Judgment;Abstract;Judgment (extracts) — ECLI:EU:T:2024:114
Date: 2024-02-21
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. Requests for confidentiality shall not be arbitrarily rejected. 4. This Article shall not preclude the disclosure of general information by the Union authorities, and, in particular, of the reasons on which decisions taken pursuant to this Regulation are based, or disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interests of the parties concerned that their business secrets not be divulged. 5. The Commission and Member States, including the officials of either, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from that supplier. …’ 96 Article 20 of the basic regulation provides as follows: ‘1. The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed … 2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures. …’ 97 Article 6(7) of the basic regulation provides as follows: ‘7. The complainants, importers and exporters … may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and is used in the investigation. …’ 98 By those provisions, the basic regulation is pursuing two objectives: on the one hand, to allow the interested parties effectively to defend their interests and, on the other hand, to preserve the confidentiality of the information collected in the course of the investigation (see, by analogy, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 96; see also, to that effect and by analogy, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142 and the case-law cited). 99 As regards the first objective referred to in paragraph 98 above, it should be recalled that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. Respect for that principle is of crucial importance in anti-dumping investigations (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 139 and the case-law cited). 100 In accordance with that principle, the undertakings concerned should have been placed in a position during the administrative 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 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 140 and the case-law cited). 101 As regards the second objective referred to in paragraph 98 above, it must be recalled that the protection of business secrets is a general principle of EU law. The maintenance of fair competition is an important public interest, the safeguarding of which can justify a refusal to disclose information which reveals business secrets (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 165 and the case-law cited). 102 In order to reconcile the two objectives in question, in performing their duty to provide information, the EU institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information (see, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 141). 103 The need to reconcile those objectives also follows from the fact that, according to the case-law, Article 19 of the basic regulation is intended to protect not only the business secrets but also the defence rights of the other parties to the anti-dumping proceeding (see judgment of 15 October 2020, Zhejiang Jiuli Hi-Tech Metals v Commission, T‑307/18, not published, EU:T:2020:487, paragraph 82 and the case-law cited). 104 In the light of those provisions and principles, it must be held that the Commission, when seeking to obtain, under Article 2(6a)(a) of the basic regulation, data that are ‘readily available’, is entitled to refuse to use for that purpose data which are considered by the party providing them to be confidential and in respect of which it is unable to secure a non-confidential summary as a basis enabling the other interested parties in the investigation to exercise their rights of the defence. 105 That conclusion is not called into question by the Report of the Appellate Body, Thailand – Anti-dumping duties on angles, shapes and sections of iron or non-alloy steel and H-beams from Poland (WT/DS 122/AB/R), adopted by the DSB on 5 April 2001 (‘the angles and H-beams report’), relied on by the applicant. 106 Paragraph 111 of the angles and H-beams report states: ‘… the requirement in Article 3.1 [of the anti-dumping agreement] that an injury determination be based on “positive” evidence and involve an “objective” examination of the required elements of injury does not imply that the determination must be based only on reasoning or facts that were disclosed to, or discernible by, the parties to an anti-dumping investigation. Article 3.1, on the contrary, permits a[ competent] authority making an injury determination to base its determination on all relevant reasoning and facts before it.’ 107 However, first of all, it must be noted that Article 3.1 of the anti-dumping agreement does not contain the condition – which, by contrast, appears in Article 2(6a)(a) of the basic regulation – that the data used by the Commission must be ‘readily available’. 