Judgment — ECLI:EU:T:2015:151
Date: 2015-03-17
Language of the case: English
Court formation: Second Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary of the contested decisions in paragraph 46 above, the Commission, as it confirmed at the hearing, did not take a view, in those decisions, on the existence of a single economic entity containing RFA International, CHEMK and KF. In those decisions, the Commission held only that, on the one hand, RFA International performed the typical functions of a related importer, so that the export price had to be constructed on the basis of Article 2(9) of the Basic Regulation and that, on the other hand, the existence of a single economic entity was irrelevant in that regard once the conditions for the application of that provision were met. It follows that the first part of this plea must be rejected in that it is directed at conclusions which are not included in the contested decisions. 75 Next, even assuming that, as argued by RFA International, in categorising it as a related importer, the Commission had intended to discount the existence of a single economic entity in the present case, it should be noted, in any event, that the fact, if established, that RFA International forms, as it claims, a single economic entity with CHEMK and KF has, in the circumstances of this case, no impact on the assessment of the legality of the construction of the export price in the contested decisions. Indeed, it should be recalled that, in the context of the second part of this plea, RFA International has not established that the adjustments made pursuant to Article 2(9) of the Basic Regulation were excessive, as a result of the existence, according to it, of a single economic entity. In those circumstances, even assuming it does form a single economic entity with CHEMK and KF and that the Commission incorrectly discounted that notion, such an error would not affect the adjustments made by the Commission in respect of RFA International’s SG&A costs and its profits. 76 Finally, to the extent that RFA International refers to the conclusions drawn by the Council in the Implementing Regulation, which conclusions, according to it, the Commission had, according to point 3.2.3(a) of the interpretative notice, to take account of in adopting the contested decisions, it is important, first, to note that, while it is apparent from the respective fifth recitals of the contested decisions that the Commission intended, in principle, to follow in those decisions the conclusions of the review investigation, the fact remains that, with regard to the calculation of the export price, it has by no means taken a position on the existence of a single economic entity. It is only in the Implementing Regulation that an assessment is made, by the Council, of the evidence put forward by the CHEMK Group with a view to establishing the existence of a single economic entity. 77 However, it must be stated that the Implementing Regulation does not fall within the scope of this appeal, as RFA International further confirmed at the hearing. 78 Thus, since, according to the case-law, the Courts of the European Union may not rule ultra petita (judgments of 14 December 1962 in Meroni v High Authority, 46/59 and 47/59, ECR, EU:C:1962:44, p. 801, and of 28 June 1972 in Jamet v Commission, 37/71, ECR, EU:C:1972:57, paragraph 12), the Court may not, here, assess the legality of the grounds contained in recitals 24 and 37 in the preamble to the Implementing Regulation. 79 Secondly, to the extent that, at the hearing, RFA International indicated that, in view of its rights of defence, it would be appropriate to take account of all the elements, that is to say, not only the contested decisions, but also the review investigation, it should be noted that the question whether RFA International intends to invoke a breach by the Commission of its rights of defence is not sufficiently clearly apparent from the information provided at the hearing. 80 In any event, even assuming that RFA International intends to assert a breach of its rights of defence, it must be stated, as the Commission has rightly observed, that this would be a new plea put forward for the first time at the hearing and therefore inadmissible under Article 48(2) of the Rules of Procedure. 81 It should be noted that, in accordance with Article 48(2) of the Rules of Procedure, new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure (judgment of 16 March 2000 in Compagnie maritime belge transports and Others v Commission, C‑395/96 P and C‑396/96 P, ECR, EU:C:2000:132, paragraph 99). At the hearing, however, RFA International in no way asserted that any element of law or of fact had arisen during the procedure which would justify the submission of a new plea. 82 Moreover, while, according to the case-law, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the originating application, and which is closely connected therewith, will be declared admissible (order of 13 November 2001 in Dürbeck v Commission, C‑430/00 P, ECR, EU:C:2001:607, paragraph 17), it must however be stated that, in this case, the infringement of the rights of defence asserted by RFA International at the hearing cannot be considered to be such an amplification. On the contrary, to the extent that, in the application, RFA International challenged, by the present part of the first plea, the possible rejection by the Commission, in the contested decisions, of the existence of a single economic entity, the claim that RFA International’s rights of defence were infringed as a result of the arguments it put forward not being taken into account for the purposes of demonstrating the existence of such an entity is necessarily based on an inverse premise, that is to say, the alleged failure, by the Commission, to examine the arguments put forward by RFA International with a view to establishing the existence of a single economic entity or having the results of the review investigation taken into account. 