Judgment — ECLI:EU:T:2013:65
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 applicants’ submission, it follows from that decision that the price of the Russian gas at Waidhaus is not the result of market forces. 86 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. 87 Similarly, the applicants referred 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. 88 The Court notes that those judgments do not address the issue of whether the basis on which the institutions determined gas costs was reasonable. 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 (Extrament Industrie v Council, paragraph 87 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 87 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. 89 Lastly, although the applicants dispute that the Waidhaus price is much higher than the price of the gas sold on the Russian domestic market, they have not argued that the Waidhaus price is indeed higher than the price of gas negotiated in the United States or Canada. The applicants stated that the price of the gas from Qatar, Trinidad, Australia and Libya was lower than the Waidhaus price, although they 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. 90 As regards, in the second place, the decision not to deduct the export tax collected in Russia, with only transport costs being deducted, the applicants maintain that that decision is inconsistent and mistaken, and rely 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). 91 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. 92 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 applicants claim. 93 The Council justifies export tax not being deducted by the fact that Gazprom’s prices are not influenced by the amount of the export tax. In support of that statement, the Council communicated, in Annex B.2 to the defence, data on the trend in Russian gas prices which show that that price appears, in large measure, not to depend on the amount of the export tax. The Council also stated, inter alia, that Gazprom always tried to maximise the price of gas which it sold and that the price setting was not influenced by the amount of the export tax but 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. 94 The applicants have 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 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. 95 Since the applicants have 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. 96 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. 97 In recital 42 to the contested regulation, which the applicants have 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. 98 Lastly, the applicants’ 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 must be rejected. 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). 99 In this case, it is apparent from Annex A13 to the application that the applicants 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 and that they were able to submit 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. 100 The second part of the plea is therefore unfounded. 101 It follows from the foregoing that the plea must be rejected and that, consequently, the action must be dismissed in its entirety. Costs 102 As regards, first of all, the applicants’ argument that Fertilizers Europe’s claim that they 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. 103 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 applicants have been unsuccessful, they must be ordered, in accordance with the form of order sought by the Council and by Fertilizers Europe, to bear their own costs and to pay those incurred by both of the latter. 104 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 and Dorogobuzh OAO to bear their 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.