108 Next, it should be borne in mind that, in paragraph 107 of the angles and H-beams report, the Appellate Body makes clear that ‘an anti-dumping investigation … involves the collection and assessment of both confidential and non-confidential information’ and that ‘an injury determination … must be based on the totality of that evidence’. It concludes that there is ‘nothing in Article 3.1 [of the anti-dumping agreement] which limits a[ competent] authority to base an injury determination only upon non-confidential information’. Therefore, while, in accordance with the guidance provided by that report, the competent authority may also use confidential information in addition to non-confidential information, it cannot rely exclusively on confidential information. That would have been the case if the Commission had used the data which Solutia Europe had provided to it regarding Solutia Tlaxcala. 109 Lastly, it must be pointed out that, in paragraph 109 of the angles and H-beams report, although the Appellate Body recalls that Article 6 of the anti-dumping agreement ‘establishes a framework of procedural and due process obligations which, amongst other matters, requires [competent] authorities to disclose certain evidence, during the investigation, to the interested parties’ and finds that ‘there is no justification for reading these obligations … into the substantive provisions of Article 3.1.’ of that agreement, it makes clear that, in so doing, it does ‘not … imply that the injury determination … in this case necessarily met the requirements of Article 6’. Indeed, according to the Appellate Body, as the Panel, whose report was challenged before it, ‘found that [the Republic of] Poland’s claim under Article 6 did not meet the requirements of Article 6.2 of the [Understanding on rules and procedures governing the settlement of disputes, set out in Annex 2 to the Agreement establishing the WTO], the issue was not considered by the Panel’. 110 Accordingly, the Appellate Body wished to avoid the situation whereby a party, which has failed to raise with the requisite clarity in its request for the establishment of a panel the question of compliance by the competent authority with the procedural obligations laid down in Article 6 of the anti-dumping agreement, relating to confidentiality and the rights of the defence, could cure that failure by maintaining that the assessment of infringement of the substantive provisions which it has properly brought before that panel includes an examination of compliance with those procedural obligations. 111 It follows that the angles and H-beams report cannot be construed as enshrining a general principle that a competent authority may in all circumstances use confidential information. 112 In the present case, it is common ground that Solutia Europe objected to the disclosure of the data concerning Solutia Tlaxcala and that it did not provide the Commission with a non-confidential summary of those data. Thus, under Article 19(3) of the basic regulation, the Commission was entitled to disregard those data, unless they could be obtained from other sources. 113 In that regard, the applicant states that the data relating to Solutia Tlaxcala are available in the Dun&Bradstreet subscription database. It claims that the Commission’s decision to subscribe only to the Orbis database is irrelevant. 114 It should be pointed out that, in its comments on final disclosure, the applicant drew the Commission’s attention to the fact that the Dun&Bradstreet database contained readily available data concerning Solutia Tlaxcala and inserted a hyperlink in the relevant passage of those comments, while stating that access to those data was subject to payment of a fee. 115 It is apparent from the replies of the main parties to written questions put by the Court that the hyperlink referred to by the applicant did not give access to the data concerning Solutia Tlaxcala contained in the Dun&Bradstreet database. 116 In addition, in its comments on final disclosure, the applicant merely stated that there was ‘prima facie’ evidence that the data concerning Solutia Tlaxcala in the Dun&Bradstreet database could be obtained. 117 It follows that the applicant itself had not accessed those data, with the result that it was unaware of the level of detail of the data and the period they covered. 118 The Commission was therefore right, in recital 230 of the contested regulation, to refuse to use those data. 119 As regards the applicant’s arguments alleging breach of the duty of care, where it relies on the principles deriving from the case-law on Article 2(7)(a) of the basic regulation, in the version prior to Regulation 2017/2321, which it claims are applicable by analogy, it is appropriate to recall the wording of that provision, which reads as follows: ‘In the case of imports from non-market-economy countries …, the normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted if necessary to include a reasonable profit margin. An appropriate market-economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection …’ 120 According to the case-law on Article 2(7)(a) of the basic regulation, in the version prior to Regulation 2017/2321, the choice of ‘analogue country’ under that provision falls within the broad discretion enjoyed by the EU institutions in the sphere of the common commercial policy, by reason of the complexity of the economic and political situations which they have to examine (see, by analogy, judgment of 29 July 2019, Shanxi Taigang Stainless Steel v Commission, C‑436/18 P, EU:C:2019:643, paragraph 30 and the case-law cited). The exercise of the EU institutions’ discretion in choosing that country is subject to review by the Court. It is for the Courts of the European Union to verify whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers. In particular, it is necessary to verify that those institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the file in the case was considered with all the care required for it to be held that the normal value of the product concerned was determined in an appropriate and not unreasonable manner (see, to that effect and by analogy, judgments of 29 May 1997, Rotexchemie, C‑26/96, EU:C:1997:261, paragraphs 10 to 12; of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 51; and of 23 April 2018, Shanxi Taigang Stainless Steel v Commission, T‑675/15, not published, EU:T:2018:209, paragraph 31 and the case-law cited). 