83 In those circumstances, the first part of the first plea must be rejected and, consequently, the first plea in its entirety. The second plea in law, alleging manifest error of assessment and infringement of Article 11(9) of the Basic Regulation 84 By its second plea for annulment, RFA International challenges the Commission’s change of methodology for the purposes of calculating the dumping margin in the contested decisions. In essence, it submits that the Commission was wrong to find that there had been a change in circumstances warranting the change in methodology, with the result that the Commission made a manifest error of assessment and infringed Article 11(9) of the Basic Regulation. First, RFA International disputes the grounds of the contested decisions on the basis of which the Commission concluded that there was a change in circumstances within the meaning of Article 11(9) of the Basic Regulation. Next, it argues that the Commission has not shown that the change in circumstances was capable of warranting the application of a different method from that applied during the original investigation. Finally, RFA International submits that when applying Article 11(9) of the Basic Regulation, the Commission has limited discretion, so that that institution was required to apply the same method as that applied during the original investigation. 85 The Commission disputes the merits of those arguments. 86 As a preliminary point, it should be noted that it is settled case-law that the choice between the different methods of calculating the dumping margin and the assessment of the normal value of a product require an appraisal of complex economic situations, and the judicial review of such an appraisal must therefore be limited to verifying whether 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 in the appraisal of those facts or a misuse of powers (see judgment in Ikea Wholesale, paragraph 37 above, EU:C:2007:547, paragraph 41 and the case-law cited, and judgment of 8 July 2008 in Huvis v Council, T‑221/05, EU:T:2008:258, paragraph 39). 87 According to the wording of Article 11(9) of the Basic Regulation, in all refund procedures within the meaning of Article 11(8) of that regulation, the Commission must, provided that circumstances have not changed, apply the same methodology as that used in the original investigation leading to the imposition of the duty in question, with due account being taken of, inter alia, Article 2 of that regulation (judgment of 19 September 2013 in Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, ECR, EU:C:2013:572, paragraph 16). 88 According to the case-law, the exception whereby the Commission may, in the refund procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, for a derogation from or exception to a general rule must be interpreted narrowly (see judgment in Dashiqiao Sanqiang Refractory Materials v Council, paragraph 87 above, EU:C:2013:572, paragraph 17 and the case-law cited; judgment in Huvis v Council, paragraph 86 above, EU:T:2008:258, paragraph 41). Therefore, it is for the Commission to prove that the circumstances have changed if it intends to apply a method different from that applied during the original investigation (judgments in Dashiqiao Sanqiang Refractory Materials v Council, paragraph 87 above, EU:C:2013:572, paragraph 18, and Huvis v Council, paragraph 86 above, EU:T:2008:258, paragraph 41). 89 In that regard, given the requirement of a strict interpretation, it is important to add that, in order to be warranted under Article 11(9) of the Basic Regulation, the change in method must be related to a change in circumstances which is established (see, to that effect, judgment in Huvis v Council, paragraph 86 above, EU:T:2008:258, paragraph 47). 90 However, as regards the fact that such a change in circumstances for the purposes of Article 11(9) of the Basic Regulation constitutes an exception, it is apparent from the case-law that the requirement that a provision be interpreted strictly cannot permit the Commission to interpret and apply the provision in a manner inconsistent with its wording and purpose. In that respect, it must be observed that that provision prescribes in particular that the method applied must be consistent with Article 2 of the Basic Regulation (see judgment in Dashiqiao Sanqiang Refractory Materials v Council, paragraph 87 above, EU:C:2013:572, paragraph 19 and the case-law cited, and judgment in Huvis v Council, paragraph 86 above, EU:T:2008:258, paragraph 42; see also, to that effect, judgment of 17 November 2009 in MTZ Polyfilms v Council, T‑143/06, ECR, EU:T:2009:441, paragraph 43). 91 It follows, moreover, that if it should be found at the refund procedure stage that application of the method used in the original investigation was not in conformity with Article 2 of the Basic Regulation, the Commission would be required no longer to apply that method (see judgment of 16 December 2011 in Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09, ECR, EU:T:2011:764, paragraph 58 and the case-law cited), bearing in mind that it is for the Commission to demonstrate that the method used in the original investigation was not consistent with Article 2 of the Basic Regulation (see, to that effect, judgment in Huvis v Council, paragraph 86 above, EU:T:2008:258, paragraph 51). On the other hand, to warrant a change in methodology, it is not sufficient that a new method be more appropriate than the old, on the assumption none the less that the old method is consistent with Article 2 of the Basic Regulation (judgment in Huvis v Council, paragraph 86 above, EU:T:2008:258, paragraph 50). 