after weighing up the matters referred to in paragraph 2 of that article, to generally bring to the attention of a main party confidential information or material produced by the other main party. In the present case, the Court gave the applicants’ lawyers specific access to the computerised spreadsheets used by the Commission for the establishment of the disputed indicators for the sole purpose of enabling them to verify the veracity of certain explanations provided in the defence with regard to the implications of the clerical error, in particular with regard to the links created in those spreadsheets. Consequently, the applicants cannot claim to have had general access to new information, the discovery of which would enable them to put forward new pleas or complaints to be regarded as admissible under Article 84 of the Rules of Procedure. |
| --- | --- |

52

It follows from the foregoing that the present case cannot be assimilated to a situation in which the Court decided, pursuant to Article 103(3) of the Rules of Procedure and after weighing up the matters referred to in paragraph 2 of that article, to generally bring to the attention of a main party confidential information or material produced by the other main party. In the present case, the Court gave the applicants’ lawyers specific access to the computerised spreadsheets used by the Commission for the establishment of the disputed indicators for the sole purpose of enabling them to verify the veracity of certain explanations provided in the defence with regard to the implications of the clerical error, in particular with regard to the links created in those spreadsheets. Consequently, the applicants cannot claim to have had general access to new information, the discovery of which would enable them to put forward new pleas or complaints to be regarded as admissible under Article 84 of the Rules of Procedure.

| 53 | In this respect, it should also be observed that the applicants themselves did not ask the Court to allow them access to the documents in question for use in a general manner. On the contrary, in the reply, the applicants explicitly requested that such access be given to them for the sole purpose of verifying the veracity of certain explanations provided in the defence as regards the implications of the clerical error. |
| --- | --- |

53

In this respect, it should also be observed that the applicants themselves did not ask the Court to allow them access to the documents in question for use in a general manner. On the contrary, in the reply, the applicants explicitly requested that such access be given to them for the sole purpose of verifying the veracity of certain explanations provided in the defence as regards the implications of the clerical error.

| 54 | On the basis of all those considerations, the observations of 18 October 2017 should be rejected as inadmissible. |
| --- | --- |

54

On the basis of all those considerations, the observations of 18 October 2017 should be rejected as inadmissible.

| 55 | There is therefore no need to rule on the intervener’s alternative claim seeking fuller access to the data concerned. |
| --- | --- |

55

There is therefore no need to rule on the intervener’s alternative claim seeking fuller access to the data concerned.

Substance

Substance

| 56 | In support of the action, the applicants submit, in essence, four pleas in law alleging various infringements of the basic regulation, namely:





  – | the first plea, alleging infringement of Article 2(8) and (9) of the basic regulation and, consequently, of Article 9(4) of the basic regulation; |
| --- | --- | --- |

56

In support of the action, the applicants submit, in essence, four pleas in law alleging various infringements of the basic regulation, namely:

–

the first plea, alleging infringement of Article 2(8) and (9) of the basic regulation and, consequently, of Article 9(4) of the basic regulation;

| – | the second plea, alleging infringement of Article 3(2) and (3) of the basic regulation and, consequently, of Article 3(6) and Article 9(4) of the basic regulation; |
| --- | --- |

–

the second plea, alleging infringement of Article 3(2) and (3) of the basic regulation and, consequently, of Article 3(6) and Article 9(4) of the basic regulation;

| – | the third plea, alleging infringement of Article 3(2), (3), (5) to (8), Article 4(1) and Article 5(4) of the basic regulation; |
| --- | --- |

–

the third plea, alleging infringement of Article 3(2), (3), (5) to (8), Article 4(1) and Article 5(4) of the basic regulation;

| – | the fourth plea, alleging infringement of Article 20(4) and (5) of the basic regulation and of the rights of defence. |
| --- | --- |

–

the fourth plea, alleging infringement of Article 20(4) and (5) of the basic regulation and of the rights of defence.

| 57 | It is appropriate to examine, in the first place, the fourth plea. |
| --- | --- |

57

It is appropriate to examine, in the first place, the fourth plea.

The fourth plea, alleging infringement of Article 20(4) and (5) of the basic regulation and of the rights of defence

The fourth plea, alleging infringement of Article 20(4) and (5) of the basic regulation and of the rights of defence

| 58 | The fourth ground of appeal comprises, in essence, two parts. |
| --- | --- |

58

The fourth ground of appeal comprises, in essence, two parts.

| 59 | By the first part of the plea, the applicants claim that the Commission infringed Article 20(4) of the basic regulation and Jindal Saw’s right to be heard by not sending Jindal Saw a number of documents which it had requested from the Commission in two emails of 1 February 2016. |
| --- | --- |

59

By the first part of the plea, the applicants claim that the Commission infringed Article 20(4) of the basic regulation and Jindal Saw’s right to be heard by not sending Jindal Saw a number of documents which it had requested from the Commission in two emails of 1 February 2016.

| 60 | Relying on the case-law, the applicants note that, where the EU institutions have a wide power of appraisal, respect for the rights guaranteed by the legal order of the Union is even more fundamental and that the right to be properly heard is included among those rights. In this respect, it cannot be fully excluded that, if Jindal Saw had been given the opportunity to comment on the information that it had requested regarding the injury indicators influenced by the clerical error and the costs of the Union industry, including selling costs, administrative expenses and other general costs (‘the SG&A costs’) of the selling entities of the Saint-Gobain Pam group, the administrative procedure could have resulted in a different and more favourable outcome for it, since, previously, the Commission had already revised its point of view as a result of observations which had been submitted to it by the interested parties. |
| --- | --- |

60

Relying on the case-law, the applicants note that, where the EU institutions have a wide power of appraisal, respect for the rights guaranteed by the legal order of the Union is even more fundamental and that the right to be properly heard is included among those rights. In this respect, it cannot be fully excluded that, if Jindal Saw had been given the opportunity to comment on the information that it had requested regarding the injury indicators influenced by the clerical error and the costs of the Union industry, including selling costs, administrative expenses and other general costs (‘the SG&A costs’) of the selling entities of the Saint-Gobain Pam group, the administrative procedure could have resulted in a different and more favourable outcome for it, since, previously, the Commission had already revised its point of view as a result of observations which had been submitted to it by the interested parties.

| 61 | By the second part of the plea, the applicants claim that the Commission infringed Article 20(5) of the basic regulation and Jindal Saw’s right to be heard by not having granted it sufficient time to submit its observations following the communication of the modified injury indicators. In that regard, they argue that it cannot be fully excluded that, if Jindal Saw had had a period of time in accordance with the terms of that provision following the communication of the modified injury indicators, it could have made more developed observations capable of leading the Commission to change its point of view. |
| --- | --- |

61

By the second part of the plea, the applicants claim that the Commission infringed Article 20(5) of the basic regulation and Jindal Saw’s right to be heard by not having granted it sufficient time to submit its observations following the communication of the modified injury indicators. In that regard, they argue that it cannot be fully excluded that, if Jindal Saw had had a period of time in accordance with the terms of that provision following the communication of the modified injury indicators, it could have made more developed observations capable of leading the Commission to change its point of view.

| 62 | The Commission, supported by the intervener, disputes the validity of this plea. |
| --- | --- |

62

The Commission, supported by the intervener, disputes the validity of this plea.

| 63 | As a preliminary point, it should be observed, in the first place, that, where the interested parties to an anti-dumping investigation, including the exporting producers concerned, wish to have access to information concerning the facts and considerations likely to form the basis of anti-dumping measures with a view to defending their interests, the Commission is required to comply with certain procedural principles and guarantees. |
| --- | --- |

63

As a preliminary point, it should be observed, in the first place, that, where the interested parties to an anti-dumping investigation, including the exporting producers concerned, wish to have access to information concerning the facts and considerations likely to form the basis of anti-dumping measures with a view to defending their interests, the Commission is required to comply with certain procedural principles and guarantees.

| 64 | In that regard, it must be held that, first, Article 20 of the basic regulation sets out certain detailed rules as to the exercise of the right of the parties concerned to be heard, which constitutes a fundamental right recognised by the legal order of the Union. That article provides, in paragraph 2 thereof, for the right to be informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive anti-dumping measures. That article also provides, in paragraph 4 thereof, that, where the Commission intends to take a decision based on facts and considerations different from those previously disclosed, it must disclose them as soon as possible and, in paragraph 5 thereof, that the parties concerned must have, in principle, a minimum period of 10 days to submit their observations; that period may be shorter in the case of an additional final disclosure. |
| --- | --- |

64

In that regard, it must be held that, first, Article 20 of the basic regulation sets out certain detailed rules as to the exercise of the right of the parties concerned to be heard, which constitutes a fundamental right recognised by the legal order of the Union. That article provides, in paragraph 2 thereof, for the right to be informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive anti-dumping measures. That article also provides, in paragraph 4 thereof, that, where the Commission intends to take a decision based on facts and considerations different from those previously disclosed, it must disclose them as soon as possible and, in paragraph 5 thereof, that the parties concerned must have, in principle, a minimum period of 10 days to submit their observations; that period may be shorter in the case of an additional final disclosure.

| 65 | Secondly, according to settled case-law, the requirements stemming from respect for the rights of defence must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings preceding the adoption of anti-dumping regulations, which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular, in the context of the communication of information to the undertakings concerned during an investigation procedure, the respect for their rights of defence presupposes that those undertakings should have been placed in a position during that procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‐191/09 P and C‐200/09 P, EU:C:2012:78, paragraph 76 and the case-law cited). |
| --- | --- |

65

Secondly, according to settled case-law, the requirements stemming from respect for the rights of defence must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings preceding the adoption of anti-dumping regulations, which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular, in the context of the communication of information to the undertakings concerned during an investigation procedure, the respect for their rights of defence presupposes that those undertakings should have been placed in a position during that procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‐191/09 P and C‐200/09 P, EU:C:2012:78, paragraph 76 and the case-law cited).

| 66 | While, admittedly, respect for the rights of the defence is of paramount importance in anti-dumping investigation proceedings (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‐191/09 P and C‐200/09 P, EU:C:2012:78, paragraph 77 and the case-law cited), the existence of an irregularity with regard to the respect of those rights can lead to the annulment of a regulation establishing an anti-dumping duty only to the extent that there is a possibility that, as a result of that irregularity, the administrative procedure might have resulted in a different result, thereby materially affecting the rights of defence of the party concerned (see, to that effect, judgment of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‐141/08 P, EU:C:2009:598, paragraph 107). |
| --- | --- |

66

While, admittedly, respect for the rights of the defence is of paramount importance in anti-dumping investigation proceedings (see judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‐191/09 P and C‐200/09 P, EU:C:2012:78, paragraph 77 and the case-law cited), the existence of an irregularity with regard to the respect of those rights can lead to the annulment of a regulation establishing an anti-dumping duty only to the extent that there is a possibility that, as a result of that irregularity, the administrative procedure might have resulted in a different result, thereby materially affecting the rights of defence of the party concerned (see, to that effect, judgment of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‐141/08 P, EU:C:2009:598, paragraph 107).

| 67 | However, it must be recalled that that party cannot be required to demonstrate that the Commission’s decision would have been different, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself if there had been no procedural error complained of (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‐191/09 P and C‐200/09 P, EU:C:2012:78, paragraph 78 and the case-law cited). |
| --- | --- |

67

However, it must be recalled that that party cannot be required to demonstrate that the Commission’s decision would have been different, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself if there had been no procedural error complained of (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‐191/09 P and C‐200/09 P, EU:C:2012:78, paragraph 78 and the case-law cited).

| 68 | On the other hand, it is for the party concerned to establish specifically how it would have been better able to ensure its defence in the absence of that procedural irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‐442/12, EU:T:2017:372, paragraph 145 and the case-law cited). |
| --- | --- |

68

On the other hand, it is for the party concerned to establish specifically how it would have been better able to ensure its defence in the absence of that procedural irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‐442/12, EU:T:2017:372, paragraph 145 and the case-law cited).

| 69 | In the second place, it should be noted that, in the present case, in the final disclosure, the Commission provided the interested parties with all the facts and considerations which it considered essential and on the basis of which it intended to introduce a definitive anti-dumping duty, including figures on injury indicators and the analysis of the trends that those indicators would have demonstrated. Specifically, the Commission had noted that sales of the Union industry had decreased by more than 6% and that that industry had lost around 2.5% of market share in a declining market. Moreover, still in respect of that industry, the Commission had indicated that a profitability considered to be low coupled with a loss of sales and market shares in the Union had placed the latter in a difficult economic and financial situation, and concluded, on the basis of an overall analysis of all injury indicators which it considered relevant and because of that economic and financial situation considered to be difficult, that that industry had suffered material injury within the meaning of Article 3 of the basic regulation. |
| --- | --- |

69

In the second place, it should be noted that, in the present case, in the final disclosure, the Commission provided the interested parties with all the facts and considerations which it considered essential and on the basis of which it intended to introduce a definitive anti-dumping duty, including figures on injury indicators and the analysis of the trends that those indicators would have demonstrated. Specifically, the Commission had noted that sales of the Union industry had decreased by more than 6% and that that industry had lost around 2.5% of market share in a declining market. Moreover, still in respect of that industry, the Commission had indicated that a profitability considered to be low coupled with a loss of sales and market shares in the Union had placed the latter in a difficult economic and financial situation, and concluded, on the basis of an overall analysis of all injury indicators which it considered relevant and because of that economic and financial situation considered to be difficult, that that industry had suffered material injury within the meaning of Article 3 of the basic regulation.

| 70 | The first complaint alleges infringement (i) of Article 20(4) of the basic regulation, which must be read in the light of paragraph 2 of the same article, and (ii) of the rights of defence owing to the failure to provide requested information in both emails from Jindal Saw of 1 February 2016 concerning, first, the communication of the injury indicators amended following discovery of the clerical error and, secondly, various costs of the Union industry. |
| --- | --- |

70

The first complaint alleges infringement (i) of Article 20(4) of the basic regulation, which must be read in the light of paragraph 2 of the same article, and (ii) of the rights of defence owing to the failure to provide requested information in both emails from Jindal Saw of 1 February 2016 concerning, first, the communication of the injury indicators amended following discovery of the clerical error and, secondly, various costs of the Union industry.

| 71 | As regards, in the first place, the failure to communicate the information requested by Jindal Saw concerning the corrections made to the indicators of injury to the Union, it should be observed that, first of all, in its written communication of 28 January 2016 informing Jindal Saw of certain corrections made to the indicators of injury to the Union industry, the Commission expressly mentioned which injury indicators had undergone changes as a result of the discovery of the clerical error, namely those relating, first, to overall consumption in the Union, second, to the market share of the exporting producers, third, to the market share of that industry and, fourth, to that industry’s sales prices. Next, an annex attached to that written communication set out the figures concerned, presented in the form of ranges as in the final disclosure. Finally, the Commission expressly stated in that written communication that those amendments had led neither to a change in the conclusions concerning the trends nor to a change in the final conclusions which had previously been disclosed to the interested parties. |
| --- | --- |