121 Notwithstanding the differences between Article 2(6a)(a) of the basic regulation and the former Article 2(7)(a) thereof, those principles are applicable by analogy in the present case, as the Commission contends. 122 In this case, first, the applicant observes that the Commission accepted the data relating to Ilkalem despite the fact that, during the investigation period, that company was loss-making because of extraordinary financial expenses and that, therefore, it was necessary to make adjustments on the basis of figures relating to the previous three financial years. The Commission’s acceptance of those data is at odds with the fact that it rejected the data relating to Wyn on the ground that they covered a period which did not coincide with the investigation period. The Commission was therefore wrong to choose Ilkalem’s data over those of Wyn and Solutia Tlaxcala, which were not only ‘readily available’, but also full and complete. 123 It should be noted that the applicant does not dispute the veracity of the considerations set out in the contested regulation, pursuant to which the Commission determined that it could not rely on the data relating to Wyn because they did not cover the investigation period and showed that Wyn did not make a profit in 2017 (see paragraph 82 above). The applicant simply maintains that that determination is at variance with the fact that the Commission accepted the data concerning Ilkalem. However, it must be stated that those data, unlike the data relating to Wyn, were available for the whole of 2018, with the result that they covered at least part of the investigation period. In addition, those data also showed that Ilkalem had made profits during the previous three years and that the absence of profit in 2018 was due to particularly high financial expenses, which the Commission classified as extraordinary. The applicant does not deny that that classification was justified, nor has it demonstrated that the adjustments made by the Commission to Ilkalem’s data in respect of 2018 in order to offset the effect of those extraordinary expenses were inappropriate. 124 In the light of the broad discretion enjoyed by the Commission here as regards the choice of appropriate representative country (see paragraphs 120 and 121 above), the applicant must, if its plea is to be upheld, adduce sufficient evidence to render implausible the assessments of the facts in the contested regulation (see, to that effect and by analogy, judgment of 3 December 2019, Yieh United Steel v Commission, T‑607/15, EU:T:2019:831, paragraph 110 and the case-law cited). 125 The applicant’s present argument must therefore be rejected. 126 Secondly, the applicant submits that the Commission should, at the very least, have distinguished between the data concerning surrogate values for factors of production (‘the surrogate values’) and the data for SG&A costs and for profits. Ilkalem’s data are useful only for SG&A costs and for profits, while the surrogate values could be obtained from public sources, including the Global Trade Atlas database, which contains those values for Mexican raw materials. The applicant states that the Commission has already used data from different sources in an anti-dumping investigation, as have the authorities of the United States of America. 127 It should be noted that the applicant merely asserts that the Global Trade Atlas database contains surrogate values for Mexico, but does not explain how those values would be more relevant than the values for Türkiye. A fortiori, it does not demonstrate that the use of Turkish surrogate values was manifestly wrong. 128 In addition, the applicant does not explain why it would be manifestly wrong to use the data relating to one and the same third country both for the surrogate values and for SG&A costs and for profits. 129 The applicant relies on the Commission’s practice, which it claims shows that the Commission has already used data from different sources, and on the practice of the authorities of the United States of America, confirmed by the competent courts. 130 However, according to the case-law, the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of legal rules and, in particular, the provisions of the basic regulation, not on the basis of the EU institutions’ alleged previous practice in taking decisions (see, to that effect and by analogy, judgments of 10 February 2021, RFA International v Commission, C‑56/19 P, EU:C:2021:102, paragraph 79; of 4 October 2006, Moser Baer India v Council, T‑300/03, EU:T:2006:289, paragraph 45; and of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107). 