92 It is in the light of those considerations that the merits of the present plea must be assessed. 93 In that respect, it is important, first, to note that it is not disputed that, in the contested decisions, the Commission, taking the view that there had been a change in circumstances, applied, for the calculation of the dumping margin, a different methodology from that applied during the original investigation. 94 It is apparent from the contested decisions that, during the refund investigation, the Commission calculated, first, an individual dumping margin for CHEMK and KF, respectively, before determining an average dumping margin for the CHEMK Group (‘the new method’). By contrast, during the original investigation, the institutions had grouped together all relevant data concerning CHEMK and KF’s domestic sales in the exporting country, costs of production, profitability and sales to the Union (‘the initial method’) (recital 31 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 32 of Decisions C(2012) 5585 final and C(2012) 5588 final). 95 Those two methods are thus distinguished, as the Commission stated in its pleadings without being contradicted by RFA International, by the time at which the data concerning CHEMK and KF were grouped together for the purposes of establishing the CHEMK Group’s dumping margin. Under the new method, those data were grouped together at the end of the calculation of the dumping margin, since the Commission began by calculating an individual dumping margin, for CHEMK and KF, respectively, on the basis of an export price and normal value applicable to them individually, before adding together the amounts thus reached and determining an average dumping margin. By contrast, under the initial method, the institutions had from the beginning grouped together the data relating to CHEMK and KF, so that no distinctions were made with respect to the export price and normal value. 96 In those circumstances, it is appropriate, second, to examine whether the Commission was entitled to apply the new method during the refund investigation. In that respect, given that, as it confirmed at the hearing, RFA International does not question the compatibility of the new method with Article 2 of the Basic Regulation, it is appropriate to check whether the Commission has shown that circumstances had in fact changed and that that change warranted the use of the new method. 97 In that regard, it is apparent from the contested decisions that the Commission concluded that there had been a change in circumstances on account, in essence, of a change in the structure of the CHEMK Group and in the organisation of CHEMK and KF’s export sales. In that respect, the Commission found, during the original investigation, that, on the one hand, only CHEMK acted as exporting producer of the CHEMK Group, since all export sales of CHEMK and KF — the two producers of the group — were made through CHEMK, and that, on the other, CHEMK exported the goods through several related operators before selling them to the end buyers in the Union. By contrast, according to the Commission, during the refund investigation, both CHEMK and KF were to be considered exporting producers since both companies sold their production individually and directly to RFA International with a view to their export to the European Union (recital 32 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 33 of Decisions C(2012) 5585 final and C(2012) 5588 final). Thus, according to the Commission, whereas, during the original investigation, the CHEMK Group carried out its exports by means of a single sales channel, exports were carried out, during the refund investigation, through two sales channels (recitals 41 and 46 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 42 and 47 of Decisions C(2012) 5585 final and C(2012) 5588 final). Next, the Commission found that, during the original investigation, it was virtually impossible to determine individual export prices for CHEMK and KF since the origin of the goods sold to independent customers in the Union was not specified on the sales lists, although the information was supplied during the refund investigation (recital 32 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 33 of Decisions C(2012) 5585 final and C(2012) 5588 final). Finally, regarding the structure of the sales in the domestic market of the exporting country, the Commission observed that, in the original investigation, a related trader sold parts of the group’s production on that domestic market, while, during the refund investigation, all domestic sales were carried out directly by CHEMK and KF (recital 32 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 33 of Decisions C(2012) 5585 final and C(2012) 5588 final). 98 It follows from consideration of the contested decisions that the conclusion as to the existence of a change in circumstances warranting a change in methodology was based, in essence, on the change in the structure of the CHEMK Group and in the organisation of its export sales as a result, in particular, of the integration of RFA International into that structure and of the changes to the export sales channels. The Commission thus identified CHEMK and KF as two exporting producers conducting their export sales through RFA International. In addition, on the domestic market of the exporting country, all sales were henceforth made directly by CHEMK and KF. Therefore, and in the light, moreover, of the possibility of having, contrary to what was the case during the original investigation, data enabling it to calculate the individual export prices for CHEMK and KF, the Commission applied the new method by calculating individual dumping margins for each of the two exporting producers before establishing, having regard to their membership of the CHEMK Group, a weighted average dumping margin for that group. 