71

As regards, in the first place, the failure to communicate the information requested by Jindal Saw concerning the corrections made to the indicators of injury to the Union, it should be observed that, first of all, in its written communication of 28 January 2016 informing Jindal Saw of certain corrections made to the indicators of injury to the Union industry, the Commission expressly mentioned which injury indicators had undergone changes as a result of the discovery of the clerical error, namely those relating, first, to overall consumption in the Union, second, to the market share of the exporting producers, third, to the market share of that industry and, fourth, to that industry’s sales prices. Next, an annex attached to that written communication set out the figures concerned, presented in the form of ranges as in the final disclosure. Finally, the Commission expressly stated in that written communication that those amendments had led neither to a change in the conclusions concerning the trends nor to a change in the final conclusions which had previously been disclosed to the interested parties.

| 72 | It follows from those findings that the changes made by the Commission following the correction of the clerical error did not in themselves constitute essential facts and considerations within the meaning of Article 20(2) of the basic regulation, since those amendments did not make changes in the trends on which the injury assessment was based. Therefore, the Commission was not required by the basic regulation, in particular Article 20(4) of that regulation, to inform Jindal Saw of those amendments nor, a fortiori, was it obliged to act on Jindal Saw’s claim seeking to obtain further information in this connection. Therefore it has not infringed Article 20(2) and (4) of the basic regulation. |
| --- | --- |

72

It follows from those findings that the changes made by the Commission following the correction of the clerical error did not in themselves constitute essential facts and considerations within the meaning of Article 20(2) of the basic regulation, since those amendments did not make changes in the trends on which the injury assessment was based. Therefore, the Commission was not required by the basic regulation, in particular Article 20(4) of that regulation, to inform Jindal Saw of those amendments nor, a fortiori, was it obliged to act on Jindal Saw’s claim seeking to obtain further information in this connection. Therefore it has not infringed Article 20(2) and (4) of the basic regulation.

| 73 | As regards, moreover, the alleged infringement of the right to be heard, it must be held that, by its written communication of 28 January 2016, the Commission had submitted all necessary elements enabling Jindal Saw to express its views on the changes made following the correction of the clerical error, which Jindal Saw indeed did in its first email of 1 February 2016. In that regard, it should be noted, in addition, that, in the proceedings before the Court, the applicants have not submitted any new observations compared to those which had already been submitted to the Commission on 1 February 2016. It must therefore be held that the Commission adopted the contested regulation after Jindal Saw was able to submit any relevant observations and that the applicants have not shown in the present proceedings that Jindal Saw would have been better able to ensure its defence in the administrative procedure. |
| --- | --- |

73

As regards, moreover, the alleged infringement of the right to be heard, it must be held that, by its written communication of 28 January 2016, the Commission had submitted all necessary elements enabling Jindal Saw to express its views on the changes made following the correction of the clerical error, which Jindal Saw indeed did in its first email of 1 February 2016. In that regard, it should be noted, in addition, that, in the proceedings before the Court, the applicants have not submitted any new observations compared to those which had already been submitted to the Commission on 1 February 2016. It must therefore be held that the Commission adopted the contested regulation after Jindal Saw was able to submit any relevant observations and that the applicants have not shown in the present proceedings that Jindal Saw would have been better able to ensure its defence in the administrative procedure.

| 74 | As regards, in the second place, the failure to communicate information concerning certain costs of the Union industry, it should be noted that, admittedly, it would have been good administration on the part of the Commission to reply to that request, if only to make it known that it was confidential data to which it could not give access to Jindal Saw. However, the lack of a specific response to that request for information does not have the consequence that the Commission infringed Article 20(4) of the basic regulation, read in the light of paragraph 2 of that article, as the additional information requested by Jindal Saw did not constitute new facts and essential considerations. |
| --- | --- |

74

As regards, in the second place, the failure to communicate information concerning certain costs of the Union industry, it should be noted that, admittedly, it would have been good administration on the part of the Commission to reply to that request, if only to make it known that it was confidential data to which it could not give access to Jindal Saw. However, the lack of a specific response to that request for information does not have the consequence that the Commission infringed Article 20(4) of the basic regulation, read in the light of paragraph 2 of that article, as the additional information requested by Jindal Saw did not constitute new facts and essential considerations.

| 75 | Indeed, it was already apparent from the provisional regulation, adopted on 18 September 2015, that, when calculating the profitability of the Union industry, the Commission had taken into account not only the SG&A costs of the production entities of that industry, but also the costs of the selling entities of that industry. In this respect, recital 92 of the provisional regulation stated that ‘[t]he Commission [had] established the profitability of the cooperating Union producers by expressing the pre-tax net profit of the sales of the like product to unrelated customers in the Union as a percentage of the turnover of those sales’ and that ‘[m]ost of the sales of the [like] product in the EU [had been] made through the sales [entities] of the cooperating EU producers and their costs and profitability were taken into account’. |
| --- | --- |

75

Indeed, it was already apparent from the provisional regulation, adopted on 18 September 2015, that, when calculating the profitability of the Union industry, the Commission had taken into account not only the SG&A costs of the production entities of that industry, but also the costs of the selling entities of that industry. In this respect, recital 92 of the provisional regulation stated that ‘[t]he Commission [had] established the profitability of the cooperating Union producers by expressing the pre-tax net profit of the sales of the like product to unrelated customers in the Union as a percentage of the turnover of those sales’ and that ‘[m]ost of the sales of the [like] product in the EU [had been] made through the sales [entities] of the cooperating EU producers and their costs and profitability were taken into account’.

| 76 | The fact that Jindal Saw did not identify or correctly grasp the scope of those explanations provided in the provisional regulation and repeated in the final disclosure, according to which the costs of the selling entities of the Union industry were taken into account for the calculation of the profitability of that industry, does not mean that the clarifications made in that respect by the Commission at the meeting of 28 January 2016 constituted new facts and essential considerations. Therefore, the Commission did not infringe Article 20(2) and (4) of the basic regulation in this respect. |
| --- | --- |

76

The fact that Jindal Saw did not identify or correctly grasp the scope of those explanations provided in the provisional regulation and repeated in the final disclosure, according to which the costs of the selling entities of the Union industry were taken into account for the calculation of the profitability of that industry, does not mean that the clarifications made in that respect by the Commission at the meeting of 28 January 2016 constituted new facts and essential considerations. Therefore, the Commission did not infringe Article 20(2) and (4) of the basic regulation in this respect.

| 77 | It also follows from the fact that the information concerned, relating to the inclusion of the costs of the selling entities of the Union industry in the calculation of the profitability of that industry, had been in Jindal Saw’s possession since 19 September 2015, the date of the publication in the Official Journal of the provisional regulation, that Jindal Saw had the necessary information to properly make its observations as to that calculation. |
| --- | --- |

77

It also follows from the fact that the information concerned, relating to the inclusion of the costs of the selling entities of the Union industry in the calculation of the profitability of that industry, had been in Jindal Saw’s possession since 19 September 2015, the date of the publication in the Official Journal of the provisional regulation, that Jindal Saw had the necessary information to properly make its observations as to that calculation.

| 78 | The first complaint must therefore be rejected as being unfounded. |
| --- | --- |

78

The first complaint must therefore be rejected as being unfounded.

| 79 | As regards the second complaint, relating to the infringement of Article 20(5) of the basic regulation, in that Jindal Saw did not have a period of 10 days, or at least sufficient time to comment on the changes made to certain injury factors, it should be noted that it does not follow from that provision that the Commission is required to grant to the interested parties a deadline to comment on any changes it made as a result of their comments on the final disclosure. Such an obligation would have existed only if the Commission’s written communication of 28 January 2016 had contained essential facts and considerations within the meaning of Article 20(2) of the basic regulation, which was not the case. |
| --- | --- |

79

As regards the second complaint, relating to the infringement of Article 20(5) of the basic regulation, in that Jindal Saw did not have a period of 10 days, or at least sufficient time to comment on the changes made to certain injury factors, it should be noted that it does not follow from that provision that the Commission is required to grant to the interested parties a deadline to comment on any changes it made as a result of their comments on the final disclosure. Such an obligation would have existed only if the Commission’s written communication of 28 January 2016 had contained essential facts and considerations within the meaning of Article 20(2) of the basic regulation, which was not the case.

| 80 | In any event, it should be observed that, in the proceedings before the Court, the applicants did not put forward any further arguments in relation to the correction of the clerical error than those which Jindal Saw had already put forward in its first email of 1 February 2016. |
| --- | --- |

80

In any event, it should be observed that, in the proceedings before the Court, the applicants did not put forward any further arguments in relation to the correction of the clerical error than those which Jindal Saw had already put forward in its first email of 1 February 2016.

| 81 | Accordingly, there is nothing to suggest that the anti-dumping proceeding could have led to a different result if Jindal Saw had had more time to present its comments in this respect. |
| --- | --- |

81

Accordingly, there is nothing to suggest that the anti-dumping proceeding could have led to a different result if Jindal Saw had had more time to present its comments in this respect.

| 82 | Moreover, it may be noted that, even after consulting the documents containing data potentially influenced by the clerical error, in the context of the measure of organisation of procedure decided upon by the Court, the applicants did not put forward any new argument in relation to that error, accepting that the correction of that error did not require further amendments than those which had been made by the Commission and communicated to Jindal Saw on 28 January 2016. |
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82

Moreover, it may be noted that, even after consulting the documents containing data potentially influenced by the clerical error, in the context of the measure of organisation of procedure decided upon by the Court, the applicants did not put forward any new argument in relation to that error, accepting that the correction of that error did not require further amendments than those which had been made by the Commission and communicated to Jindal Saw on 28 January 2016.

| 83 | The second complaint must therefore be rejected as unfounded and, accordingly, the fourth plea must be rejected in its entirety. |
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83

The second complaint must therefore be rejected as unfounded and, accordingly, the fourth plea must be rejected in its entirety.

The first plea, alleging infringement of Article 2(8) and (9) of the basic regulation and, consequently, of Article 9(4) of the same regulation

The first plea, alleging infringement of Article 2(8) and (9) of the basic regulation and, consequently, of Article 9(4) of the same regulation

| 84 | The first plea is composed of two parts. |
| --- | --- |

84

The first plea is composed of two parts.

– The first part of the first plea, alleging infringement of Article 2(8) and (9) of the basic regulation

The first part of the first plea, alleging infringement of Article 2(8) and (9) of the basic regulation

| 85 | The first part of the plea comprises two complaints. |
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85

The first part of the plea comprises two complaints.

| 86 | By the first complaint, the applicants submit that the Commission infringed Article 2(8) and (9) of the basic regulation by not using the actual export prices charged by Jindal Saw for its sales to its selling entities and by having recourse, instead, to the construction of an export price. In this respect, they argue that, for the determination of the dumping margin, actual export prices may be disregarded not simply because of the existence of an association between the exporter and the importer, but only if it appears that those prices are unreliable because of that association, which the Commission has not demonstrated. |
| --- | --- |

86

By the first complaint, the applicants submit that the Commission infringed Article 2(8) and (9) of the basic regulation by not using the actual export prices charged by Jindal Saw for its sales to its selling entities and by having recourse, instead, to the construction of an export price. In this respect, they argue that, for the determination of the dumping margin, actual export prices may be disregarded not simply because of the existence of an association between the exporter and the importer, but only if it appears that those prices are unreliable because of that association, which the Commission has not demonstrated.

| 87 | In support of that complaint, the applicants rely, in the first place, on the wording of Article 2(9) of the basic regulation, the amendment of which, since the creation of the World Trade Organisation (WTO) on 1 January 1995, would demonstrate a change in the approach imposed by that provision. In their view, although the Union Courts have not yet ruled on the allocation of the burden of proof in the context of the application of that provision, paragraph 59 of the judgment of 26 November 2015, Giant (China) v Council (T‐425/13, not published, EU:T:2015:896), supports their interpretation of that provision. In addition, they refer to a specific regulation imposing anti-dumping duties, from which it would appear that the Commission has itself interpreted it in this way. |
| --- | --- |

87

In support of that complaint, the applicants rely, in the first place, on the wording of Article 2(9) of the basic regulation, the amendment of which, since the creation of the World Trade Organisation (WTO) on 1 January 1995, would demonstrate a change in the approach imposed by that provision. In their view, although the Union Courts have not yet ruled on the allocation of the burden of proof in the context of the application of that provision, paragraph 59 of the judgment of 26 November 2015, Giant (China) v Council (T‐425/13, not published, EU:T:2015:896), supports their interpretation of that provision. In addition, they refer to a specific regulation imposing anti-dumping duties, from which it would appear that the Commission has itself interpreted it in this way.

| 88 | In the second place, the applicants rely on the wording of the third subparagraph of Article 2(1) of the basic regulation, concerning the establishment of the normal value of the product concerned in the exporting country, from which it follows that an association between the parties to a sale is sufficient to exclude the prices charged between those two parties. The difference in the wording of those two paragraphs of that article shows that the Union legislature has made a substantial distinction between the two situations. |
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88

In the second place, the applicants rely on the wording of the third subparagraph of Article 2(1) of the basic regulation, concerning the establishment of the normal value of the product concerned in the exporting country, from which it follows that an association between the parties to a sale is sufficient to exclude the prices charged between those two parties. The difference in the wording of those two paragraphs of that article shows that the Union legislature has made a substantial distinction between the two situations.

| 89 | The Commission, supported by the intervener, disputes the validity of that complaint. |
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89

The Commission, supported by the intervener, disputes the validity of that complaint.

| 90 | As a preliminary note, it should be observed that Article 2(8) of the basic regulation provides that, in principle, the ‘export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union’. It is only ‘[i]n 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’ that the first subparagraph of Article 2(9) of the basic regulation allows the export price to be constructed on the basis of the price at which the imported products were first sold to an independent buyer. |
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90

As a preliminary note, it should be observed that Article 2(8) of the basic regulation provides that, in principle, the ‘export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union’. It is only ‘[i]n 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’ that the first subparagraph of Article 2(9) of the basic regulation allows the export price to be constructed on the basis of the price at which the imported products were first sold to an independent buyer.

| 91 | It is therefore apparent from Article 2(9) of the basic regulation that the Commission may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the Commission is required to base its determination of dumping on that price (see, to that effect, judgments of 21 November 2002, Kundan and Tata v Council, T‐88/98, EU:T:2002:280, paragraph 49, and of 25 October 2011, CHEMK and KF v Council, T‐190/08, EU:T:2011:618, paragraph 26). |
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91

