Judgment — ECLI:EU:T:2013:67
Date: 2013-02-07
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary in OJ 2009 C 248, p. 5), which shows an infringement of Article 81 EC between E.ON AG, jointly and severally with its wholly-owned subsidiary E.ON Ruhrgas AG, and GDF Suez SA in the natural gas sector. The applicant explains that the undertakings in question acted as direct purchasers, importers and wholesalers of Russian gas at Waidhaus, and that their cartel was likely to increase or distort the purchase prices negotiated with suppliers of Russian gas at Waidhaus. 79 Similarly, the applicant refers to Case C-358/89 Extramet Industrie v Council [1992] ECR I-3813 and Case T-58/99 Mukand and Others v Council [2001] ECR II-2521 to substantiate the impact that anti‑competitive behaviour might have on dumping assessments. 80 Second, the Council also made a manifest error of assessment and failed to state reasons in the contested regulation when, for the purposes of calculating the cost of the natural gas, it refused to deduct the export duty of 30% on that gas, while deducting the costs of transport and making an upwards adjustment to take account of local distribution costs, as is clear from recital 18 to the contested regulation. 81 The reasoning followed is inconsistent and contradictory, since, in the applicant’s submission, just as Russian consumers do not have to pay for the gas to be transported from Russia to Waidhaus – which is why the costs of transport of the gas were deducted – the duty of 30% charged on exports of gas from Russia, which the applicant never pays for the production of the product concerned in Russia, ought to have been deducted as well. The institutions also made an upwards adjustment of 15% to take account of local distribution, without the slightest reasonable basis. 82 In the reply, the applicant further maintains that the mere fact of combining the price of gas at Waidhaus, the export duty of 30% and the 15% adjustment for local distribution costs constitutes an infringement of Article 2(5) of the basic regulation and a manifest error of assessment, in so far as that leads to the costs and profits of export sales being added to the costs and profits of domestic gas sales. 83 In that connection, the Court points out, as regards, in the first place, the choice of Waidhaus as the reference price, that the institutions are not required to consider every reference price during an anti-dumping proceeding, but must be prepared to examine in depth the proposals made by the parties, in the event of doubt concerning the choice of the reference price (see, to that effect, Case C-16/90 Nölle [1991] ECR I‑5163, paragraph 32). 84 In the present case, it is not apparent that, in the contested regulation, the Council made a manifest error of assessment in selecting the price of gas at Waidhaus. That price seems reasonable on a number of accounts. 85 As was noted in recital 18 to the contested regulation, Waidhaus is the main hub for Russian gas sales to the European Union. It is apparent from the case-file that Waidhaus is a German town on the route of the main gas pipelines between Russia and the European Union and, in terms of the number of gas supply contracts negotiated and the volume of gas concerned, is the main hub for gas exported by Russian producers to the European Union. 86 The price of gas negotiated at Waidhaus is therefore that charged by the Russian sellers to their European customers and not an intra‑Community price, contrary to the applicant’s assertions in the application. 87 Having regard to the volume of gas concerned and the number of contracts negotiated, there is no indication that the price of Russian gas at Waidhaus is not the result of market forces free from distortion. 88 As regards the E.ON/GDF decision (see paragraph 78 above), it is sufficient to note that, although it relates to sales of gas from Russia, the E.ON/GDF decision only concerns the examination of a market-sharing agreement in Germany and France between E.ON and GDF for sales of gas to their customers. The decision does not relate to an examination of the market for the wholesale export of Russian gas to the European Union as a whole, or the examination of the relationships between E.ON and GDF with their supplier of Russian gas. 89 Similarly, as regards the judgments in Extramet Industrie v Council and Mukand and Others v Council (paragraph 79 above), the Court notes that those judgments do not address the issue of whether the institutions determined the gas costs on a reasonable basis. In particular, the judgment in Extramet Industrie v Council addresses the institutions’ obligation to consider whether the injury on the basis of which they intend to impose an anti-dumping duty actually derived from dumped imports or from other factors (Extramet Industrie v Council, paragraph 79 above, paragraph 16). The judgment in Mukand and Others v Council also addresses the issue of whether, when deciding whether or not injury had been caused and whether or not there was any causal link between any such injury and the subsidised imports, other factors were capable of causing the damage to the Community industry (Mukand and Others v Council, paragraph 79 above, paragraph 41). Those judgments do not support the conclusion that the institutions made a manifest error of assessment in the basis chosen in order to determine the gas costs to be taken into account in the present case. 90 Lastly, although the applicant disputes that the Waidhaus price is much higher than the price of the gas sold on the Russian domestic market, it is not clear either that the Waidhaus price is indeed higher than the price of gas negotiated in the United Kingdom, the United States or Canada. The institutions did not therefore choose the highest reference price on the market. Nor is it certain that the export price of gas to the Baltic States is not comparable to that of the gas which passes through Waidhaus. 91 As regards, in the second place, the non-deduction of the 30% export tax and the 15% adjustment for local distribution costs, it must, first of all, be stated that, although, at the stage of the reply, the applicant argued that the combination of those factors infringed Article 2(5) of the basic regulation and constituted a manifest error of assessment, that argument simply amplifies the plea put forward by the applicant in the application, tending to show that that combination is inconsistent. 