99 Thus, the CHEMK Group has undergone significant changes as a result, in particular, of the integration of RFA International into the group and in the organisation of export sales to the EU, as moreover admitted by RFA International both during the administrative procedure, in its letter of 20 June 2012, and, at the stage of these proceedings, in the reply. Furthermore, with regard to the export sales of the CHEMK Group, RFA International does not dispute that, while, during the original investigation, both the export sales of CHEMK and those of KF were carried out by CHEMK through several intermediaries, during the refund investigation, CHEMK and KF individually carried out export sales through RFA International. 100 It must be held that those changes in the structure of the CHEMK Group and in the organisation of its export sales to the Union represent a change in circumstances within the meaning of Article 11(9) of the Basic Regulation. 101 It should also be noted that this change in circumstances is such as to warrant the change of method used, in accordance with Article 11(9) of the Basic Regulation, since that change of method reflects the emergence of a second sales channel for the CHEMK Group and, thus, the change which occurred in the organisation of the sales of that group. 102 It should be recalled that, according to the new method, the Commission calculated individual dumping margins for each of the two exporting producers, CHEMK and KF, before determining an average dumping margin for the CHEMK Group. That calculation of individual dumping margins reflecting the duality of the CHEMK Group’s export channels requires the prior calculation of normal values and individual export prices for each of the two exporting producers of that group. 103 The arguments raised by RFA International in support of this plea are not such as to call those findings into question. Those arguments can be grouped, in essence, into three sets of arguments. 104 In a first series of arguments, RFA International disputes the grounds of the contested decisions on which the Commission based its conclusion as to the existence of a change in circumstances within the meaning of Article 11(9) of the Basic Regulation. 105 First, RFA International maintains that, both in the original investigation and in the refund investigation, there was only one exporting producer, so that there was no change in circumstances in that regard. Contrary to what the Commission states in the contested decisions, the institutions classified the CHEMK Group and not the company CHEMK as an exporting producer in the original investigation. Moreover, RFA International submits that, during the refund investigation, CHEMK and KF together constituted an exporting producer since those two companies belonged to a single economic entity. 106 However, while it is true that, as argued by RFA International, it is apparent from recital 62 of the Initial Regulation that the institutions had classified the CHEMK Group as an exporting producer, the fact remains that, as is apparent from the contested decisions and as stated by the Commission during the written procedure, without it being disputed by RFA International, only the company CHEMK exported the group’s goods to the Union. 107 In those circumstances, it must be considered that the mere formal classification, during the original investigation, of the CHEMK Group as an exporting producer is insufficient to show that the institutions intended, during the original investigation, to base the choice of the initial method on the finding that the CHEMK Group was to be classified as an exporting producer, rather than on the finding put forward by the Commission in its pleadings, that the CHEMK Group conducted its exports through only one of its two producers. It follows that, since, as is apparent from paragraph 100 above, a change in circumstances occurred with respect to the organisation of the CHEMK Group’s export sales, the mere formal classification, during the original investigation, of that group as an exporting producer does not invalidate the finding in paragraph 101 above that that change was such as to warrant the change of method used by the Commission. 108 Furthermore, with regard to the concept of a single economic entity, it should be noted that that concept was developed by settled case-law for the purpose of determining the normal value within the meaning of Article 2(1) of the Basic Regulation (judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, paragraph 35 above, EU:C:2012:78, paragraph 55). According to that case-law, where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company, responsible for the distribution of its products, which it controls financially, the use, for the purposes of determining the normal value, of the prices paid by the first independent buyer to that distribution company is warranted, given that those prices could be regarded as being those of the first sale of the product made in the ordinary course of trade, within the meaning of the first subparagraph of Article 2(1) of the Basic Regulation (see, to that effect, judgments of 5 October 1988 in Brother Industries v Council, 250/85, ECR, EU:C:1988:464, paragraph 15, and of 10 March 1992 in Canon v Council, C‑171/87, ECR, EU:C:1992:106, paragraphs 9 et 11). 