It is therefore apparent from Article 2(9) of the basic regulation that the Commission may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the Commission is required to base its determination of dumping on that price (see, to that effect, judgments of 21 November 2002, Kundan and Tata v Council, T‐88/98, EU:T:2002:280, paragraph 49, and of 25 October 2011, CHEMK and KF v Council, T‐190/08, EU:T:2011:618, paragraph 26).

| 92 | As regards, in the first place, the successive amendments to the wording of the provision corresponding to the first subparagraph of Article 2(9) of the basic regulation, it should be observed that the words ‘where it appears that the export price is unreliable because of an association ... between the exporter and the importer’, concerned by this complaint, are found almost identically in the wording of the corresponding part of the sentence originally contained in Article 3(3) of Regulation (EEC) No 459/68 of the Council of 5 April 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Economic Community (OJ 1968 L 93, p. 1, ‘the 1968 anti-dumping regulation’). The wording used in the latter provision was ‘... where it appears that the export price is unreliable because of association ... between the exporter and the importer’. That wording reflected the wording of Article 2(e) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), signed in Geneva on 30 June 1967, which entered into force on 1 July 1968. |
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92

As regards, in the first place, the successive amendments to the wording of the provision corresponding to the first subparagraph of Article 2(9) of the basic regulation, it should be observed that the words ‘where it appears that the export price is unreliable because of an association ... between the exporter and the importer’, concerned by this complaint, are found almost identically in the wording of the corresponding part of the sentence originally contained in Article 3(3) of Regulation (EEC) No 459/68 of the Council of 5 April 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Economic Community (OJ 1968 L 93, p. 1, ‘the 1968 anti-dumping regulation’). The wording used in the latter provision was ‘... where it appears that the export price is unreliable because of association ... between the exporter and the importer’. That wording reflected the wording of Article 2(e) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), signed in Geneva on 30 June 1967, which entered into force on 1 July 1968.

| 93 | In his Opinion in NTN Toyo Bearing and Others v Council (113/77, EU:C:1979:39, ECR p. 1212 [1253]), Advocate General Warner, after noting that similarity, observed that Article 2(e) of the Agreement on Implementation of Article VI of the GATT was interpretative of Article VI of the GATT and that the terms of Article 3(3) of the 1968 anti-dumping regulation were not open to interpretation as meaning that the exclusion of actual prices would have been allowed only if it had been found that there were specific grounds to believe that, as a result of an association between the exporter and the importer, those prices were unreliable. Advocate General Warner concluded that the existence of an association between the exporter and the importer was sufficient to regard the export prices as unreliable. |
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93

In his Opinion in NTN Toyo Bearing and Others v Council (113/77, EU:C:1979:39, ECR p. 1212 [1253]), Advocate General Warner, after noting that similarity, observed that Article 2(e) of the Agreement on Implementation of Article VI of the GATT was interpretative of Article VI of the GATT and that the terms of Article 3(3) of the 1968 anti-dumping regulation were not open to interpretation as meaning that the exclusion of actual prices would have been allowed only if it had been found that there were specific grounds to believe that, as a result of an association between the exporter and the importer, those prices were unreliable. Advocate General Warner concluded that the existence of an association between the exporter and the importer was sufficient to regard the export prices as unreliable.

| 94 | Article 3(3) of the 1968 anti-dumping regulation was replaced by Article 2(8)(b) of Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1979 L 339, p. 1, ‘the 1979 anti-dumping regulation’), the latter provision being worded as follows:
  ‘In cases where there is no export price or where it appears that there is an association ... between the exporter and the importer or a third party, or that for other reasons the price actually paid or payable for the product sold for export to the [Union] is unreliable ...’ |
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94

Article 3(3) of the 1968 anti-dumping regulation was replaced by Article 2(8)(b) of Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1979 L 339, p. 1, ‘the 1979 anti-dumping regulation’), the latter provision being worded as follows:

‘In cases where there is no export price or where it appears that there is an association ... between the exporter and the importer or a third party, or that for other reasons the price actually paid or payable for the product sold for export to the [Union] is unreliable ...’

| 95 | However, it cannot be considered that that change in wording was intended to modify the rule concerning the burden of proof relating to the reliability or unreliability of prices in the event of an association between the exporter and the importer. By contrast, it has had the effect of extending the spectrum of situations in which the price actually paid for the product sold for export could not be used as a reference (see, to that effect, judgment of 14 March 1990, Gestetner Holdings v Council and Commission, C‐156/87, EU:C:1990:116, paragraph 30). This is the result of the addition of the words ‘for other reasons’, terms which were not included in the text of the new agreement on the application of Article VI of the GATT. The change in the structure of the sentence, in relation to that of Article 3(3) of the 1968 anti-dumping regulation, was necessary to incorporate that addition. Therefore, the substance of the rule as regards the reliability of the export price charged between related parties remained unchanged. |
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95

However, it cannot be considered that that change in wording was intended to modify the rule concerning the burden of proof relating to the reliability or unreliability of prices in the event of an association between the exporter and the importer. By contrast, it has had the effect of extending the spectrum of situations in which the price actually paid for the product sold for export could not be used as a reference (see, to that effect, judgment of 14 March 1990, Gestetner Holdings v Council and Commission, C‐156/87, EU:C:1990:116, paragraph 30). This is the result of the addition of the words ‘for other reasons’, terms which were not included in the text of the new agreement on the application of Article VI of the GATT. The change in the structure of the sentence, in relation to that of Article 3(3) of the 1968 anti-dumping regulation, was necessary to incorporate that addition. Therefore, the substance of the rule as regards the reliability of the export price charged between related parties remained unchanged.

| 96 | The wording of Article 2(8)(b) of the 1979 anti-dumping regulation was maintained in the corresponding provisions of the regulations which succeeded it until that wording was, in turn, replaced by the wording of Article 2(9) of Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community (OJ 1994 L 349, p. 1, ‘the 1994 anti-dumping regulation’), which refers to the assumption of an association by the words ‘where it appears that the export price is unreliable because of association ... between the exporter and the importer or a third party’. That wording is comparable to the original wording, as set out in Article 3(3) of the 1968 anti-dumping regulation, and to the wording of Article 2.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103, ‘the 1994 WTO Anti-dumping Agreement’). |
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96

The wording of Article 2(8)(b) of the 1979 anti-dumping regulation was maintained in the corresponding provisions of the regulations which succeeded it until that wording was, in turn, replaced by the wording of Article 2(9) of Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community (OJ 1994 L 349, p. 1, ‘the 1994 anti-dumping regulation’), which refers to the assumption of an association by the words ‘where it appears that the export price is unreliable because of association ... between the exporter and the importer or a third party’. That wording is comparable to the original wording, as set out in Article 3(3) of the 1968 anti-dumping regulation, and to the wording of Article 2.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103, ‘the 1994 WTO Anti-dumping Agreement’).

| 97 | It is apparent from the third and fifth recitals of the 1994 anti-dumping regulation that the amendment of the Community rules stemmed from the 1994 WTO Anti-dumping Agreement, the appropriate and transparent application of which was to be ensured by transposing its terms into Community law as far as possible. |
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97

It is apparent from the third and fifth recitals of the 1994 anti-dumping regulation that the amendment of the Community rules stemmed from the 1994 WTO Anti-dumping Agreement, the appropriate and transparent application of which was to be ensured by transposing its terms into Community law as far as possible.

| 98 | It is therefore clear that the Community legislature sought to align, as far as possible, the wording of the 1994 anti-dumping regulation with that of the 1994 WTO Anti-dumping Agreement. Having regard, in particular, to the absence of comments on the amendments made to the wording of the provision concerned both in the recitals and preparatory documents of the 1979 anti-dumping regulation, in which that wording was amended for the first time, and in those of the 1994 anti-dumping regulation, in which that wording was brought back into line with the wording used in the 1994 WTO Anti-dumping Agreement, it must be held that those amendments were not intended to change the burden of proof in the context of the application of the provision corresponding to the first subparagraph of Article 2(9) of the basic regulation. |
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98

It is therefore clear that the Community legislature sought to align, as far as possible, the wording of the 1994 anti-dumping regulation with that of the 1994 WTO Anti-dumping Agreement. Having regard, in particular, to the absence of comments on the amendments made to the wording of the provision concerned both in the recitals and preparatory documents of the 1979 anti-dumping regulation, in which that wording was amended for the first time, and in those of the 1994 anti-dumping regulation, in which that wording was brought back into line with the wording used in the 1994 WTO Anti-dumping Agreement, it must be held that those amendments were not intended to change the burden of proof in the context of the application of the provision corresponding to the first subparagraph of Article 2(9) of the basic regulation.

| 99 | That analysis is not invalidated by the applicants’ other arguments. |
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99

That analysis is not invalidated by the applicants’ other arguments.

| 100 | First, in so far as the applicants refer to paragraph 59 of the judgment of 26 November 2015, Giant (China) v Council (T‐425/13, not published, EU:T:2015:896), it should be noted that that paragraph cannot be considered out of context. However, in the case giving rise to that judgment, the Court did not rule on the burden of proof concerning the application of Article 2(9) of the basic regulation, but only on a different specific question. |
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100

First, in so far as the applicants refer to paragraph 59 of the judgment of 26 November 2015, Giant (China) v Council (T‐425/13, not published, EU:T:2015:896), it should be noted that that paragraph cannot be considered out of context. However, in the case giving rise to that judgment, the Court did not rule on the burden of proof concerning the application of Article 2(9) of the basic regulation, but only on a different specific question.

| 101 | Secondly, as regards the reference made by the applicants to Council Regulation (EC) No 930/2003 of 26 May 2003 terminating the anti-dumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway and the anti-dumping proceeding concerning imports of farmed Atlantic salmon originating in Chile and the Faeroe Islands (OJ 2003 L 133, p. 1), they rely on a statement, in recital 84 of that regulation, which has also been removed from its specific context, as is apparent from recitals 82 to 84 of that regulation. |
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101

Secondly, as regards the reference made by the applicants to Council Regulation (EC) No 930/2003 of 26 May 2003 terminating the anti-dumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway and the anti-dumping proceeding concerning imports of farmed Atlantic salmon originating in Chile and the Faeroe Islands (OJ 2003 L 133, p. 1), they rely on a statement, in recital 84 of that regulation, which has also been removed from its specific context, as is apparent from recitals 82 to 84 of that regulation.

| 102 | In the second place, with regard to the applicants’ argument that there is a difference in the wording between the first subparagraph of Article 2(9) of the basic regulation and the third subparagraph of Article 2(1) of the basic regulation, it should be noted that, unlike the first of those two provisions, the second does not originate in the 1994 WTO Anti-dumping Agreement, with the result that no a contrario argument can be usefully drawn from the difference in the wording between those provisions. Indeed, since it is not obliged to respect the wording of a text adopted within the WTO framework, the Union legislature was able to express, in the third subparagraph of Article 2(1) of the basic regulation, the same idea as in paragraph 9 of that article, but in a more explicit way. |
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102

In the second place, with regard to the applicants’ argument that there is a difference in the wording between the first subparagraph of Article 2(9) of the basic regulation and the third subparagraph of Article 2(1) of the basic regulation, it should be noted that, unlike the first of those two provisions, the second does not originate in the 1994 WTO Anti-dumping Agreement, with the result that no a contrario argument can be usefully drawn from the difference in the wording between those provisions. Indeed, since it is not obliged to respect the wording of a text adopted within the WTO framework, the Union legislature was able to express, in the third subparagraph of Article 2(1) of the basic regulation, the same idea as in paragraph 9 of that article, but in a more explicit way.

a contrario

| 103 | The first complaint must therefore be rejected as unfounded. |
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103

The first complaint must therefore be rejected as unfounded.

| 104 | By the second complaint, submitted in the alternative, the applicants assert that, in any event, during the administrative procedure, Jindal Saw demonstrated that the export prices it had charged to its selling entities were reliable, first, by reference to the prices charged to independent importers in the Union, second, by reference to the prices charged to independent importers in third countries and, third, by reference to the acceptance by the customs authorities of those export prices. |
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104

By the second complaint, submitted in the alternative, the applicants assert that, in any event, during the administrative procedure, Jindal Saw demonstrated that the export prices it had charged to its selling entities were reliable, first, by reference to the prices charged to independent importers in the Union, second, by reference to the prices charged to independent importers in third countries and, third, by reference to the acceptance by the customs authorities of those export prices.

| 105 | In the first place, with regard to the export prices provided by Jindal Saw concerning direct sales to independent buyers in the Union, the applicants submit that the Commission could not, on the one hand, refuse to use those actual prices for assessing the reliability of the export prices charged to Jindal Saw’s selling entities, on the ground that the quantities sold directly to independent buyers were too low and, on the other hand, use those actual prices in the context of constructing the export price. |
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105

In the first place, with regard to the export prices provided by Jindal Saw concerning direct sales to independent buyers in the Union, the applicants submit that the Commission could not, on the one hand, refuse to use those actual prices for assessing the reliability of the export prices charged to Jindal Saw’s selling entities, on the ground that the quantities sold directly to independent buyers were too low and, on the other hand, use those actual prices in the context of constructing the export price.

| 106 | In the second place, as regards the prices charged in connection with sales to independent buyers in third countries, the applicants submit that the Commission could not exclude them when assessing the reliability of the export prices charged to Jindal Saw’s selling entities on the ground that those sales did not sufficiently reflect Jindal Saw’s economic position and behaviour on the Union market. Indeed, according to the applicants, since the basic regulation itself provides, in Article 2(3) thereof, for the use of export prices to third countries for the construction of the normal value, those prices must also be considered sufficiently reliable to allow a comparison to be made for determining whether the prices charged to related importers in the Union are themselves reliable. The argument put forward by the Commission in this respect in the provisional regulation that Jindal Saw ‘did sell to the Union in large quantities via related traders during the same period’ is not relevant. In addition, the institutions have already allegedly used prices charged on third country markets to verify the reliability of export prices to the Union. |
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106

In the second place, as regards the prices charged in connection with sales to independent buyers in third countries, the applicants submit that the Commission could not exclude them when assessing the reliability of the export prices charged to Jindal Saw’s selling entities on the ground that those sales did not sufficiently reflect Jindal Saw’s economic position and behaviour on the Union market. Indeed, according to the applicants, since the basic regulation itself provides, in Article 2(3) thereof, for the use of export prices to third countries for the construction of the normal value, those prices must also be considered sufficiently reliable to allow a comparison to be made for determining whether the prices charged to related importers in the Union are themselves reliable. The argument put forward by the Commission in this respect in the provisional regulation that Jindal Saw ‘did sell to the Union in large quantities via related traders during the same period’ is not relevant. In addition, the institutions have already allegedly used prices charged on third country markets to verify the reliability of export prices to the Union.