131 Moreover, as regards the practice of the authorities of the United States of America, it should be pointed out that that practice is concerned only with the application of the law of the United States of America, the provisions of which are not necessarily the same as those of the basic regulation, as interpreted by the Court of Justice and the General Court. Therefore, even if that practice concerned a factual and legal situation comparable to the one at issue here, which the applicant has not demonstrated, it cannot bind the General Court. 132 Consequently, the applicant’s present argument must be rejected. 133 Lastly, as regards the applicant’s argument that Mexico has a higher level of social and environmental protection than Türkiye, it should be noted that, according to the wording of the first indent of Article 2(6a)(a) of the basic regulation, the question of the level of those protections arises only ‘where there is more than one [appropriate representative] country’. 134 Since, in the present case, the Commission was justified in finding that there were relevant data on SG&A costs and on profits only for Türkiye, and not for Mexico, it was entitled to conclude, in recitals 221 and 226 of the contested regulation, that Türkiye was the only appropriate representative country and that, consequently, the question of the level of social and environmental protection did not arise. 135 In the light of the foregoing, the second plea in law must be rejected as unfounded. Fifth plea in law, alleging infringement of Article 18 of the basic regulation 136 The applicant submits that the Commission was wrong to calculate the normal value of the products manufactured by it on the basis of the facts available within the meaning of Article 18 as regards self-produced factors of production, such as steam and electricity, despite the fact that the applicant had cooperated to the best of its ability by replying to the Commission’s questionnaire. 137 According to the applicant, the Commission, which criticises it for failing to allocate to the product under investigation a share of the costs relating to the inputs needed for the self-produced factors of production it uses to produce PVA, did not take account of the fact that such allocation is impossible due to the characteristics of the applicant’s PVA production process. 138 Moreover, the applicant claims that since it cooperated with the Commission to the best of its ability, the Commission was required, under Article 18(3) of the basic regulation, to take into account the information which the applicant had provided to it and it was not entitled to use the facts available within the meaning of that article. 139 The Commission, supported by Sekisui, disputes the applicant’s arguments. 140 It should be recalled that the terms of the relevant provisions of Article 18 of the basic regulation, concerning ‘non-cooperation’, are as follows: ‘1. In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. … 3. Where the information submitted by an interested party is not ideal in all respects, it shall nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability. …’ 141 In order to understand the rationale for Article 18 of the basic regulation, it must be recalled that it is for the Commission, as the investigating authority, to establish that the product concerned has been dumped, that there has been injury and that there is a causal link between the dumped imports and the proven injury. In so far as there is no provision in the basic regulation which confers on the Commission any power to compel the interested parties to participate in the investigation or to provide information, the Commission is reliant on the voluntary cooperation of those parties in supplying the necessary information. In that context, it follows from recital 27 of the basic regulation that the EU legislature considered it ‘necessary to provide that, where parties do not cooperate satisfactorily, other information may be used to establish findings and that such information may be less favourable to the parties than if they had cooperated’. Thus, the objective of Article 18 of the basic regulation is to enable the Commission to continue with the investigation even though the interested parties refuse to cooperate or do not cooperate satisfactorily. Accordingly, given that they are required to cooperate to the best of their ability, the interested parties must provide all the information that they have which the institutions consider necessary for the purpose of reaching their findings (see, by analogy, judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraphs 54 to 56). 142 The basic regulation does not define what is ‘necessary’ information within the meaning of Article 18(1) thereof. 143 According to the case-law, it follows from the wording, context and objective of Article 18(1) of the basic regulation that the term ‘necessary information’ refers to information held by the interested parties which the EU institutions ask them to provide in order to enable them to reach the appropriate findings in an anti-dumping investigation (see, by analogy, judgment of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 57). 