Judgment — ECLI:EU:T:2013:66
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), in order to argue that the agreement penalised by such a decision had affected the data used by the Commission to calculate the adjustment in the present case. In the applicant’s submission, it follows from that decision that the price of the Russian gas at Waidhaus is not the result of market forces. 107 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. 108 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 has not argued that that the Waidhaus price is indeed higher than the price of gas negotiated in the United Kingdom, the United States or Canada. The applicant stated that the price of the gas from Qatar, Trinidad, Australia and Libya was lower than the Waidhaus price, although it did not specify whether the gas imported from those countries amounted to a significant or representative volume for the European Union. 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. 109 As regards, furthermore, the decision not to deduct the export tax collected in Russia, with only transport costs being deducted, the applicant maintains that that decision is inconsistent and mistaken, and relies in that regard 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). 110 The Council replies that, in that case, the Commission and itself deducted only the customs duties payable on domestic sales of gas but made no deduction for export tax. 111 It is apparent from recital 97 to Regulation No 954/2006 that the costs of 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. 112 In any event, 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. 113 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. 114 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. 115 Since the applicant has also 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. 116 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. 117 In recital 42 to the contested regulation, which the applicant has not challenged, the Council explained why it had decided to make an upwards adjustment in order to take into account local distribution costs. In that connection, the Council stated that the Russian exporters had not been able to submit any further information or evidence which showed whether distribution costs were indeed included in the Waidhaus price. It further stated that, since domestic customers were purchasing the gas from local suppliers, it had to be assumed that they would have to pay, at least for sales services, local distribution costs which were not as such included in the unadjusted Waidhaus price. 118 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). 119 In this case, it is apparent from Annexes A2, A6 and A7 to the application that the applicant had been informed of (i) the conclusions regarding SG&A costs, (ii) the non-deduction of export tax and (iii) the upwards adjustment for local distribution costs with regard to the calculation of normal value, 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. An example of this is the clarification at recital 76 to the contested regulation as to why the adjustment was made in respect of local distribution costs, as indicated in paragraph 117 above. 120 The second part of the second plea is therefore unfounded. The third part of the second plea 121 The applicant claims that there has been an infringement of Article 2(10) of the basic regulation and a manifest error of assessment in that, in the contested regulation, the Council deducted from the applicant’s export price to the first independent customer the sales, general and administrative costs and also the commissions of the related companies forming part of the applicant’s single economic entity. The applicant contests, in that regard, recitals 40 to 42 to the contested regulation, in particular in so far as the Council reasoned, in recital 42, that: ‘Due allowance in the form of adjustments was made for differences affecting price and price comparability in accordance with Article 2(10) of the basic Regulation. Accordingly, adjustments were made for differences in transport, handling, loading and ancillary costs, packing, credit and commissions, where applicable and supported by verified evidence. In this respect, since export sales are made via the related traders mentioned above, and as these related traders were found to have functions similar to those of an agent working on a commission basis, an adjustment for each of these traders was made to the export price, pursuant to Article 2(10)(i) of the basic Regulation. In the absence of cooperation from Community importers, this adjustment was made at the level of 1.5%, since this level reflected commissions paid to independent agents involved in the trade of the product concerned in the original investigation.’ 122 In the applicant’s submission, the adjustments listed in Article 2(10) of the basic regulation are neither mandatory nor automatic and the party claiming the adjustment bears the burden of proof. 123 In the first place, it is necessary to outline the relevant factual context in which the institutions applied, in the present case, Article 2(10) of the basic regulation, which provides that the comparison between the normal value and the export price is to be made at the same level of trade and in respect of sales made at as nearly as possible the same time, with due account being taken of other differences which affect price comparability. 