| 107 | In the third place, as regards the acceptance, by the customs authorities of certain Member States, of the export prices charged by Jindal Saw to its selling entities, the Commission could not validly argue that those authorities were not properly performing their duties solely because the import duty rate was 0%, in particular because value added tax (VAT) is calculated on the customs value, which would have been a sufficient reason for those authorities to verify the export price. |
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107

In the third place, as regards the acceptance, by the customs authorities of certain Member States, of the export prices charged by Jindal Saw to its selling entities, the Commission could not validly argue that those authorities were not properly performing their duties solely because the import duty rate was 0%, in particular because value added tax (VAT) is calculated on the customs value, which would have been a sufficient reason for those authorities to verify the export price.

| 108 | According to the applicants, even assuming that, taken in isolation, those factors are not sufficient to show that the export prices charged by Jindal Saw to its selling entities were reliable, taken together and in the absence of evidence to the contrary, they establish that fact. |
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108

According to the applicants, even assuming that, taken in isolation, those factors are not sufficient to show that the export prices charged by Jindal Saw to its selling entities were reliable, taken together and in the absence of evidence to the contrary, they establish that fact.

| 109 | The Commission, supported by the intervener, disputes the validity of that complaint. |
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109

The Commission, supported by the intervener, disputes the validity of that complaint.

| 110 | As a preliminary observation, it should be noted that, in the realm of measures to protect trade, the Commission enjoys broad discretion by reason of the complexity of the economic, political and legal situations which it has to examine (see judgment of 27 September 2007, Ikea Wholesale, C‐351/04, EU:C:2007:547, paragraph 40 and the case-law cited). It follows that review of such assessments by the Union judicature must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power (see judgment of 7 February 2013, EuroChem MCC v Council, T‐84/07, EU:T:2013:64, paragraph 32 and the case-law cited). This is the case, in particular, with regard to the assessment of the reliability of export prices reported by an exporter (see, to that effect, judgment of 21 November 2002, Kundan and Tata v Council, T‐88/98, EU:T:2002:280, paragraph 50 and the case-law cited). |
| --- | --- |

110

As a preliminary observation, it should be noted that, in the realm of measures to protect trade, the Commission enjoys broad discretion by reason of the complexity of the economic, political and legal situations which it has to examine (see judgment of 27 September 2007, Ikea Wholesale, C‐351/04, EU:C:2007:547, paragraph 40 and the case-law cited). It follows that review of such assessments by the Union judicature must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power (see judgment of 7 February 2013, EuroChem MCC v Council, T‐84/07, EU:T:2013:64, paragraph 32 and the case-law cited). This is the case, in particular, with regard to the assessment of the reliability of export prices reported by an exporter (see, to that effect, judgment of 21 November 2002, Kundan and Tata v Council, T‐88/98, EU:T:2002:280, paragraph 50 and the case-law cited).

| 111 | Moreover, as is apparent from the examination of the first complaint, it follows from Article 2(9) of the basic regulation that, in the event of an association between the exporter and the importer, there is a presumption that the prices charged between them are not reliable, with the result that the Commission may, in principle, construct the export price. However, as the Commission admits, this is a rebuttable presumption, which the companies involved can rebut by presenting evidence that their prices are reliable. |
| --- | --- |

111

Moreover, as is apparent from the examination of the first complaint, it follows from Article 2(9) of the basic regulation that, in the event of an association between the exporter and the importer, there is a presumption that the prices charged between them are not reliable, with the result that the Commission may, in principle, construct the export price. However, as the Commission admits, this is a rebuttable presumption, which the companies involved can rebut by presenting evidence that their prices are reliable.

| 112 | In the present case, the applicants submit that, in the administrative proceedings, they submitted evidence to demonstrate that the export prices charged by Jindal Saw to its selling entities were reliable. |
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112

In the present case, the applicants submit that, in the administrative proceedings, they submitted evidence to demonstrate that the export prices charged by Jindal Saw to its selling entities were reliable.

| 113 | It is apparent from recital 35 of the provisional regulation that the Commission considered a priori that, in the case of imports by related importers, export prices had to be constructed in accordance with Article 2(9) of the basic regulation. Next, the Commission held, in recital 45 of that regulation, that neither Jindal Saw’s sales to independent parties in the Union nor its sales to third countries could be used to verify the reliability of the actual export prices charged by Jindal Saw to its selling entities. |
| --- | --- |

113

It is apparent from recital 35 of the provisional regulation that the Commission considered a priori that, in the case of imports by related importers, export prices had to be constructed in accordance with Article 2(9) of the basic regulation. Next, the Commission held, in recital 45 of that regulation, that neither Jindal Saw’s sales to independent parties in the Union nor its sales to third countries could be used to verify the reliability of the actual export prices charged by Jindal Saw to its selling entities.

| 114 | The arguments put forward by the applicants in support of their claim that they have demonstrated the reliability of export prices charged by Jindal Saw to its selling entities cannot succeed. |
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114

The arguments put forward by the applicants in support of their claim that they have demonstrated the reliability of export prices charged by Jindal Saw to its selling entities cannot succeed.

| 115 | In the first place, the fact that the Commission found, in recital 45 of the provisional regulation, that Jindal Saw’s sales to independent buyers in the Union, which represented 1% of Jindal Saw’s total sales in the Union, were not sufficient in volume and value to be representative and to serve as a benchmark for assessing the reliability of the export prices charged for sales to its selling entities is independent of whether the prices of those sales to independent buyers in the Union, taken in isolation, constituted reliable prices for the individual transactions in question. Indeed, the Commission did not argue that the prices charged by Jindal Saw to independent buyers in the Union were not reliable in themselves, but, by an assessment free of manifest error, that those sales were not sufficient, in terms of volume and value, to be representative and therefore to serve as a benchmark for assessing the reliability of the prices charged for the remaining 99% of Jindal Saw’s exports to the Union, which corresponded to sales between related parties. |
| --- | --- |

115

In the first place, the fact that the Commission found, in recital 45 of the provisional regulation, that Jindal Saw’s sales to independent buyers in the Union, which represented 1% of Jindal Saw’s total sales in the Union, were not sufficient in volume and value to be representative and to serve as a benchmark for assessing the reliability of the export prices charged for sales to its selling entities is independent of whether the prices of those sales to independent buyers in the Union, taken in isolation, constituted reliable prices for the individual transactions in question. Indeed, the Commission did not argue that the prices charged by Jindal Saw to independent buyers in the Union were not reliable in themselves, but, by an assessment free of manifest error, that those sales were not sufficient, in terms of volume and value, to be representative and therefore to serve as a benchmark for assessing the reliability of the prices charged for the remaining 99% of Jindal Saw’s exports to the Union, which corresponded to sales between related parties.

| 116 | In the second place, as regards the Commission’s refusal to use the export prices charged by Jindal Saw in its sales to third countries as a reference to verify the reliability of export prices to its selling entities, it must be considered that the Commission was able to establish, also without committing a manifest error of assessment, that the third country markets on which Jindal Saw sold its products were quite different from the Union market and consider, in essence, that it was not established that the pricing strategy on those markets was identical to that adopted on the Union market. |
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116

In the second place, as regards the Commission’s refusal to use the export prices charged by Jindal Saw in its sales to third countries as a reference to verify the reliability of export prices to its selling entities, it must be considered that the Commission was able to establish, also without committing a manifest error of assessment, that the third country markets on which Jindal Saw sold its products were quite different from the Union market and consider, in essence, that it was not established that the pricing strategy on those markets was identical to that adopted on the Union market.

| 117 | In this respect, the applicants’ argument that the basic regulation itself provides for the use of export prices to third countries for the construction of the normal value of the product concerned is irrelevant. Indeed, it should be recalled, first of all, that the calculation of the normal value and the calculation of the export price are separate transactions, based on different calculation methods, provided for in Article 2(3) to (7) of the basic regulation and Article 2(8) and (9) of the basic regulation respectively (see, to that effect, judgment of 5 October 1988, Canon and Others v Council, 277/85 and 300/85, EU:C:1988:467, paragraph 37). Therefore, it cannot be reasoned on the basis of a parallelism between the methods of determining the export price and the normal value. |
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117

In this respect, the applicants’ argument that the basic regulation itself provides for the use of export prices to third countries for the construction of the normal value of the product concerned is irrelevant. Indeed, it should be recalled, first of all, that the calculation of the normal value and the calculation of the export price are separate transactions, based on different calculation methods, provided for in Article 2(3) to (7) of the basic regulation and Article 2(8) and (9) of the basic regulation respectively (see, to that effect, judgment of 5 October 1988, Canon and Others v Council, 277/85 and 300/85, EU:C:1988:467, paragraph 37). Therefore, it cannot be reasoned on the basis of a parallelism between the methods of determining the export price and the normal value.

| 118 | Next, like the Commission, it is important to recall that, according to Article 2(3) of the basic regulation, the use of export prices for the calculation of the normal value is allowed ‘provided that those prices are representative’. However, the applicants did not prove during the administrative proceedings or before the Court that Jindal Saw’s export prices to third countries were representative. |
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118

Next, like the Commission, it is important to recall that, according to Article 2(3) of the basic regulation, the use of export prices for the calculation of the normal value is allowed ‘provided that those prices are representative’. However, the applicants did not prove during the administrative proceedings or before the Court that Jindal Saw’s export prices to third countries were representative.

| 119 | Finally, once it has been established that the normal value must actually be constructed, the Commission is to do so in accordance with Article 2(3) of the basic regulation. Thus, as the Commission argues, the use of the export price on third country markets is foreseen after it has been decided to construct the normal value, and not in order to decide whether or not to construct it. Therefore, even if it were accepted that the procedures for determining the normal value and for determining the export price were comparable, quod non, a parallel could not be drawn between the possibility of using export prices to third countries for constructing the normal value, provided for at a later stage of the procedure, and the question whether or not an export price should be constructed in accordance with the first subparagraph of Article 2(9) of the basic regulation. |
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119

Finally, once it has been established that the normal value must actually be constructed, the Commission is to do so in accordance with Article 2(3) of the basic regulation. Thus, as the Commission argues, the use of the export price on third country markets is foreseen after it has been decided to construct the normal value, and not in order to decide whether or not to construct it. Therefore, even if it were accepted that the procedures for determining the normal value and for determining the export price were comparable, quod non, a parallel could not be drawn between the possibility of using export prices to third countries for constructing the normal value, provided for at a later stage of the procedure, and the question whether or not an export price should be constructed in accordance with the first subparagraph of Article 2(9) of the basic regulation.

quod non

| 120 | Moreover, regardless of the fact that the applicants cannot place their legitimate expectations in maintaining the means initially chosen by an institution when it has a margin of appreciation for the choice of the means necessary to implement its policy (see judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‐310/12, not published, EU:T:2015:295, paragraph 120 and the case-law cited), the example they provide in support of that argument, according to which the institutions have already used export prices to third countries to verify the reliability of export prices to the Union, is not relevant. Indeed, Council Regulation (EU) No 905/2011 of 1 September 2011 terminating the partial interim review concerning the anti-dumping measures on imports of certain polyethylene terephthalate (PET) originating in India (OJ 2011 L 232, p. 14), which the applicants invoke, concerned a situation where export prices to the Union were not usable either because there was no export to the Union during certain months or because there was a price undertaking under which the company in question was forced to sell its products on the Union market at a price above a minimum import price fixed each month under a prior commitment. |
| --- | --- |

120

Moreover, regardless of the fact that the applicants cannot place their legitimate expectations in maintaining the means initially chosen by an institution when it has a margin of appreciation for the choice of the means necessary to implement its policy (see judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‐310/12, not published, EU:T:2015:295, paragraph 120 and the case-law cited), the example they provide in support of that argument, according to which the institutions have already used export prices to third countries to verify the reliability of export prices to the Union, is not relevant. Indeed, Council Regulation (EU) No 905/2011 of 1 September 2011 terminating the partial interim review concerning the anti-dumping measures on imports of certain polyethylene terephthalate (PET) originating in India (OJ 2011 L 232, p. 14), which the applicants invoke, concerned a situation where export prices to the Union were not usable either because there was no export to the Union during certain months or because there was a price undertaking under which the company in question was forced to sell its products on the Union market at a price above a minimum import price fixed each month under a prior commitment.

| 121 | In the third and final place, with regard to the applicants’ argument that the Commission should have accepted the actual export prices charged by Jindal Saw to its selling entities because those prices had been accepted by the customs and tax authorities of certain Member States, it should be noted that, according to the case-law, the concept of ‘customs value’ within the current meaning of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), and the notion of ‘export price’ within the meaning, in the context of the present case, of the basic regulation cannot be assimilated (see, to this effect, judgment of 14 September 1995, Descom Scales v Council, T‐171/94, EU:T:1995:164, paragraph 39). |
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121

In the third and final place, with regard to the applicants’ argument that the Commission should have accepted the actual export prices charged by Jindal Saw to its selling entities because those prices had been accepted by the customs and tax authorities of certain Member States, it should be noted that, according to the case-law, the concept of ‘customs value’ within the current meaning of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), and the notion of ‘export price’ within the meaning, in the context of the present case, of the basic regulation cannot be assimilated (see, to this effect, judgment of 14 September 1995, Descom Scales v Council, T‐171/94, EU:T:1995:164, paragraph 39).

| 122 | The applicants’ additional argument concerning the use of the customs value as a basis for calculating VAT must also be rejected on the same grounds. |
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122

The applicants’ additional argument concerning the use of the customs value as a basis for calculating VAT must also be rejected on the same grounds.

| 123 | As regards the applicants’ claim that, even if, taken in isolation, the elements examined in paragraphs 115 to 122 above are not sufficient to demonstrate that Jindal Saw’s export prices to its selling entities were reliable, taken together, those elements must be considered sufficient to demonstrate such reliability, it should be noted that those elements serve only as an indication. However, in view of the broad discretion available to the Commission to make its assessments as to whether or not the export prices charged between an exporter and an associated importer are reliable, the fact that the Commission considered that those elements, in so far as they could be accepted in the light of the objections it had raised, were not sufficient to demonstrate the reliability of the prices charged by Jindal Saw to its selling entities cannot be regarded as constituting a manifest error. |
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123

As regards the applicants’ claim that, even if, taken in isolation, the elements examined in paragraphs 115 to 122 above are not sufficient to demonstrate that Jindal Saw’s export prices to its selling entities were reliable, taken together, those elements must be considered sufficient to demonstrate such reliability, it should be noted that those elements serve only as an indication. However, in view of the broad discretion available to the Commission to make its assessments as to whether or not the export prices charged between an exporter and an associated importer are reliable, the fact that the Commission considered that those elements, in so far as they could be accepted in the light of the objections it had raised, were not sufficient to demonstrate the reliability of the prices charged by Jindal Saw to its selling entities cannot be regarded as constituting a manifest error.

| 124 | In view of the foregoing considerations, the first part of the first plea must be rejected as unfounded. |
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124

In view of the foregoing considerations, the first part of the first plea must be rejected as unfounded.