144 In addition, it should be pointed out that Article 18 of the basic regulation constitutes the implementation, in EU law, of the content of Article 6.8 of, and Annex II to, the anti-dumping agreement (‘Annex II’), and must be interpreted in the light thereof as far as possible (see, by analogy, judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 40 and the case-law cited). 145 Article 6.8 of the anti-dumping agreement provides as follows: ‘In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph.’ 146 Article 5 of Annex II corresponds to Article 18(3) of the basic regulation, since it provides as follows: ‘Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability.’ 147 It should be noted that Annex II is ‘incorporated by reference into Article 6.8’ of the anti-dumping agreement (Report of the Appellate Body, United States – Anti-dumping measures on certain hot-rolled steel products from Japan (WT/DS 184/AB/R), adopted by the DSB on 23 August 2001 (paragraph 75)) and that the provisions of that annex are mandatory, despite the fact that they are often phrased in the conditional tense (Panel Report, United States – Anti-dumping and countervailing measures on steel plate from India (WT/DS 206/R), adopted by the DSB on 29 July 2002 (paragraph 7.56)). 148 According to the Panel Report, Korea – Anti-dumping duties on imports of certain paper from Indonesia (WT/DS 312/R), adopted by the DSB on 28 October 2005 (paragraph 7.43), the decision as to whether or not a given piece of information constitutes ‘necessary information’ within the meaning of Article 6.8 of the anti-dumping agreement has to be made in the light of the specific circumstances of each investigation, not in the abstract. Moreover, according to the Panel Report, European Communities – Anti-dumping measure on farmed salmon from Norway (WT/DS 337/R), adopted by the DSB on 15 January 2008 (paragraph 7.343), specific information held by an interested party which is requested by the authority conducting the anti-dumping investigation (‘the competent authority’) for the purpose of making ‘determinations’ must be regarded as necessary within the meaning of that provision. 149 Moreover, it has been held that the information relating to production volumes and manufacturing costs of the product under investigation is clearly necessary information within the meaning of Article 18(1) of the basic regulation (see, by analogy, judgment of 22 September 2021, NLMK v Commission, T‑752/16, not published, EU:T:2021:611, paragraph 53). 150 In the present case, it follows from recitals 274, 275 and 317 to 322 of the contested regulation and from the details provided by the Commission during the proceedings, in response to a question from the Court, that the Commission, in order to construct the normal value, had recourse to the facts available within the meaning of Article 18 in order to establish the consumption volumes of inputs, such as coal and water, employed by the applicant to produce the self-produced factors of production used in its PVA production, such as electricity and steam. The applicant had not provided the Commission with the information which the latter considered necessary for that purpose. 151 It is not disputed that self-produced factors of production play a significant role in the production of PVA. Those factors of production in turn require inputs, which thus represent costs incurred by the applicant in producing PVA. Since the normal value in the present case was constructed using a method based on production costs, the Commission needed to be acquainted with the consumption volumes of all the inputs used to produce PVA, including therefore the inputs for producing self-produced factors of production. 152 The applicant claims that it was impossible for it to supply the data requested by the Commission due to the specific features of its production process, which the questionnaire prepared by the Commission did not take into account. It states that self-produced factors of production are not used solely to produce PVA. The applicant also adverts to the risk of double counting which, as it explained during the investigation, arises from the fact that steam generated by coal boilers is used, first, to produce energy and, subsequently, to produce PVA, with electricity which is not therefore generated directly by coal. Therefore, that self-produced electricity and steam are not comparable to traditional inputs, such as coal. In addition, the applicant states that its process is an entirely chemical reaction during which different ingredients work together and sometimes consume each other, leaving residues which may be reused or which are transformed into other substances. 153 It should be recalled that, according to recital 319 of the contested regulation, the applicant had ‘already reported the inputs for producing the self-produced factors of production’. The Commission concludes that ‘these inputs could equally be allocated to the product under investigation’. 