124 For the purposes of the application of that provision, the Council explained that the applicant and its manufacturing companies did not sell the product concerned directly to customers in the United States. It explained that the sales were carried out in the following manner: the manufacturing companies – subsidiaries of the applicant – concluded an agency agreement with the applicant, under which the latter received a commission for sales of the product. The applicant, as an agent, ensured that the product was sold by its manufacturing companies to two trading companies, also subsidiaries of the applicant, the first located in the British Virgin Islands, but which ceased to operate in 2005, and the other in Switzerland. Those trading companies sold the product concerned to the first independent customer with a mark-up. 125 Although the applicant states that it contested those findings during the administrative procedure, it is apparent that this was only in order to assert that all the companies related to it, including its manufacturing companies and its two trading companies, were owned, controlled and managed by the same single shareholder, the applicant. The applicant submits that Eurochem Moscow and Eurochem Trading performed the same functions as those of a fully integrated export sales department. 126 It is apparent from recital 42 to the contested regulation that the normal value and the export price were compared on an ex-works basis. 127 In that connection, as regards the normal value, this was constructed on the basis of the manufacturing costs of the product type exported, after the adjustment for the gas cost, plus a reasonable amount for SG&A costs and for profits. Recital 38 to the contested regulation states that the amounts for SG&A costs and profit were established on the basis of the weighted averages from three North American producers, which were found to be amongst the largest companies in the nitrogen fertilisers’ sector. At recital 39 to that regulation, it is stated 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. 128 As regards the export price, recital 41 to the contested regulation states that this was established on the basis of export prices actually paid or payable for the product when sold for export from the exporting country to the European Union. 129 Article 2(10) of the basic regulation provides that adjustments are possible. 130 However, according to the case-law, it is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may only be made to take account of differences in factors which affect the prices and therefore their comparability (Case T-88/98 Kundan and Tata v Council [2002] ECR II-4897, paragraph 94). In other words, the purpose of an adjustment is to re-establish the symmetry between normal value and export price. 131 In that connection, it should be observed that Article 2(10)(i) of the basic regulation provides that an adjustment is to be made for differences in commissions paid in respect of the sales under consideration. The second sentence of that provision states that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis. 132 That second sentence of Article 2(10)(i) of the basic regulation was inserted by Article 1(5) of Regulation No 1972/2002. Recital 6 to that regulation states that the rationale for the insertion of the sentence in question was to clarify, in line with the consistent practice of the institutions, that such adjustments were also to be made if the parties did not act on the basis of a principal-agent relationship, but achieved the same economic result by acting as buyer and seller. 133 Therefore, Article 2(10)(i) of the basic regulation allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis (Case T-299/05 Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II-565, paragraph 281). 134 In the present case, the respective roles played by the applicant, its manufacturing companies and its trading companies must therefore be examined. 135 The applicant has not disputed that commissions were paid, in accordance with the export sales agency agreement. The Council emphasised that that agreement was a fully fledged agency agreement that even included an arbitration clause. 136 The applicant submits that the institutions have not proved the effect of such commissions on the comparability of the export price and normal value. 137 However, it is apparent that the Council contended that the commission payments represented compensation for tasks performed in the context of functions similar to those of an agent working on a commission basis and that the commission payments were not a mere internal redistribution of profits that does not affect price comparability. 138 It has not been disputed that the product concerned was sold by the trading company, which set a price including a profit margin, thereby carrying out the role of trader. It should be added that the applicant has not denied its own role or the respective roles of its manufacturing and trading companies, as set out in paragraph 124 above, save to claim that the applicant and its companies constituted a single economic entity. 139 In addition, although the applicant submitted, in the application, that none of the trading companies at any level had received a mark-up, it is apparent from the evidence collected in the course of the administrative procedure, as noted by the Council – and not subsequently disputed by the applicant – that, during the investigation, Eurochem Trading achieved an overall profit for all the products sold and a profit in respect of EU sales of the product concerned. 140 It is not therefore apparent that there has been an infringement of Article 2(10)(i) of the basic regulation or that there has been a manifest error of assessment in relation to the application of that provision in the present case. 141 The third part of the second plea is therefore unfounded. 142 It follows from all of the foregoing that the second plea must be regarded as unfounded and must therefore be rejected. 143 Accordingly, the action must be dismissed in its entirety. Costs 144 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. 145 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. 146 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 EuroChem Mineral and Chemical Company OAO (EuroChem MCC) 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.