– The second part of the first plea, alleging infringement of Article 2(9) of the basic regulation and, consequently, of Article 9(4) of the same regulation

The second part of the first plea, alleging infringement of Article 2(9) of the basic regulation and, consequently, of Article 9(4) of the same regulation

| 125 | The second part of the first plea is also divided into two complaints. |
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125

The second part of the first plea is also divided into two complaints.

| 126 | By their first complaint, relying in particular on paragraphs 6.99 and 6.100 of the WTO Dispute Settlement Body panel report adopted on 1 February 2001 in the dispute entitled ‘United States — Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea’ (WT/DS 179/R, respectively, the ‘United States — Stainless Steel (Korea) dispute’ and the ‘panel report in the United States — Stainless Steel (Korea) dispute’), the applicants submit that the construction of export prices is intended to establish the prices that would have been paid by the related importer if sales had been made on normal commercial terms. In this respect, the export price constructed by the Commission would not be ‘reliable’ within the meaning of the second subparagraph of Article 2(9) of the basic regulation. |
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126

By their first complaint, relying in particular on paragraphs 6.99 and 6.100 of the WTO Dispute Settlement Body panel report adopted on 1 February 2001 in the dispute entitled ‘United States — Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea’ (WT/DS 179/R, respectively, the ‘United States — Stainless Steel (Korea) dispute’ and the ‘panel report in the United States — Stainless Steel (Korea) dispute’), the applicants submit that the construction of export prices is intended to establish the prices that would have been paid by the related importer if sales had been made on normal commercial terms. In this respect, the export price constructed by the Commission would not be ‘reliable’ within the meaning of the second subparagraph of Article 2(9) of the basic regulation.

| 127 | The unreliability of the export prices constructed by the Commission would be evidenced by the fact that those prices, on average, would represent only a fraction, sometimes even less than half, of the actual prices charged by Jindal Saw’s selling entities to independent buyers in the Union and a similar fraction of the prices charged by Jindal Saw to independent buyers in third country markets, which would not have been challenged by the Commission. In a few cases, the constructed export prices would even be zero or negative. |
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127

The unreliability of the export prices constructed by the Commission would be evidenced by the fact that those prices, on average, would represent only a fraction, sometimes even less than half, of the actual prices charged by Jindal Saw’s selling entities to independent buyers in the Union and a similar fraction of the prices charged by Jindal Saw to independent buyers in third country markets, which would not have been challenged by the Commission. In a few cases, the constructed export prices would even be zero or negative.

| 128 | In addition, the applicants argued in their comments on the replies to the measures of organisation of procedure, as specified at the hearing, that the unreliability of the export prices constructed in this case is also demonstrated by the fact that the Commission failed to include in the calculation of those prices a part of Jindal Saw’s sales to independent buyers in the Union. However, it should be noted that, at the hearing, the applicants withdrew the dispute which they had raised on this point. |
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128

In addition, the applicants argued in their comments on the replies to the measures of organisation of procedure, as specified at the hearing, that the unreliability of the export prices constructed in this case is also demonstrated by the fact that the Commission failed to include in the calculation of those prices a part of Jindal Saw’s sales to independent buyers in the Union. However, it should be noted that, at the hearing, the applicants withdrew the dispute which they had raised on this point.

| 129 | The Commission, supported by the intervener, disputes the validity of that complaint. |
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129

The Commission, supported by the intervener, disputes the validity of that complaint.

| 130 | As a preliminary remark, it should be recalled that, according to the second subparagraph of Article 2(9) of the basic regulation, when the export price is constructed on the basis of the price to the first independent buyer or on any other reasonable basis, ‘adjustment for all costs ... incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the [Union] frontier level’. The third subparagraph of Article 2(9) of the basic regulation provides that the items for which adjustment is to be made are to include, in particular, ‘a reasonable margin for [SG&A] costs and profit’. |
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130

As a preliminary remark, it should be recalled that, according to the second subparagraph of Article 2(9) of the basic regulation, when the export price is constructed on the basis of the price to the first independent buyer or on any other reasonable basis, ‘adjustment for all costs ... incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the [Union] frontier level’. The third subparagraph of Article 2(9) of the basic regulation provides that the items for which adjustment is to be made are to include, in particular, ‘a reasonable margin for [SG&A] costs and profit’.

| 131 | Furthermore, the third subparagraph of Article 2(9) of the basic regulation does not lay down the method for calculating or determining the margin for SG&A costs and profit, but merely refers to the reasonableness of that margin. Nor does the 1994 WTO Anti-Dumping Agreement prescribe a methodology in this respect, as indicated in paragraph 6.91 of the panel report in the United States — Stainless Steel (Korea) dispute. |
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131

Furthermore, the third subparagraph of Article 2(9) of the basic regulation does not lay down the method for calculating or determining the margin for SG&A costs and profit, but merely refers to the reasonableness of that margin. Nor does the 1994 WTO Anti-Dumping Agreement prescribe a methodology in this respect, as indicated in paragraph 6.91 of the panel report in the United States — Stainless Steel (Korea) dispute.

| 132 | In addition, the determination of reasonable margins for SG&A costs and profit is no exception to the application of the case-law cited in paragraph 110 above, according to which the Commission has a wide discretion in the field of trade defence measures, so that the Union Courts are required to exercise only limited control. That determination necessarily entails complex economic assessments (see judgment of 17 March 2015, RFA International v Commission, T‐466/12, EU:T:2015:151, paragraph 43 and the case-law cited). |
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132

In addition, the determination of reasonable margins for SG&A costs and profit is no exception to the application of the case-law cited in paragraph 110 above, according to which the Commission has a wide discretion in the field of trade defence measures, so that the Union Courts are required to exercise only limited control. That determination necessarily entails complex economic assessments (see judgment of 17 March 2015, RFA International v Commission, T‐466/12, EU:T:2015:151, paragraph 43 and the case-law cited).

| 133 | Lastly, it must be noted that, where the exporter and importer are associated, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of the basic regulation, inasmuch as the margins established in respect of SG&A costs and profits are excessive, to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate that it suggests where applicable (see judgment of 17 March 2015, RFA International v Commission, T‐466/12, EU:T:2015:151, paragraph 44 and the case-law cited). |
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133

Lastly, it must be noted that, where the exporter and importer are associated, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of the basic regulation, inasmuch as the margins established in respect of SG&A costs and profits are excessive, to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate that it suggests where applicable (see judgment of 17 March 2015, RFA International v Commission, T‐466/12, EU:T:2015:151, paragraph 44 and the case-law cited).

| 134 | As regards, more particularly, the first complaint, it should be noted at the outset that, contrary to what the Commission submits, where the export price is constructed, the aim is to establish a reliable export price at the Union frontier level, as stipulated in the second subparagraph of Article 2(9) of the basic regulation. This is also apparent from the case-law of the WTO dispute settlement bodies, especially from paragraph 6.99 of the panel report in the United States — Stainless Steel (Korea) dispute. |
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134

As regards, more particularly, the first complaint, it should be noted at the outset that, contrary to what the Commission submits, where the export price is constructed, the aim is to establish a reliable export price at the Union frontier level, as stipulated in the second subparagraph of Article 2(9) of the basic regulation. This is also apparent from the case-law of the WTO dispute settlement bodies, especially from paragraph 6.99 of the panel report in the United States — Stainless Steel (Korea) dispute.

| 135 | As regards, in the first place, the applicants’ argument that the unreliability of the export prices constructed by the Commission is demonstrated by the fact that they represent only a fraction of the prices charged by Jindal Saw’s selling entities to independent buyers, it follows from the wording of the first subparagraph of Article 2(9) of the basic regulation that the price paid by the first independent buyer is a starting point for the construction of an export price. Therefore, the constructed export price will necessarily correspond to a percentage of the price charged to the first independent buyer, taking into account the various adjustments which that provision requires to be made. |
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135

As regards, in the first place, the applicants’ argument that the unreliability of the export prices constructed by the Commission is demonstrated by the fact that they represent only a fraction of the prices charged by Jindal Saw’s selling entities to independent buyers, it follows from the wording of the first subparagraph of Article 2(9) of the basic regulation that the price paid by the first independent buyer is a starting point for the construction of an export price. Therefore, the constructed export price will necessarily correspond to a percentage of the price charged to the first independent buyer, taking into account the various adjustments which that provision requires to be made.

| 136 | In the second place, with regard to Jindal Saw’s sales to independent buyers in the Union, as set out in recitals 33 and 39 of the provisional regulation, those sales constituted around 1% of Jindal Saw’s total sales in the Union. However, as results from paragraph 115 above, in the context of its wide discretion, the Commission could consider, without making a manifest error, that such a small volume of sales could not be considered representative and, therefore, that the prices charged by Jindal Saw to independent buyers in the Union could not serve as a reference on their own to assess the reliability of export prices charged for sales between related parties. For the same reason, the Commission cannot be criticised for failing to assess the reliability of the export prices constructed by taking those sales as a reference point. |
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136

In the second place, with regard to Jindal Saw’s sales to independent buyers in the Union, as set out in recitals 33 and 39 of the provisional regulation, those sales constituted around 1% of Jindal Saw’s total sales in the Union. However, as results from paragraph 115 above, in the context of its wide discretion, the Commission could consider, without making a manifest error, that such a small volume of sales could not be considered representative and, therefore, that the prices charged by Jindal Saw to independent buyers in the Union could not serve as a reference on their own to assess the reliability of export prices charged for sales between related parties. For the same reason, the Commission cannot be criticised for failing to assess the reliability of the export prices constructed by taking those sales as a reference point.

| 137 | Therefore, since the two elements presented by the applicants in the first complaint are not such as to establish by themselves that the export prices constructed by the Commission are not reliable within the meaning of Article 2(9) of the basic regulation, this complaint should be rejected as unfounded. |
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137

Therefore, since the two elements presented by the applicants in the first complaint are not such as to establish by themselves that the export prices constructed by the Commission are not reliable within the meaning of Article 2(9) of the basic regulation, this complaint should be rejected as unfounded.

| 138 | By the second plea, the applicants contest the ‘reasonableness’, within the meaning of the third subparagraph of Article 2(9) of the basic regulation, of the SG&A cost margin and the profit margin retained by the Commission for the adjustments made in the context of the construction of export prices on the basis of the sales prices to the first independent buyers. |
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138

By the second plea, the applicants contest the ‘reasonableness’, within the meaning of the third subparagraph of Article 2(9) of the basic regulation, of the SG&A cost margin and the profit margin retained by the Commission for the adjustments made in the context of the construction of export prices on the basis of the sales prices to the first independent buyers.

| 139 | First, with regard to the determination of the SG&A costs to be taken into account in the construction of export prices, as the Commission based its calculations on the actual costs of Jindal Saw’s selling entities, the applicants claim, first, that it did not take sufficient account, in order to exclude them from the adjustments to be made for SG&A costs, of the costs related to the processing activities carried out by two of those selling entities, namely Jindal Saw Italia and Jindal Saw UK, which it could have done by using for those two entities the same SG&A cost margin as for the third selling entity, Jindal Saw España, which did not carry out processing activities or, at least, by applying for Jindal Saw UK the same SG&A cost margin as for Jindal Saw Italia. |
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139

First, with regard to the determination of the SG&A costs to be taken into account in the construction of export prices, as the Commission based its calculations on the actual costs of Jindal Saw’s selling entities, the applicants claim, first, that it did not take sufficient account, in order to exclude them from the adjustments to be made for SG&A costs, of the costs related to the processing activities carried out by two of those selling entities, namely Jindal Saw Italia and Jindal Saw UK, which it could have done by using for those two entities the same SG&A cost margin as for the third selling entity, Jindal Saw España, which did not carry out processing activities or, at least, by applying for Jindal Saw UK the same SG&A cost margin as for Jindal Saw Italia.

| 140 | Secondly, the applicants complain that the Commission did not adjust the actual SG&A costs of Jindal Saw’s selling entities to take into account the effect on these costs of the fact that the sales in the Union of those entities had not yet reached a normal level. |
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140

Secondly, the applicants complain that the Commission did not adjust the actual SG&A costs of Jindal Saw’s selling entities to take into account the effect on these costs of the fact that the sales in the Union of those entities had not yet reached a normal level.

| 141 | Thirdly, the applicants submit that the fact that the Commission used actual data relating to the SG&A costs of Jindal Saw’s selling entities for the construction of export prices does not mean that those data correspond, by definition, to the concept of a reasonable SG&A cost margin within the meaning of the third subparagraph of Article 2(9) of the basic regulation. |
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141

Thirdly, the applicants submit that the fact that the Commission used actual data relating to the SG&A costs of Jindal Saw’s selling entities for the construction of export prices does not mean that those data correspond, by definition, to the concept of a reasonable SG&A cost margin within the meaning of the third subparagraph of Article 2(9) of the basic regulation.

| 142 | In that regard, the applicants claim, first of all, that the third subparagraph of Article 2(9) of the basic regulation requires the Commission not to use a reasonable method to calculate the SG&A costs, but to use reasonable SG&A costs. Secondly, the applicants note that that provision does not mention that actual data should be used for SG&A costs, contrary to what is specified by the Union legislature, for example, in Article 2(6) of the basic regulation. There is therefore a difference between the requirement to use actual data for SG&A costs and the requirement to use a reasonable margin for those same costs. Finally, even if the actual costs were to be considered reasonable, this would not be an irrebuttable presumption. In this respect, the Commission did not explain why the elements mentioned by the applicants and the very high level of SG&A costs of Jindal Saw’s selling entities, as such, did not make the SG&A cost margin used in this case unreasonable. |
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142

In that regard, the applicants claim, first of all, that the third subparagraph of Article 2(9) of the basic regulation requires the Commission not to use a reasonable method to calculate the SG&A costs, but to use reasonable SG&A costs. Secondly, the applicants note that that provision does not mention that actual data should be used for SG&A costs, contrary to what is specified by the Union legislature, for example, in Article 2(6) of the basic regulation. There is therefore a difference between the requirement to use actual data for SG&A costs and the requirement to use a reasonable margin for those same costs. Finally, even if the actual costs were to be considered reasonable, this would not be an irrebuttable presumption. In this respect, the Commission did not explain why the elements mentioned by the applicants and the very high level of SG&A costs of Jindal Saw’s selling entities, as such, did not make the SG&A cost margin used in this case unreasonable.