109 Furthermore, it is important to note that that case-law was applied, by analogy, to the adjustments made under Article 2(10)(i) of the Basic Regulation to the export price (judgment in Interpipe Niko Tube and Interpipe NTRP v Council, paragraph 35 above, EU:T:2009:62, paragraph 177). In that context, it has been expressly held that, if a producer exports his goods to the European Union through a legally separate undertaking, but over which it holds economic control, the requirement of a finding reflecting the economic reality of the relationship between the producer and that sales company rather militates in favour of the application of the single economic entity concept when calculating the export price (judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, paragraph 35 above, EU:C:2012:78, paragraph 55). 110 It follows that the concept of a single economic entity is based, in particular, on the need to take account of the economic reality of the relationship between the producer and its sales company, the latter performing the duties of an integrated sales department for that producer. 111 In contrast, by the present argument, as it is summarised in paragraph 105 above, RFA International draws different conclusions from the concept of a single economic entity. Its argument is based on the premise that the fact that two producers belong to the same group and form a single economic entity together with a legally distinct company also belonging to that group and responsible for the duties of an integrated sales service places an obligation on the institutions to find that only that entity may be classified as an exporting producer. 112 Without it even being necessary to establish whether CHEMK and KF should be considered as belonging to a single economic entity, it should be noted that neither that premise, nor, therefore, the argument which follows therefrom, may be upheld. On the one hand, that premise disregards the economic reality which is that, despite belonging, as sister companies owned by the same shareholders, to the same group, or even, assuming it is established, to a single economic entity, the two producers in question constitute separate legal entities which, during the refund investigation, produced and marketed their goods individually. In other words, that premise disregards the existence of two distinct sales channels. On the other hand, RFA International has failed to explain why, where a single economic entity is found to exist, that economic reality should be disregarded. 113 Secondly, RFA International claims that the Commission incorrectly found that new export sales channels had come to light, since sales made to it by CHEMK and KF were to be considered, having regard to the existence of a single economic entity, as intragroup sales. 114 For the same reasons as those set out in paragraphs 108 to 112 above, that argument cannot be accepted. 115 Thirdly, RFA International argues that the Commission erred in finding that it would have been impossible, during the original investigation, to establish sales data per manufacturing entity, even though it had omitted, during the investigation, to ask for the submission of such data. According to RFA International, the Commission may not justify a change in circumstances by a change in its method of investigation. 116 RFA International’s arguments in that regard are ineffective. 117 On the one hand, as is clear from paragraphs 100 to 102 above, the conclusion relating to the existence of a change in circumstances justifying, under Article 11(9), the change in method used by the Commission may rest on the single change, acknowledged by RFA International, in the structure and organisation of the CHEMK Group’s export sales. In those circumstances, even assuming that, as argued by RFA International, the Commission omitted to ask for the submission of individual data during the original investigation, that omission would not vitiate the finding, in the contested decisions, of the existence of a change in circumstances. 118 On the other hand, it is apparent from the contested decisions that, according to the Commission, assuming that it did have available the necessary data to establish individual export prices for each producer, it could not have made such individual calculations since there was, during the original investigation, only one exporting producer (recitals 42 and 46 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 43 and 47 of Decisions C(2012) 5585 final and C(2012) 5588 final). RFA International does not dispute that finding, according to which individual calculations could not, in any event, be made during the original investigation. 119 Furthermore, and in any event, it is apparent from the material in the case-file that RFA International’s arguments are unfounded also. While it is true that the Commission has not explicitly requested to be provided with data on the export sales made by KF through CHEMK, it none the less follows from those factors that, as stated by the Commission in its pleadings, that institution did in fact ask CHEMK and KF to provide it with data that would have allowed it to calculate, individually, the normal value and the export price for each of those two companies. First, by letter of 9 March 2007, the Commission requested clarification of the transactions appearing in the information provided by CHEMK and, in particular, of their origin. Next, in the same letter, the Commission requested clarification as to CHEMK’s export sales. Finally, by letter of 20 April 2007, the Commission sought clarification as to export sales made through certain intermediate traders which were referred to therein. It is clear from the material in the case-file that, in response to those requests, the CHEMK Group failed to provide the personal data requested. 