154 It is apparent from recital 319 of the contested regulation that the applicant had indicated to the Commission which inputs were needed to produce the self-produced factors of production. However, the applicant considers that it is not in a position to state to what extent those self-produced factors of production, and therefore the inputs needed to produce them, can be allocated to the production of PVA. 155 It follows that what the applicant is actually objecting to is the validity of the method used by the Commission to construct the normal value, in so far as that method resulted in overestimation of the consumption of the inputs concerned, which were allocated in excess to the production of PVA, when the self-produced factors of production were not used exclusively to produce those inputs. That objection is not such as to demonstrate that it was impossible to supply the information requested by the Commission. 156 It should also be noted that, in order to prevent the Commission from having recourse to the facts available within the meaning of Article 18, the applicant could have forwarded that information to it, without prejudice to the possibility of mounting a substantive challenge to the Commission’s use of the information, including before the Court. 157 Accordingly, the applicant’s arguments alleging infringement of Article 18(1) of the basic regulation must be rejected. 158 As regards its arguments claiming infringement of Article 18(3) of the basic regulation, it should be recalled that, according to the case-law, paragraphs 1 and 3 of Article 18 of that regulation cover different situations. Thus, whereas Article 18(1) of the basic regulation sets out in general terms cases in which the information needed by the institutions for the purposes of the investigation has not been supplied, Article 18(3) of that regulation contemplates the cases in which the information necessary for the purposes of the investigation has been supplied but is irrelevant, with the result that the facts available do not necessarily have to be used (see, to that effect and by analogy, judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 98 and the case-law cited). 159 In the present case, the Commission used the facts available within the meaning of Article 18 only as a substitute for the information which the applicant had not supplied, owing to the alleged impossibility of doing so. 160 Furthermore, it should be made clear that the degree of effort displayed by an interested party in submitting certain information does not necessarily reflect the substantive quality of the information supplied, and is not, in any case, the only determinant thereof. Thus, where the requested information is not ultimately obtained, the Commission is entitled to resort to the facts available within the meaning of Article 18 in respect of that information (see, by analogy, judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 104). 161 Since the applicant did not supply the information requested by the Commission regarding the inputs for self-produced factors of production, Article 18(3) of the basic regulation was not applicable and the Commission could only use the facts available within the meaning of Article 18 as a substitute for that information. 162 In any event, according to the Appellate Body, paragraph 5 of Annex II requires a very significant degree of effort from interested parties (Report of the Appellate Body, United States – Anti-dumping measures on certain hot-rolled steel products from Japan (WT/DS 184/AB/R), adopted by the DSB on 23 August 2001 (paragraph 102)). 163 The applicant cannot be regarded as having made such an effort, since it refused to carry out the accounting exercise required by the Commission in order to allocate a share of the production costs for self-produced factors of production to PVA. 164 Accordingly, the applicant’s arguments alleging infringement of Article 18(3) of the basic regulation must also be rejected. 165 In the reply, the applicant submits that the Commission did not provide it in good time with the ‘verification report’ which that institution is required to forward to an interested party before sending the letter informing that party of its intention to use the facts available within the meaning of Article 18. That procedural irregularity constitutes a breach of the applicant’s rights of defence. 166 It must be recalled that, according to the case-law, although an applicant cannot be required to show that the Commission’s decision would have been different in the absence of the procedural irregularity in question, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself had there been no irregularity, the fact remains that the existence of an irregularity relating to the rights of the defence can result in the annulment of the measure in question only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the rights of the defence (see judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission, C‑718/20 P, EU:C:2022:362, paragraph 49 and the case-law cited). 167 The applicant has not put forward any evidence to show that it could not be ruled out that the outcome of the procedure might have been different if it had received the ‘verification report’ earlier. 168 Accordingly, the applicant’s present argument must be rejected as unfounded, without it being necessary to rule on its admissibility, which is disputed by the Commission on the ground that it was not raised in the application. 169 In the light of the foregoing, the fifth plea in law must be rejected as unfounded. 