| 143 | In the second place, with regard to the theoretical profit margin taken into account by the Commission in the context of the construction of the export price, the applicants criticise the Commission for having used a profit margin which would be irrational for an importer to which a very high margin of SG&A costs is applied at the same time. In their view, if the Commission decides to apply a theoretical profit margin, it must also use a reasonable theoretical SG&A cost margin to achieve that level of profit, since the reasonableness of the SG&A cost margin and that of the profit margin would also be assessed by examining those margins in relation to each other. |
| --- | --- |

143

In the second place, with regard to the theoretical profit margin taken into account by the Commission in the context of the construction of the export price, the applicants criticise the Commission for having used a profit margin which would be irrational for an importer to which a very high margin of SG&A costs is applied at the same time. In their view, if the Commission decides to apply a theoretical profit margin, it must also use a reasonable theoretical SG&A cost margin to achieve that level of profit, since the reasonableness of the SG&A cost margin and that of the profit margin would also be assessed by examining those margins in relation to each other.

| 144 | In the third and last place, with regard to the determination of the SG&A cost margin to be taken into account in the construction of export prices, the applicants submit that the Commission wrongly established that margin for Jindal Saw’s selling entities as a percentage expressing the ratio between their actual SG&A costs and their actual turnover, which corresponded to losses. Indeed, according to the applicants, the Commission should have established that margin by taking into account the actual turnover increased by the theoretical profit margin which it also took into account. |
| --- | --- |

144

In the third and last place, with regard to the determination of the SG&A cost margin to be taken into account in the construction of export prices, the applicants submit that the Commission wrongly established that margin for Jindal Saw’s selling entities as a percentage expressing the ratio between their actual SG&A costs and their actual turnover, which corresponded to losses. Indeed, according to the applicants, the Commission should have established that margin by taking into account the actual turnover increased by the theoretical profit margin which it also took into account.

| 145 | In conclusion, the applicants submit that, in view of the irregularities affecting the establishment of constructed export prices, the dumping margin adopted by the Commission was overestimated, with the result that the anti-dumping duty imposed, established on the basis of that margin, would exceed the dumping margin as it should have been determined, in breach of Article 9(4) of the basic regulation. |
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145

In conclusion, the applicants submit that, in view of the irregularities affecting the establishment of constructed export prices, the dumping margin adopted by the Commission was overestimated, with the result that the anti-dumping duty imposed, established on the basis of that margin, would exceed the dumping margin as it should have been determined, in breach of Article 9(4) of the basic regulation.

| 146 | The Commission, supported by the intervener, disputes the validity of that complaint. |
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146

The Commission, supported by the intervener, disputes the validity of that complaint.

| 147 | With regard, in the first place, to the applicants’ argument that the Commission did not use a reasonable SG&A margin to establish export prices in so far as it used the actual costs of Jindal Saw’s entities to establish that margin, it should be observed that, first of all, the Commission has a wide margin of discretion in this respect and that the consideration of the actual costs of the importer whose prices charged to the first independent buyers are used to establish the constructed export prices cannot be considered to be a manifest error of assessment, since those actual costs constitute a priori the most reliable data for establishing the adjustments provided for in that respect in the second subparagraph of Article 2(9) of the basic regulation. The fact that that provision does not explicitly provide for the possibility of establishing the SG&A cost margin on the basis of actual data does not mean that the use of actual costs would be unreasonable. |
| --- | --- |

147

With regard, in the first place, to the applicants’ argument that the Commission did not use a reasonable SG&A margin to establish export prices in so far as it used the actual costs of Jindal Saw’s entities to establish that margin, it should be observed that, first of all, the Commission has a wide margin of discretion in this respect and that the consideration of the actual costs of the importer whose prices charged to the first independent buyers are used to establish the constructed export prices cannot be considered to be a manifest error of assessment, since those actual costs constitute a priori the most reliable data for establishing the adjustments provided for in that respect in the second subparagraph of Article 2(9) of the basic regulation. The fact that that provision does not explicitly provide for the possibility of establishing the SG&A cost margin on the basis of actual data does not mean that the use of actual costs would be unreasonable.

| 148 | As regards, next, the taking into consideration of the costs linked to the processing activities of Jindal Saw Italia and Jindal Saw UK in establishing the actual SG&A costs of those two entities, it should be noted that, in recitals 45 to 47 of the contested regulation, the Commission essentially stated that an extrapolation on the basis of the SG&A costs of Jindal Saw España, which did not have any processing activity, was not compatible with the method it had adopted and which it considered appropriate, consisting of determining the SG&A costs on the basis of the actual costs incurred by each of Jindal Saw’s selling entities, and, moreover, that it had not been able to adjust the SG&A costs of Jindal Saw UK since no information on the breakdown of those costs had been provided to it after the adoption of the provisional regulation. |
| --- | --- |

148

As regards, next, the taking into consideration of the costs linked to the processing activities of Jindal Saw Italia and Jindal Saw UK in establishing the actual SG&A costs of those two entities, it should be noted that, in recitals 45 to 47 of the contested regulation, the Commission essentially stated that an extrapolation on the basis of the SG&A costs of Jindal Saw España, which did not have any processing activity, was not compatible with the method it had adopted and which it considered appropriate, consisting of determining the SG&A costs on the basis of the actual costs incurred by each of Jindal Saw’s selling entities, and, moreover, that it had not been able to adjust the SG&A costs of Jindal Saw UK since no information on the breakdown of those costs had been provided to it after the adoption of the provisional regulation.

| 149 | Since, as results from paragraph 147 above, the Commission’s choice to rely on the actual costs of Jindal Saw’s selling entities is not in itself open to criticism, it cannot be validly criticised for having refused to extrapolate either the SG&A costs of Jindal Saw España to take into account the costs related to the processing activities of the other two selling entities of Jindal Saw, or the SG&A costs of Jindal Saw Italia to take into account the costs related to the processing activities of Jindal Saw UK. |
| --- | --- |

149

Since, as results from paragraph 147 above, the Commission’s choice to rely on the actual costs of Jindal Saw’s selling entities is not in itself open to criticism, it cannot be validly criticised for having refused to extrapolate either the SG&A costs of Jindal Saw España to take into account the costs related to the processing activities of the other two selling entities of Jindal Saw, or the SG&A costs of Jindal Saw Italia to take into account the costs related to the processing activities of Jindal Saw UK.

| 150 | In addition, as is apparent from the case-law cited in paragraph 133 above, it is for the interested parties, in so far as they intend to contest part of the announced adjustments, to submit figures in support of their challenge, such as concrete calculations justifying it. |
| --- | --- |

150

In addition, as is apparent from the case-law cited in paragraph 133 above, it is for the interested parties, in so far as they intend to contest part of the announced adjustments, to submit figures in support of their challenge, such as concrete calculations justifying it.

| 151 | In the present case, it is apparent from recital 47 of the contested regulation that such elements have been communicated to the Commission concerning the processing activities of Jindal Saw Italia and that the Commission adjusted the SG&A costs of that selling entity on the basis of those elements, without mentioning any specific cost items before the Court which were not taken into account during that adjustment. However, such data were not communicated in respect of Jindal Saw UK, without the applicants providing a precise explanation in this respect. |
| --- | --- |

151

In the present case, it is apparent from recital 47 of the contested regulation that such elements have been communicated to the Commission concerning the processing activities of Jindal Saw Italia and that the Commission adjusted the SG&A costs of that selling entity on the basis of those elements, without mentioning any specific cost items before the Court which were not taken into account during that adjustment. However, such data were not communicated in respect of Jindal Saw UK, without the applicants providing a precise explanation in this respect.

| 152 | Finally, assuming that the claim that the costs related to the processing activities of Jindal Saw Italia and Jindal Saw UK are taken into account by extrapolating Jindal Saw España’s SG&A cost margin can be considered as a quantified dispute, it has been noted in paragraphs 148 and 149 above that that claim had been validly rejected by the Commission. |
| --- | --- |

152

Finally, assuming that the claim that the costs related to the processing activities of Jindal Saw Italia and Jindal Saw UK are taken into account by extrapolating Jindal Saw España’s SG&A cost margin can be considered as a quantified dispute, it has been noted in paragraphs 148 and 149 above that that claim had been validly rejected by the Commission.

| 153 | Finally, with regard to the applicants’ argument that the Commission did not take sufficient account of the effect on the actual SG&A costs of Jindal Saw’s selling entities because the sales in the Union of those entities had not yet reached a level considered to be normal, it should be noted that that argument cannot prosper, since it too has not been substantiated by figures concerning the adjustments to the SG&A cost margin that the applicants considered necessary on that ground. |
| --- | --- |

153

Finally, with regard to the applicants’ argument that the Commission did not take sufficient account of the effect on the actual SG&A costs of Jindal Saw’s selling entities because the sales in the Union of those entities had not yet reached a level considered to be normal, it should be noted that that argument cannot prosper, since it too has not been substantiated by figures concerning the adjustments to the SG&A cost margin that the applicants considered necessary on that ground.

| 154 | Admittedly, it cannot be excluded that a company may demonstrate that it is in a start-up phase on a new market and that, for that reason, its sales have not yet reached the level to which it is entitled on that market and present figures as to the effect of that situation. In such a case, the requirement to retain a reasonable SG&A cost margin requires, in principle, the Commission to evaluate that evidence and make the necessary adjustments accordingly. However, it should be noted that the applicants have not presented any such evidence in this case. |
| --- | --- |

154

Admittedly, it cannot be excluded that a company may demonstrate that it is in a start-up phase on a new market and that, for that reason, its sales have not yet reached the level to which it is entitled on that market and present figures as to the effect of that situation. In such a case, the requirement to retain a reasonable SG&A cost margin requires, in principle, the Commission to evaluate that evidence and make the necessary adjustments accordingly. However, it should be noted that the applicants have not presented any such evidence in this case.

| 155 | Secondly, as regards the Commission’s use of a theoretical profit margin of 3.7%, the Commission stated in essence in recital 50 of the contested regulation that, because of the loss-making situation of Jindal Saw’s selling entities, it was impossible to refer to actual data to establish the profit margin of those entities, with the result that, in the absence of any other reasonable reference element, an average profit had been used. |
| --- | --- |

155

Secondly, as regards the Commission’s use of a theoretical profit margin of 3.7%, the Commission stated in essence in recital 50 of the contested regulation that, because of the loss-making situation of Jindal Saw’s selling entities, it was impossible to refer to actual data to establish the profit margin of those entities, with the result that, in the absence of any other reasonable reference element, an average profit had been used.

| 156 | In this respect, it should be noted that, while Article 2(9) of the basic regulation provides that an adjustment for the profit margin should be made, that provision does not provide for a method for determining the profit margin, which should however be reasonable. |
| --- | --- |

156

In this respect, it should be noted that, while Article 2(9) of the basic regulation provides that an adjustment for the profit margin should be made, that provision does not provide for a method for determining the profit margin, which should however be reasonable.

| 157 | According to the case-law, such a reasonable profit margin may, where there is an association between producer and importer within the Union, be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer (see judgment of 25 October 2011, CHEMK and KF v Council, T‐190/08, EU:T:2011:618, paragraph 29 and the case-law cited). |
| --- | --- |

157

According to the case-law, such a reasonable profit margin may, where there is an association between producer and importer within the Union, be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer (see judgment of 25 October 2011, CHEMK and KF v Council, T‐190/08, EU:T:2011:618, paragraph 29 and the case-law cited).

| 158 | In the present case, Jindal Saw’s selling entities were incurring losses and the Commission submits that it was therefore not possible for it to use the actual profit margin of those entities. |
| --- | --- |

158

In the present case, Jindal Saw’s selling entities were incurring losses and the Commission submits that it was therefore not possible for it to use the actual profit margin of those entities.

| 159 | As to the fundamental criticism developed implicitly by the applicants, according to which, in the presence of a level of costs involving a deficit, no profit margin can be considered reasonable within the meaning of the third subparagraph of Article 2(9) of the basic regulation, it should be noted from the outset, as the Commission has done, that the second subparagraph of Article 2(9) does not provide for an adjustment for a ‘deficit’ margin, but only for a profit margin. Therefore, it is, in principle, not possible to make adjustments for losses if a company, as in this case, is loss-making. More importantly, as pointed out in paragraph 6.99 of the panel report in the United States — Stainless Steel (Korea) dispute, a related importer can, in principle, be expected to establish a price based on costs plus profits. In addition, as follows from the case-law recalled in paragraph 157 above, the data of a related importer concerning its situation, whether profitable or loss-making, may be influenced by the very fact of its association with an exporter. |
| --- | --- |

159

As to the fundamental criticism developed implicitly by the applicants, according to which, in the presence of a level of costs involving a deficit, no profit margin can be considered reasonable within the meaning of the third subparagraph of Article 2(9) of the basic regulation, it should be noted from the outset, as the Commission has done, that the second subparagraph of Article 2(9) does not provide for an adjustment for a ‘deficit’ margin, but only for a profit margin. Therefore, it is, in principle, not possible to make adjustments for losses if a company, as in this case, is loss-making. More importantly, as pointed out in paragraph 6.99 of the panel report in the United States — Stainless Steel (Korea) dispute, a related importer can, in principle, be expected to establish a price based on costs plus profits. In addition, as follows from the case-law recalled in paragraph 157 above, the data of a related importer concerning its situation, whether profitable or loss-making, may be influenced by the very fact of its association with an exporter.

| 160 | Nevertheless, that question is related to the particular situation of companies in a start-up phase, as such a phase may correspond to a period of deficit. However, as explained in paragraph 154 above, such a situation should be taken into account in the adjustments to be made in the context of the construction of export prices at the level of SG&A costs and on the basis of evidence and figures not available in this case. |
| --- | --- |

160

Nevertheless, that question is related to the particular situation of companies in a start-up phase, as such a phase may correspond to a period of deficit. However, as explained in paragraph 154 above, such a situation should be taken into account in the adjustments to be made in the context of the construction of export prices at the level of SG&A costs and on the basis of evidence and figures not available in this case.

| 161 | Therefore, the applicants have not demonstrated that the Commission had made a manifest error in making adjustments in this case to take account of a profit margin in the context of the construction of export prices. |
| --- | --- |

161

Therefore, the applicants have not demonstrated that the Commission had made a manifest error in making adjustments in this case to take account of a profit margin in the context of the construction of export prices.