120 In that regard, it is also important to state that, in the present case, RFA International has not disputed the content of the requests for data referred to in paragraph 119 above. Furthermore, it has put forward no substantial argument to show that such data would not have enabled the Commission to calculate, on an individual basis, the normal value and export price concerning, respectively, CHEMK and KF. Instead, RFA International stated at the hearing that ‘perhaps ... the Commission [was] right ... when it [had] stated that it had asked for data in relation to the intermediate operators’, and added ‘that those intermediate operators were not sufficiently audited [to be able] to provide such information’. 121 Fourthly, RFA International submits that the alleged change of circumstances in the domestic market of the exporting country was negligible and could not be regarded as warranting a change in method. 122 Besides the fact that, by the arguments recalled in essence in the previous paragraph, RFA International admits the existence of a change in circumstances in the domestic market of the exporting country, it must be held that, even assuming that, as it claims, that change, because negligible, may not be used to justify a change of method, the fact remains that, as the Commission correctly explained in its pleadings, the change of method, including with respect to the determination of the normal value, is based on a set of factual changes. These cover, in particular, changes in the structure and organisation of the CHEMK Group’s export sales, which were, as is clear from paragraphs 100 to 102 above, in themselves sufficient to warrant the change of method used by the Commission. 123 In that regard, it is important to state that, as has already been noted in paragraph 102 above, it is precisely the existence of two exporting producers that warrants the application of the new method by which the Commission establishes, on the basis of normal values and individual export prices, two individual dumping margins for, respectively, CHEMK and KF, before establishing an average dumping margin for the CHEMK Group. 124 It follows that, even assuming that the considerations set out by the Commission in the contested decisions regarding a possible change in the market of the exporting country are vitiated by error, such an error would not be such as to affect the legality of the contested decisions. 125 In those circumstances, and without it being necessary to determine whether the Commission was entitled to classify the change in the market of the exporting country as a change in circumstances within the meaning of Article 11(9) of the Basic Regulation, it must be held that the arguments made in that regard by RFA International are ineffective. 126 Fifthly, RFA International claims that the statement in the contested decisions that the new method is more accurate is irrelevant since considerations of expediency do not warrant a change in circumstances or, therefore, of method. In addition, the Commission does not argue that the initial method was not consistent with Article 2 of the Basic Regulation. 127 Admittedly, according to the case-law cited in paragraph 91 above, in order for a change in methodology to be justified, it is not sufficient that a new method be more appropriate than the old method, in so far as the old method is consistent with Article 2 of the Basic Regulation. 128 However, in this case, it must be recalled that, as has already been noted, the Commission expressly based the application of a new method on the existence of a change in circumstances. 129 In those circumstances, the arguments alleging that the Commission supported the change in method on the basis of considerations of expediency and did not argue that the initial method was not consistent with Article 2 of the Basic Regulation do not vitiate the contested decisions and must therefore be rejected as ineffective. 130 In a second set of arguments, RFA International complains, in essence, that the Commission did not demonstrate that the alleged change in circumstances would have had an impact on the initial method used by the institutions, even though, under Article 11(9) of the Basic Regulation, the change in method must be necessary and directly related to the change in circumstances. However, the change in circumstances asserted by the Commission mainly concerns changes in the structure of export sales of the CHEMK Group, while the new method mainly affects the normal value. Moreover, the Commission failed to explain how changes relating to the structure of the group’s export sales could have affected the method of calculating the normal value, the export price or the dumping margin. 131 In the light of the considerations set out in paragraphs 101, 102, 122 and 123 and above, those arguments must be rejected. As has already been noted, the application of the new method, including in so far as it involved the calculation of an individual normal value for each of the producers, was warranted, under Article 11(9) of the Basic Regulation, by the change in circumstances relating to the structure and organisation of the sales of the CHEMK Group. 132 In a third set of arguments, RFA International maintains that, when applying Article 11(9) of the Basic Regulation, the Commission has limited discretion, with the result that, in the present case, the Commission was required to apply the initial method during the refund investigation. 133 First, RFA International submits that Article 18.3.1 of the Anti-Dumping Agreement gives precedence, in refund investigations, to the method for calculating the dumping margin used in the most recent investigation covering the dumping over the provisions of the Anti-Dumping Agreement. 