92 The argument in question must therefore be held to be admissible, contrary to what the Council argued at the hearing. For a plea which amplifies a submission put forward previously, whether directly or by implication, and which is closely connected with that submission, will be declared admissible (Case T-419/03 Altstoff Recycling Austria v Commission [2011] ECR II-975, paragraph 44). 93 Next, in order to show that the adjustment is in its view inconsistent, the applicant relies on a case that led to the adoption of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti‑dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4). 94 However, it is apparent from recital 97 to Regulation No 954/2006 that the costs of the Russian gas were adjusted on the basis of the price of gas for export to Western Europe, net of transport costs and excise duty. No reference is made to export tax, contrary to what the applicant claims. 95 In addition, the Council justified export tax not being deducted by the fact that Gazprom’s prices were not influenced by the amount of the export tax. The Council also stated that those prices were influenced only by what price its customers were willing to pay. At the hearing, the Council repeated its view that what matters is the price paid at Waidhaus, and that knowing the composition of that price is irrelevant. 96 The applicant has not been able to explain or to show how the price setting by Gazprom at Waidhaus could have been influenced by the amount of the export tax. It simply denied that 30% export tax constituted a reasonable basis. 97 It must therefore be found that the Council has not made a manifest error of assessment in not deducting that tax from the price paid at Waidhaus. 98 Since the applicant has simply denied, without adducing further evidence, that the local distribution costs used to calculate the constructed normal value were reasonable, it must also be found that the Commission did not make a manifest error of assessment in that regard. 99 Moreover, it is important to note that, since transport costs had been deducted in order to calculate the price of gas, it appears logical to adjust that calculation in addition by taking into account local distribution costs. 100 Lastly, the Court rejects the applicant’s argument alleging failure to state the reasons for the refusal to deduct the export tax on Russian gas and the adjustment made for local distribution costs. The statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to the observations which it has made during the administrative procedure (Case T-410/06 Foshan City Nanhai Golden Step Industrial v Council [2010] ECR II‑879, paragraph 127). 101 In this case, it is apparent from recital 37 to the contested regulation, that the applicant – which it does not dispute – had been informed of the conclusions regarding the SG&A costs which would or would not be taken into account in calculating the constructed normal value, and that it was able to submit its observations in that regard, which relieved the Council of the need to repeat those explanations in the body of the contested regulation, so that it could confine itself to the matters of law and of fact on which that regulation is based. The argument alleging a failure to state reasons cannot therefore be upheld. 102 The second part of the first plea is therefore unfounded. 103 It follows from all of the foregoing that the first plea must be regarded as unfounded and must therefore be rejected. Second plea, alleging infringement of Article 2(3) and (6) of the basic regulation and also Article 11(9) thereof 104 The applicant divides this plea into two parts. It maintains that it was unreasonable to take into account, in the present case, a profit margin, added to the cost of manufacturing to establish the normal value. That approach infringes Article 11(9) of the basic regulation (first part of the second plea) and Article 2(3) and (6) of the basic regulation (second part of the second plea). Infringement of Article 11(9) of the basic regulation 105 The applicant submits that all the findings of the initial expiry review regulation which did not deal specifically with the applicant must remain valid. It adds that a new exporter review, pursuant to Article 11(4) of the basic regulation, is a partial re-opening of the initial investigation as regards the data relating to the new exporter taken individually. That has the effect that all the data of the initial regulation which are not based on data specific to Russian companies, and which are therefore not specific to the applicant, must be maintained, since they concern the method used for the expiry review. In addition, the choice of a new investigation period should affect only the data relating specifically to the applicant. 106 Indeed, the profit margin used in the contested regulation is disproportionately in excess of the profit margin that had been found to be the rate normally realised on sales in the same category of products in Russia. That disproportion shows that the institutions had recourse to a different method from that used for Regulation No 1911/2006, in breach of Article 11(9) of the basic regulation. It is unlikely that between 2005-2006, the period taken into account in Regulation No 1911/2006, and 2008, the period taken into account in the contested regulation, the profit margin normally realised in Russia on the same general category of products could have tripled, even if the price of gas had fluctuated. 107 In that connection, Article 11(9) of the basic regulation provides that in review investigations, provided that circumstances have not changed, the Commission is to apply the same methodology as in the investigation which led to the duty. 108 Consequently, it is necessary to establish whether the methodological difference relied on by the applicant exists and, if it does, to examine it in the light of Article 11(9) of the basic regulation in order to ascertain whether its existence infringes it (see, to that effect, Case T-299/05 Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II‑565, paragraph 163). 109 During the initial investigation, as during the new exporter review investigation, the amounts for selling, general and administrative costs and for profits were established pursuant to Article 2(6)(c) of the basic regulation. 