| 162 | In the third place, with regard to the applicants’ argument that, since the Commission intended, at the same time, to establish the SG&A margin on the basis of the actual costs of Jindal Saw’s selling entities and to retain a theoretical profit margin when those entities were incurring losses, it should have established the SG&A cost margin on the basis of the percentage expressing the ratio between the actual SG&A costs and a theoretical turnover corresponding to the actual turnover plus that theoretical profit margin, it is sufficient to note that that claim is also linked to the high level of SG&A costs of Jindal Saw’s selling entities due to the start-up phase in which they would have been, which would have corresponded to a loss-making phase, and to the Commission’s taking into account of a theoretical profit margin. Therefore, as indicated in paragraph 160 above, that question concerns adjustments that should be made to the SG&A costs and on the basis of evidence and figures which have not, however, been provided in this case. |
| --- | --- |

162

In the third place, with regard to the applicants’ argument that, since the Commission intended, at the same time, to establish the SG&A margin on the basis of the actual costs of Jindal Saw’s selling entities and to retain a theoretical profit margin when those entities were incurring losses, it should have established the SG&A cost margin on the basis of the percentage expressing the ratio between the actual SG&A costs and a theoretical turnover corresponding to the actual turnover plus that theoretical profit margin, it is sufficient to note that that claim is also linked to the high level of SG&A costs of Jindal Saw’s selling entities due to the start-up phase in which they would have been, which would have corresponded to a loss-making phase, and to the Commission’s taking into account of a theoretical profit margin. Therefore, as indicated in paragraph 160 above, that question concerns adjustments that should be made to the SG&A costs and on the basis of evidence and figures which have not, however, been provided in this case.

| 163 | Finally, as regards the applicants’ assertion that, assuming that each of the elements they have submitted to prove the unreasonableness of the SG&A cost and profit margins used to construct the export price is not sufficient, on its own, to prove that allegation, those elements would constitute, taken together, a set of indicators which would be appropriate to establish that allegation, that assertion must also be rejected. It should be noted that those elements are unfounded, since, on the one hand, as regards the SG&A cost margin, the claims to exclude additional processing costs and to take into account the exceptionally high nature of the SG&A costs as a result of the start-up phase in which Jindal Saw’s selling entities found themselves are not based on evidence and figures, and, on the other hand, as regards the profit margin, the dispute is, in any event, based on data from Jindal Saw’s selling entities as to their profit or loss situation, which, in accordance with the case-law, must be regarded as dubious. Consequently, none of those elements can be taken as an indication of the unreasonableness of the SG&A cost and profit margins determined by the Commission in this case. |
| --- | --- |

163

Finally, as regards the applicants’ assertion that, assuming that each of the elements they have submitted to prove the unreasonableness of the SG&A cost and profit margins used to construct the export price is not sufficient, on its own, to prove that allegation, those elements would constitute, taken together, a set of indicators which would be appropriate to establish that allegation, that assertion must also be rejected. It should be noted that those elements are unfounded, since, on the one hand, as regards the SG&A cost margin, the claims to exclude additional processing costs and to take into account the exceptionally high nature of the SG&A costs as a result of the start-up phase in which Jindal Saw’s selling entities found themselves are not based on evidence and figures, and, on the other hand, as regards the profit margin, the dispute is, in any event, based on data from Jindal Saw’s selling entities as to their profit or loss situation, which, in accordance with the case-law, must be regarded as dubious. Consequently, none of those elements can be taken as an indication of the unreasonableness of the SG&A cost and profit margins determined by the Commission in this case.

| 164 | In the light of all the foregoing considerations, it is also necessary to reject the second complaint of the second part of the first plea as unfounded and, therefore, it is necessary to reject that part and that plea in their entirety. |
| --- | --- |

164

In the light of all the foregoing considerations, it is also necessary to reject the second complaint of the second part of the first plea as unfounded and, therefore, it is necessary to reject that part and that plea in their entirety.

The second plea, alleging infringement of Article 3(2) and (3) of the basic regulation and, consequently, of Article 3(6) and Article 9(4) of the same regulation

The second plea, alleging infringement of Article 3(2) and (3) of the basic regulation and, consequently, of Article 3(6) and Article 9(4) of the same regulation

| 165 | In the context of the second plea, the applicants claim that the Commission did not base the determination of the existence of injury to the Union industry on positive evidence and an objective examination. They submit that, for the analysis of the effects of the dumped imports on prices of a like product of that industry, and more particularly for the determination of the price undercutting of the product concerned in relation to the like product of the Union industry, the Commission did not carry out the comparison of prices at the same or at an appropriate level of trade, in breach of Article 3(2) and (3) of the basic regulation. |
| --- | --- |

165

In the context of the second plea, the applicants claim that the Commission did not base the determination of the existence of injury to the Union industry on positive evidence and an objective examination. They submit that, for the analysis of the effects of the dumped imports on prices of a like product of that industry, and more particularly for the determination of the price undercutting of the product concerned in relation to the like product of the Union industry, the Commission did not carry out the comparison of prices at the same or at an appropriate level of trade, in breach of Article 3(2) and (3) of the basic regulation.

| 166 | According to the applicants, the conclusions drawn from the price undercutting of the product concerned were used by the Commission for the determination of injury to the Union industry and the finding of the causal link between the imports of that product and that injury as well as for the calculation of the injury margin. Consequently, the errors made in the calculation of the undercutting would have an impact on those other elements of the contested regulation. In particular, the determination of the injury margin at an excessive level would result in the anti-dumping duty as set by that regulation exceeding the duty that would be sufficient to remove the injury caused to that industry, in breach of Article 9(4) of the basic regulation. |
| --- | --- |

166

According to the applicants, the conclusions drawn from the price undercutting of the product concerned were used by the Commission for the determination of injury to the Union industry and the finding of the causal link between the imports of that product and that injury as well as for the calculation of the injury margin. Consequently, the errors made in the calculation of the undercutting would have an impact on those other elements of the contested regulation. In particular, the determination of the injury margin at an excessive level would result in the anti-dumping duty as set by that regulation exceeding the duty that would be sufficient to remove the injury caused to that industry, in breach of Article 9(4) of the basic regulation.

| 167 | The Commission, supported by the intervener, disputes the validity of this plea. It submits that the applicants’ line of argument lacks precision. In addition, contrary to what the applicants claim, the undercutting would have been calculated on the basis of a comparison of prices at the same level of trade and at the appropriate stage. |
| --- | --- |

167

The Commission, supported by the intervener, disputes the validity of this plea. It submits that the applicants’ line of argument lacks precision. In addition, contrary to what the applicants claim, the undercutting would have been calculated on the basis of a comparison of prices at the same level of trade and at the appropriate stage.

| 168 | The Commission notes that the basic regulation does not define how the undercutting must be calculated and that the case-law does not prescribe any particular methodology for the calculation thereof. |
| --- | --- |

168

The Commission notes that the basic regulation does not define how the undercutting must be calculated and that the case-law does not prescribe any particular methodology for the calculation thereof.

| 169 | The Commission further recalls that all data used for the price undercutting calculation has been provided by the interested parties. |
| --- | --- |

169

The Commission further recalls that all data used for the price undercutting calculation has been provided by the interested parties.

| 170 | The Commission further submits that it is not apparent from the basic regulation, as interpreted by the case-law, that the undercutting calculation should be based on actual prices in such a way as to take account of actual competition in the market and the perspective of the customer, as claimed by the applicants. |
| --- | --- |

170

The Commission further submits that it is not apparent from the basic regulation, as interpreted by the case-law, that the undercutting calculation should be based on actual prices in such a way as to take account of actual competition in the market and the perspective of the customer, as claimed by the applicants.

| 171 | Finally, the Commission submits that, in any event, the price undercutting of the imports in question is only one of the indicators of the existence of material injury to the Union industry, that the findings relating to the undercutting concerning the other Indian exporting producer which cooperated in the investigation were not contested and that the analysis of the causal link between the imports in question and the injury sustained by that industry is based on considerations relating not only to prices, but also to volumes, which may themselves constitute a sufficient basis to conclude the existence of a causal link. |
| --- | --- |

171

Finally, the Commission submits that, in any event, the price undercutting of the imports in question is only one of the indicators of the existence of material injury to the Union industry, that the findings relating to the undercutting concerning the other Indian exporting producer which cooperated in the investigation were not contested and that the analysis of the causal link between the imports in question and the injury sustained by that industry is based on considerations relating not only to prices, but also to volumes, which may themselves constitute a sufficient basis to conclude the existence of a causal link.

| 172 | By the present plea, the applicants submit precisely that the Commission made errors in the calculation of the price undercutting which constitute infringements of Article 3 of the basic regulation and affect the validity of the contested regulation. |
| --- | --- |

172

By the present plea, the applicants submit precisely that the Commission made errors in the calculation of the price undercutting which constitute infringements of Article 3 of the basic regulation and affect the validity of the contested regulation.

| 173 | It should be borne in mind that, in accordance with Article 3(2) of the basic regulation, the determination of the existence of injury to the Union industry is to be based on positive evidence and is to involve an objective examination (i) of the volume of the dumped imports and the effect of those imports on prices in the Union market for like products, and (ii) of the consequent impact of those imports on that industry. |
| --- | --- |

173

It should be borne in mind that, in accordance with Article 3(2) of the basic regulation, the determination of the existence of injury to the Union industry is to be based on positive evidence and is to involve an objective examination (i) of the volume of the dumped imports and the effect of those imports on prices in the Union market for like products, and (ii) of the consequent impact of those imports on that industry.

| 174 | With regard more particularly to the effect of the dumped imports on prices, Article 3(3) of the basic regulation provides for the obligation to give consideration to whether there has been, for those imports, significant price undercutting as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. |
| --- | --- |

174

With regard more particularly to the effect of the dumped imports on prices, Article 3(3) of the basic regulation provides for the obligation to give consideration to whether there has been, for those imports, significant price undercutting as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree.

| 175 | The basic regulation does not contain any definition of the concept of price undercutting and does not lay down any method for the calculation of that concept. |
| --- | --- |

175

The basic regulation does not contain any definition of the concept of price undercutting and does not lay down any method for the calculation of that concept.

| 176 | The calculation of the price undercutting of the imports in question is carried out, in accordance with Article 3(2) and (3) of the basic regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports and it is used, more broadly, to assess that injury and to determine the injury margin, namely the injury elimination level. The obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of that industry when sold in the territory of the Union. In order to guarantee the fairness of that comparison, prices must be compared at the same level of trade. A comparison of prices obtained at different levels of trade, that is to say, one which does not include all the costs relating to the level of trade which must be taken into account, would necessarily be misleading in its results and would not allow a correct assessment to be made of the injury to the Union industry. Such a fair comparison is a prerequisite of the lawfulness of the calculation of the injury to that industry (see, to that effect, judgment of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, T‐122/09, not published, EU:T:2011:46, paragraphs 79 and 85). |
| --- | --- |

176

The calculation of the price undercutting of the imports in question is carried out, in accordance with Article 3(2) and (3) of the basic regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports and it is used, more broadly, to assess that injury and to determine the injury margin, namely the injury elimination level. The obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of that industry when sold in the territory of the Union. In order to guarantee the fairness of that comparison, prices must be compared at the same level of trade. A comparison of prices obtained at different levels of trade, that is to say, one which does not include all the costs relating to the level of trade which must be taken into account, would necessarily be misleading in its results and would not allow a correct assessment to be made of the injury to the Union industry. Such a fair comparison is a prerequisite of the lawfulness of the calculation of the injury to that industry (see, to that effect, judgment of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, T‐122/09, not published, EU:T:2011:46, paragraphs 79 and 85).

| 177 | According to recital 84 of the contested regulation, the undercutting margin has, in this case, been calculated as follows:
  ‘The Commission determined the price undercutting during the investigation period on the basis of the data submitted by the exporting producers and the Union industry by comparing:





  (a) | the weighted average sales prices per product type of the Union producers charged to unrelated customers on the Union market, adjusted to an ex‐works level; and |
| --- | --- | --- |

177

According to recital 84 of the contested regulation, the undercutting margin has, in this case, been calculated as follows:

‘The Commission determined the price undercutting during the investigation period on the basis of the data submitted by the exporting producers and the Union industry by comparing:

(a)

the weighted average sales prices per product type of the Union producers charged to unrelated customers on the Union market, adjusted to an ex‐works level; and

| (b) | the corresponding weighted average prices per product type of the imports from the cooperating Indian producers to the first independent customer on the Union market, established on a Cost, Insurance, Freight (CIF) basis, with appropriate adjustments for post-importation costs.’ |
| --- | --- |

(b)

the corresponding weighted average prices per product type of the imports from the cooperating Indian producers to the first independent customer on the Union market, established on a Cost, Insurance, Freight (CIF) basis, with appropriate adjustments for post-importation costs.’

| 178 | Moreover, in recital 93 of the contested regulation, the Commission concluded that there was, for the product concerned produced by Jindal Saw and sold in the Union, an undercutting of 30.9% on a weighted average basis, that is to say that the prices at which that product was sold in the Union by Jindal Saw were 30.9% lower than the price of a like product of the Union industry. |
| --- | --- |

178

Moreover, in recital 93 of the contested regulation, the Commission concluded that there was, for the product concerned produced by Jindal Saw and sold in the Union, an undercutting of 30.9% on a weighted average basis, that is to say that the prices at which that product was sold in the Union by Jindal Saw were 30.9% lower than the price of a like product of the Union industry.

| 179 | Thus, recital 84 of the contested regulation shows that the price comparison was made at the same level of trade, namely by taking into account the prices at an ex‐works level for the Union industry’s sales and the CIF prices for Jindal Saw’s sales. However, following questions put by the Court in the context of measures of organisation of procedure, the Commission stated that, in reality, that comparison had in fact taken into account, on the one hand, in respect of that industry, either the prices at an ex-works level of the production entities, when they sold directly to independent buyers, or the prices at an ex-works level of the selling entities and, on the other hand, in respect of Jindal Saw, it had taken into account the CIF prices, corresponding to the export price as constructed in the context of the determination of the dumping margin. As shown in the reply to the first plea, those CIF prices are based on export prices constructed taking into account various adjustments, in particular those intended to reflect the export price of the product concerned before any involvement of Jindal Saw’s selling entities. |
| --- | --- |

179

Thus, recital 84 of the contested regulation shows that the price comparison was made at the same level of trade, namely by taking into account the prices at an ex‐works level for the Union industry’s sales and the CIF prices for Jindal Saw’s sales. However, following questions put by the Court in the context of measures of organisation of procedure, the Commission stated that, in reality, that comparison had in fact taken into account, on the one hand, in respect of that industry, either the prices at an ex-works level of the production entities, when they sold directly to independent buyers, or the prices at an ex-works level of the selling entities and, on the other hand, in respect of Jindal Saw, it had taken into account the CIF prices, corresponding to the export price as constructed in the context of the determination of the dumping margin. As shown in the reply to the first plea, those CIF prices are based on export prices constructed taking into account various adjustments, in particular those intended to reflect the export price of the product concerned before any involvement of Jindal Saw’s selling entities.