134 In that regard, it should be noted that, according to settled case-law, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Courts of the European Union are to review the legality of measures adopted by the institutions of the European Union under Article 263, first paragraph, TFEU (judgments of 23 November 1999 in Portugal v Council, C‑149/96, ECR, EU:C:1999:574, paragraph 47; 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, ECR, EU:C:2003:4, paragraph 53; and Ikea Wholesale, paragraph 37 above, EU:C:2007:547, paragraph 29). However, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Courts of the European Union to review the legality of the EU measure in question in the light of the WTO rules (judgments in Portugal v Council, EU:C:1999:574, paragraph 49; Petrotub and Republica v Council, EU:C:2003:4, paragraph 54; and Ikea Wholesale, paragraph 37 above, EU:C:2007:547, paragraph 30). 135 It is apparent from recital 3 in the preamble to the Basic Regulation that the purpose of that regulation is, inter alia, to transpose into EU law as far as possible the rules contained in the Anti-Dumping Agreement, which include, in particular, those relating to the duration and review of the anti-dumping duties (see, by analogy, judgment in Petrotub and Republica v Council, paragraph 134 above, EU:C:2003:4, paragraph 55). 136 It follows that the provisions of the Basic Regulation must, so far as is possible, be interpreted in a manner consistent with the corresponding provisions of the Anti-Dumping Agreement (see judgment in Petrotub and Republica v Council, paragraph 134 above, EU:C:2003:4, paragraph 57 and the case-law cited). 137 On the one hand, the Anti-Dumping Agreement does not include any provisions equivalent to those of Article 11(9) of the Basic Regulation, with the result that the rule contained in that provision may not be considered a transposition of one of the detailed rules of that agreement which must be interpreted in accordance with the latter (Opinion of Advocate General Cruz Villalón in Valimar, C‑374/12, ECR, EU:C:2014:118, point 74). 138 On the other hand, it should be noted that Articles 18.3 and 18.3.1 of the Anti-Dumping Agreement provide as follows: ‘18.3. Subject to subparagraphs 3.1 and 3.2, the provisions [of the Anti-Dumping Agreement] shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement. 18.3.1 With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply.’ 139 It therefore follows from the wording and context of the provisions referred to in paragraph 138 above that, unlike Article 11(9) of the Basic Regulation, which identifies the method applicable in any refund investigation, Article 18.3.1 of the Anti-Dumping Agreement is part of the final provisions of that agreement and, more specifically, of those set out in Article 18.3 thereof, which determine its applicability in time. RFA International itself also appears to recognise as much in its pleadings since it states that Article 18.3.1 of the Anti-Dumping Agreement ‘would apply even if the original method for calculation of the dumping margin, originally used before the entry into force of the [Anti-Dumping Agreement], has become inconsistent with the [Anti-Dumping Agreement] after the [Anti-Dumping Agreement]’s entry into force’. 140 It follows that, as correctly pointed out by the Commission, Article 11(9) of the Basic Regulation does not implement Article 18.3.1 of the Anti-Dumping Agreement, with the result that the latter provision is irrelevant in the context of this plea. 141 Secondly, RFA International claims that the Commission fettered its discretion in undertaking, in point 3.2.3(a) of the interpretative notice, to apply the initial method during the refund investigation. 142 However, according to settled case-law, an interpretative note like the interpretative notice which, according to its preamble, sets out the guidelines regarding the application of Article 11(8) of the Basic Regulation cannot have the effect of modifying the mandatory rules contained in a regulation (judgment of 12 February 2014 in Beco v Commission, T‑81/12, ECR, EU:T:2014:71, paragraph 50; see also, to that effect, judgments of 28 January 1992 in Soba, C‑266/90, ECR, EU:C:1992:36, paragraph 19, and of 22 April 1993 in Peugeot v Commission, T‑9/92, ECR, EU:T:1993:38, paragraph 44). 143 According to established case-law, the Commission is bound by the guidelines and notices that it issues, but only to the extent that they do not depart from higher-ranking rules (judgment in Beco v Commission, paragraph 142 above, EU:T:2014:71, paragraph 51; see also, by analogy, judgment of 2 December 2010 in Holland Malt v Commission, C‑464/09 P, ECR, EU:C:2010:733, paragraph 47 and the case-law cited). 144 It follows that, contrary to what RFA International claims, it does not flow from point 3.2.3(a) of the interpretative notice that the Commission was required, in all circumstances and without exception, to apply, during a refund investigation, the same method as that applied during the original investigation. Such a restriction of the Commission’s discretion would be inconsistent with the possibility, established under Article 11(9) of the Basic Regulation, of changing method in the event of a change in circumstances. 145 In the light of the foregoing, the second plea put forward by the applicant must be rejected. 146 In the light of all the foregoing considerations, the action must be dismissed in its entirety. Costs 147 Under Article 87(2) 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 RFA International has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders RFA International, LP to pay the costs. Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 17 March 2015. [Signatures] * Language of the case: English.