110 In recitals 60 and 61 of Regulation No 1911/2006, the Council had stated as follows: ‘(60) As for Algeria, SG&A costs and profit could not be established on the basis of the chapeau of Article 2(6), first sentence, of the basic Regulation because the related manufacturers did not have representative domestic sales of the product concerned in the ordinary course of trade. Article 2(6)(a) of the basic Regulation could not be applied, since there are only these two producers subject to the investigation. Article 2(6)(b) was not applicable either, since the manufacturing costs for products belonging to the same general category of goods would also need to be adjusted in respect of gas costs, for the reasons indicated in recital 58 above. As it was found to be impossible to establish the magnitude of the necessary adjustment for all products belonging to the same general category of goods sold domestically, it is equally impossible to establish the profit margins after such adjustment. Therefore, SG&A costs and profit were established pursuant to Article 2(6)(c) of the basic Regulation. (61) … SG&A costs and profit were established on the basis of the weighted average SG&A costs and profit from the same three North American producers. It should be noted that the amount for profit so established did not exceed the profit realised by the Russian producers on sales of products of the same general category on their domestic market.’ 111 As stated in recitals 35 and 36 to the contested regulation and as the Council sets out in its defence, in order to determine the amounts for selling, administrative and general costs and for profit, in the context of the new exporter review, Article 2(6)(c) of the basic regulation was also applied. The Council also justifies the application of that provision by the argument that, in its view, Article 2(6)(a) and (b) could be applied with difficulty, since, first, no other exporters were examined in the course of the new exporter review and, second, manufacturing costs were in all likelihood distorted, owing to abnormally low gas costs. 112 It is therefore apparent that the institutions applied the same methodology as in the initial investigation. 113 It must be pointed out that, in essence, the applicant does not criticise the recourse to Article 2(6)(c) of the basic regulation. 114 The applicant maintains, however, that the review carried out ought only to have led to a partial re-opening of the initial investigation as regards solely the data relating to the new exporter and that the profit margin used in the contested regulation is unreasonable and too high. 115 However, the use of the same method does not mean that the same data collected during a previous investigation or the same factual conclusions or calculations obtained from that data must be used. 116 If the data used for the initial investigation were used, as such, in relation to the new exporter review, that would mean, inter alia, that identical data is taken into account although the investigation periods are different. 117 The first part of the second plea in law must, therefore, be rejected as unfounded. Infringement of Article 2(3) and (6) of the basic regulation 118 The applicant contends that the contested regulation contains no explanation of the reason why the institutions did not use the profit margin applied in the initial regulation and merely states, at recital 40 to the regulation, that ‘no information was available concerning other producers in Russia’. The applicant submits that the institutions were not entitled to make an adjustment for the price of gas by reference to the applicant’s own recorded profitability rate. Such a rate could be valid only together with the applicant’s own reported gas cost and its own reported cost of manufacturing. 119 The applicant also maintains that, if it could be established that it had realised a profit of 42.6%, according to its own statement, the institutions ought to have applied Article 2(6)(b) of the basic regulation. 120 The institutions made a manifest error of assessment in establishing the profit margin on the basis of data from United States producers when their profit during the period taken into account was historically high and unprecedented. That is contrary to the provisions of Article 2(6)(c) of the basic regulation, which refers to a profit ‘normally realised’. 121 In that connection, it is not apparent that the determination of the profit margin established on the basis of the available data, which results from the ordinary course of trade and is established not to have exceeded the profit normally realised by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin, within the meaning of Article 2(6)(c) of the basic regulation, can constitute misapplication of that provision. The applicant’s complaint alleging contradictory reasoning between recitals 35 and 40 to the contested regulation cannot, moreover, be upheld. 122 Since the costs associated with the gas on the Russian market are not the result of market forces, it was justified, as previously seen, to determine the applicant’s profit margin on a reasonable basis, having recourse to other values, while ensuring, nevertheless, that those values do not exceed the values resulting from equivalent trade on the Russian domestic market. 123 The institutions were therefore fully entitled to conclude that to take into account the information from other producers – in this case American producers – would be the most appropriate and the most reasonable method, given the wide availability, reliability and completeness of the public financial information from listed companies and also the significant volume of domestic sales and the considerable level of competition between domestic and foreign companies. 124 The second part of the second plea in law must therefore be rejected as unfounded and, with it, that plea in its entirety. 125 It follows from all of the foregoing that the action must be dismissed. Costs 126 As regards, first of all, the applicant’s argument that Fertilizers Europe’s claim that the applicant should be ordered to pay its costs is inadmissible, it is sufficient to note that costs are a matter ancillary to the main proceedings and that, as a matter of course, only the intervener has an interest in requesting that its costs be borne by another party. 127 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 the applicant has been unsuccessful, it must be ordered, in accordance with the form of order sought by the Council and by Fertilizers Europe, to bear its own costs and to pay those incurred by both of the latter. 128 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the Commission is to bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders Acron OAO to bear its own costs and to pay those incurred by the Council of the European Union and by Fertilizers Europe; 3. Orders the European Commission to bear its own costs. Truchot Kanninen Martins Ribeiro Delivered in open court in Luxembourg on 7 February 2013. [Signatures] * Language of the case: English.