| 180 | The Commission submits in this respect that the sales made by the selling entities of the Union industry were to be regarded as ‘equivalent ex-works’ sales, so that they had properly been taken into account as ‘ex-works’ sales of the like product of that industry for the undercutting calculation. Therefore, a price comparison was made between prices corresponding to the same level of trade. |
| --- | --- |

180

The Commission submits in this respect that the sales made by the selling entities of the Union industry were to be regarded as ‘equivalent ex-works’ sales, so that they had properly been taken into account as ‘ex-works’ sales of the like product of that industry for the undercutting calculation. Therefore, a price comparison was made between prices corresponding to the same level of trade.

| 181 | That submission cannot be approved. |
| --- | --- |

181

That submission cannot be approved.

| 182 | Even though the Commission stated in recital 84 of the contested regulation and at the hearing that it took into consideration, in the context of the comparison, the Union industry prices at the ‘ex-works’ level, in fact, it compared the prices of sales to the first independent buyers of that industry to Jindal Saw’s CIF prices. |
| --- | --- |

182

Even though the Commission stated in recital 84 of the contested regulation and at the hearing that it took into consideration, in the context of the comparison, the Union industry prices at the ‘ex-works’ level, in fact, it compared the prices of sales to the first independent buyers of that industry to Jindal Saw’s CIF prices.

| 183 | Since the Commission used the prices of sales to the first independent buyers for the like product of the Union industry, the requirement to compare the prices at the same level of trade required it to also compare them, with respect to Jindal Saw’s products, with the prices of sales to the first independent buyers. |
| --- | --- |

183

Since the Commission used the prices of sales to the first independent buyers for the like product of the Union industry, the requirement to compare the prices at the same level of trade required it to also compare them, with respect to Jindal Saw’s products, with the prices of sales to the first independent buyers.

| 184 | In addition, it should be noted that, on the one hand, the marketing of products carried out not directly by the producer, but through selling entities, implies the existence of costs and a profit margin specific to those entities, so that the prices charged by them to independent buyers are generally higher than the prices charged by producers in their direct sales to such buyers and thus cannot be assimilated to those latter prices. On the other hand, it follows from recitals 7 and 92 of the provisional regulation that, in this case, most of the Union sales of the Union industry were made by the sales entities of the two cooperating Union producers, which represent around 96% of the total Union production. |
| --- | --- |

184

In addition, it should be noted that, on the one hand, the marketing of products carried out not directly by the producer, but through selling entities, implies the existence of costs and a profit margin specific to those entities, so that the prices charged by them to independent buyers are generally higher than the prices charged by producers in their direct sales to such buyers and thus cannot be assimilated to those latter prices. On the other hand, it follows from recitals 7 and 92 of the provisional regulation that, in this case, most of the Union sales of the Union industry were made by the sales entities of the two cooperating Union producers, which represent around 96% of the total Union production.

| 185 | Therefore, by carrying out, for the price comparison made in the context of the undercutting calculation, the assimilation, referred to in paragraph 180 above, between the prices charged by the selling entities to independent buyers and the prices charged by producers in their direct sales to such buyers, only as regards the like product of the Union industry, the Commission took into account for that product a price which was inflated and therefore unfavourable to Jindal Saw, which performed the majority of its sales in the Union by way of selling entities, and whose situation differed in that regard from that of the other exporting producer which cooperated in the investigation. |
| --- | --- |

185

Therefore, by carrying out, for the price comparison made in the context of the undercutting calculation, the assimilation, referred to in paragraph 180 above, between the prices charged by the selling entities to independent buyers and the prices charged by producers in their direct sales to such buyers, only as regards the like product of the Union industry, the Commission took into account for that product a price which was inflated and therefore unfavourable to Jindal Saw, which performed the majority of its sales in the Union by way of selling entities, and whose situation differed in that regard from that of the other exporting producer which cooperated in the investigation.

| 186 | Furthermore, contrary to what the Commission maintains, it is not apparent from the judgment of 30 November 2011, Transnational Company Kazchrome and ENRC Marketing v Council and Commission (T‐107/08, EU:T:2011:704), that, as regards the product concerned, it was required to take into account the prices at the level of release for free circulation, which would have corresponded, in the present case, to the CIF price for the products of Indian exporting producers. |
| --- | --- |

186

Furthermore, contrary to what the Commission maintains, it is not apparent from the judgment of 30 November 2011, Transnational Company Kazchrome and ENRC Marketing v Council and Commission (T‐107/08, EU:T:2011:704), that, as regards the product concerned, it was required to take into account the prices at the level of release for free circulation, which would have corresponded, in the present case, to the CIF price for the products of Indian exporting producers.

| 187 | Indeed, it follows from paragraphs 62 and 63 of that judgment that, in that case, the Court considered that the prices used in the undercutting calculation should be prices negotiated with independent buyers, namely prices which could have been taken into account by them in order to decide whether they purchased the Union industry’s products or the products of the exporting producers in question, and not the prices at an intermediate stage. |
| --- | --- |

187

Indeed, it follows from paragraphs 62 and 63 of that judgment that, in that case, the Court considered that the prices used in the undercutting calculation should be prices negotiated with independent buyers, namely prices which could have been taken into account by them in order to decide whether they purchased the Union industry’s products or the products of the exporting producers in question, and not the prices at an intermediate stage.

| 188 | It follows from the foregoing considerations that, since the Commission took into consideration the prices of sales made by the selling entities linked to the main Union producer in order to determine the price of the like product of the Union industry while not taking into account the prices of sales of Jindal Saw’s selling entities to determine the price of the product concerned produced by Jindal Saw, it cannot be considered that the undercutting calculation was made by comparing prices at the same level of trade. |
| --- | --- |

188

It follows from the foregoing considerations that, since the Commission took into consideration the prices of sales made by the selling entities linked to the main Union producer in order to determine the price of the like product of the Union industry while not taking into account the prices of sales of Jindal Saw’s selling entities to determine the price of the product concerned produced by Jindal Saw, it cannot be considered that the undercutting calculation was made by comparing prices at the same level of trade.

| 189 | As is apparent from paragraph 176 above, the price comparison at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting of the product concerned. Accordingly, the calculation of the undercutting as carried out by the Commission in the context of the contested regulation must be considered contrary to Article 3(2) of the basic regulation. |
| --- | --- |

189

As is apparent from paragraph 176 above, the price comparison at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting of the product concerned. Accordingly, the calculation of the undercutting as carried out by the Commission in the context of the contested regulation must be considered contrary to Article 3(2) of the basic regulation.

| 190 | Consequently, the applicants’ challenge to the calculation of the price undercutting in respect of Jindal Saw’s products is well founded. |
| --- | --- |

190

Consequently, the applicants’ challenge to the calculation of the price undercutting in respect of Jindal Saw’s products is well founded.

| 191 | It follows from the above that the error made by the Commission in calculating the price undercutting of the product concerned for Jindal Saw’s products had the effect of taking into account undercutting of that price, the importance or even existence of which has not been properly established. |
| --- | --- |

191

It follows from the above that the error made by the Commission in calculating the price undercutting of the product concerned for Jindal Saw’s products had the effect of taking into account undercutting of that price, the importance or even existence of which has not been properly established.

| 192 | In recital 124 of the contested regulation, the Commission stressed the importance it attached to the existence of undercutting. In recitals 125 and 126 of that regulation, it considered that selling the product concerned at prices substantially lower than the ones charged by the Union industry, given undercutting of more than 30%, explained, on the one hand, an increase in sales volumes and market shares of that product and, on the other hand, the inability of that industry to increase its sales volumes on the Union market to a level that could ensure sustainable profit levels. In recital 126, it further found that imports at prices significantly undercutting the prices of that industry had significantly depressed prices on the Union market that in turn prevented price increases that would have occurred in the absence of those imports and concluded that there was a coincidence in time between those imports at prices significantly below the prices of the Union industry and the injury suffered by that industry. |
| --- | --- |

192

In recital 124 of the contested regulation, the Commission stressed the importance it attached to the existence of undercutting. In recitals 125 and 126 of that regulation, it considered that selling the product concerned at prices substantially lower than the ones charged by the Union industry, given undercutting of more than 30%, explained, on the one hand, an increase in sales volumes and market shares of that product and, on the other hand, the inability of that industry to increase its sales volumes on the Union market to a level that could ensure sustainable profit levels. In recital 126, it further found that imports at prices significantly undercutting the prices of that industry had significantly depressed prices on the Union market that in turn prevented price increases that would have occurred in the absence of those imports and concluded that there was a coincidence in time between those imports at prices significantly below the prices of the Union industry and the injury suffered by that industry.

| 193 | It follows from the recitals of the contested regulation mentioned in paragraph 192 above that the undercutting as calculated in that regulation is the basis for the conclusion that imports of the product concerned are at the root of the injury to the Union industry. In accordance with Article 1(1) and Article 3(6) of the basic regulation, the existence of a causal link between the dumped imports and the injury to the Union industry is a necessary condition for the imposition of anti-dumping duties. |
| --- | --- |

193

It follows from the recitals of the contested regulation mentioned in paragraph 192 above that the undercutting as calculated in that regulation is the basis for the conclusion that imports of the product concerned are at the root of the injury to the Union industry. In accordance with Article 1(1) and Article 3(6) of the basic regulation, the existence of a causal link between the dumped imports and the injury to the Union industry is a necessary condition for the imposition of anti-dumping duties.

| 194 | Moreover, as the applicants submit in the context of the third complaint in this part of the plea, it cannot be excluded that, if the price undercutting had been calculated correctly, the injury margin of the Union industry would have been established at a level below that of the dumping margin. In that case, in accordance with Article 9(4) of the basic regulation, the amount of the anti-dumping duty should be reduced to a rate which would be sufficient to remove that injury. |
| --- | --- |

194

Moreover, as the applicants submit in the context of the third complaint in this part of the plea, it cannot be excluded that, if the price undercutting had been calculated correctly, the injury margin of the Union industry would have been established at a level below that of the dumping margin. In that case, in accordance with Article 9(4) of the basic regulation, the amount of the anti-dumping duty should be reduced to a rate which would be sufficient to remove that injury.

| 195 | Therefore, since the error found in the calculation of price undercutting is likely to call into question the legality of the contested regulation, by invalidating the Commission’s entire analysis of causation (see, to that effect, judgment of 25 October 2011, Transnational Company Kazchrome and ENRC Marketing v Council, T‐192/08, EU:T:2011:619, paragraph 119 and the case-law cited), that regulation should be annulled in so far as it concerns Jindal Saw, without it being necessary to examine the third plea in law. |
| --- | --- |

195

Therefore, since the error found in the calculation of price undercutting is likely to call into question the legality of the contested regulation, by invalidating the Commission’s entire analysis of causation (see, to that effect, judgment of 25 October 2011, Transnational Company Kazchrome and ENRC Marketing v Council, T‐192/08, EU:T:2011:619, paragraph 119 and the case-law cited), that regulation should be annulled in so far as it concerns Jindal Saw, without it being necessary to examine the third plea in law.

Costs

Costs

| 196 | Under Article 134(1) of the Rules of Procedure, 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 been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants, in accordance with the form of order sought by the applicants. |
| --- | --- |

196

Under Article 134(1) of the Rules of Procedure, 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 been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants, in accordance with the form of order sought by the applicants.

| 197 | Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) to bear its own costs. In the circumstances of this case, the intervener is to bear its own costs. |
| --- | --- |

197

Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) to bear its own costs. In the circumstances of this case, the intervener is to bear its own costs.

| | On those grounds,
  THE GENERAL COURT (First Chamber, Extended Composition),
  hereby: |
| --- | --- |

On those grounds,

THE GENERAL COURT (First Chamber, Extended Composition),

hereby:

| | 1. | Annuls Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, in so far as it concerns Jindal Saw Ltd; |
| --- | --- | --- |

1.

1.

Annuls Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, in so far as it concerns Jindal Saw Ltd;

Annuls Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, in so far as it concerns Jindal Saw Ltd;

| | 2. | Orders the European Commission to bear its own costs and to pay the costs incurred by Jindal Saw and Jindal Saw Italia SpA; |
| --- | --- | --- |

2.

2.

Orders the European Commission to bear its own costs and to pay the costs incurred by Jindal Saw and Jindal Saw Italia SpA;

Orders the European Commission to bear its own costs and to pay the costs incurred by Jindal Saw and Jindal Saw Italia SpA;

| | 3. | Orders Saint-Gobain Pam to bear its own costs. |
| --- | --- | --- |

3.

3.

Orders Saint-Gobain Pam to bear its own costs.

Orders Saint-Gobain Pam to bear its own costs.

| | Pelikánová


  Valančius


  Nihoul




  Svenningsen


  Öberg


  Delivered in open court in Luxembourg on 10 April 2019.


  E. Coulon
  Registrar


  I. Pelikánová
  President |
| --- | --- |

Pelikánová

Valančius

Nihoul

Svenningsen

Öberg

Delivered in open court in Luxembourg on 10 April 2019.

E. Coulon

Registrar

I. Pelikánová

President

Table of contents

| | Background to the dispute |
| --- | --- |
| | Procedure and forms of order sought |
| | Law |
| | The admissibility of the observations of 18 October 2017 |
| | Substance |
| | The fourth plea, alleging infringement of Article 20(4) and (5) of the basic regulation and of the rights of defence |
| | The first plea, alleging infringement of Article 2(8) and (9) of the basic regulation and, consequently, of Article 9(4) of the same regulation |
| | – The first part of the first plea, alleging infringement of Article 2(8) and (9) of the basic regulation |
| | – The second part of the first plea, alleging infringement of Article 2(9) of the basic regulation and, consequently, of Article 9(4) of the same regulation |
| | The second plea, alleging infringement of Article 3(2) and (3) of the basic regulation and, consequently, of Article 3(6) and Article 9(4) of the same regulation |
| | Costs |

Background to the dispute

Procedure and forms of order sought

Law

The admissibility of the observations of 18 October 2017

Substance

The fourth plea, alleging infringement of Article 20(4) and (5) of the basic regulation and of the rights of defence

The first plea, alleging infringement of Article 2(8) and (9) of the basic regulation and, consequently, of Article 9(4) of the same regulation

– The first part of the first plea, alleging infringement of Article 2(8) and (9) of the basic regulation

– The second part of the first plea, alleging infringement of Article 2(9) of the basic regulation and, consequently, of Article 9(4) of the same regulation

The second plea, alleging infringement of Article 3(2) and (3) of the basic regulation and, consequently, of Article 3(6) and Article 9(4) of the same regulation

Costs

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  )	Language of the case: English.

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