170 In addition, having regard to the considerations set out in paragraph 69 above, the rejection of the second and fifth pleas in law as unfounded means that the third and fourth pleas in law may be rejected as ineffective. Sixth plea in law, alleging infringement of Article 3(2) and (3) of the basic regulation when establishing price undercutting, and infringement of Article 3(6) of that regulation 171 The sixth plea is in three parts, all relating to infringement of Article 3(2) and (3) of the basic regulation. More specifically, those parts concern, first, failure to conduct a segmented price undercutting analysis; secondly, failure to make adjustments to account for quality differences between imported PVA and PVA produced in the European Union; and, thirdly, failure to establish price undercutting for the relevant product as a whole. The applicant also relies on the consequent infringement of Article 3(6) of that regulation. 172 Since, in addition to challenging the merits of that plea, the Commission contends that the plea is ineffective, that issue must be examined first of all. Whether the sixth plea in law is effective 173 The definition of ineffectiveness of a plea is set out in paragraph 62 above. 174 The Commission contends that, in the contested regulation, in addition to examining price undercutting by imports, it found that there was price suppression in respect of PVA sold by the Union industry, as is apparent from recitals 460 to 462, 473 and 490 of that regulation. The applicant had failed to address how its suppression findings would be insufficient to support its conclusion that the dumped imports were causing injury to the Union industry. Thus, the sixth plea, by which the applicant challenges the examination of price undercutting by imports, is, it argues, ineffective. 175 The applicant responds that simple statements, not supported by evidence, concerning price suppression cannot remedy the infringements of Article 3(2) and (3) of the basic regulation invoked by the present plea. 176 It should be recalled that the terms of the relevant provisions of Article 3 of the basic regulation are as follows: ‘1. Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article. 2. A determination of injury shall be based on positive evidence and shall involve an objective examination of: (a) the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and (b) the consequent impact of those imports on the Union industry. 3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports 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. No one or more of those factors can necessarily give decisive guidance. … 5. The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry … 6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.’ 177 The provisions of Article 3(2), (3) (5) and (6) of the basic regulation are highly similar or identical to those of Article 3.1, Article 3.2 and Article 3.5 of the anti-dumping agreement. Therefore, the principles referred to in paragraphs 20 to 22 apply. 178 According to the Report of the Appellate Body, China – Countervailing and anti-dumping duties on grain oriented flat-rolled electrical steel from the United States (WT/DS 414/AB/R), adopted by the DSB on 16 November 2012 (paragraph 137), the elements relevant to the consideration of significant price undercutting may differ from those relevant to the consideration of significant price depression and suppression. Thus, even if prices of subject imports do not significantly undercut those of like domestic products, subject imports could still have a price-depressing or price-suppressing effect on domestic prices. 179 Similarly, it is apparent from the Panel Report, Korea – Anti-dumping duties on pneumatic valves from Japan (WT/DS 504/R), adopted by the DSB on 30 September 2019 (paragraph 7.299), that, while the existence of price undercutting by imports is frequently relied on as an element suggesting that the effect of dumped imports is depression or suppression of prices in the importing country industry, the competent authority may properly consider that the effect of dumped imports is price depression or price suppression notwithstanding the absence of undercutting. 180 In the present case, the parties are agreed that, in principle, suppression of Union industry prices can occur even if there is no price undercutting by imports. 181 However, whereas, according to the Commission, the findings in the contested regulation concerning the existence of Union industry price suppression are independent of those concerning price undercutting by imports, the applicant argues that that suppression is a consequence of that undercutting. 182 It should be recalled that recital 490 of the contested regulation reads as follows: ‘The analysis of the injury indicators in recitals (398) to (478) shows that the economic situation of the Union industry worsened during the period considered and this coincided with a significant increase of dumped imports from the country concerned, which were found to undercut the Union industry prices during the investigation period and causing significant price suppression, as the Union industry was not able to increase its prices in line with the increase of cost of production.’ 183 On the basis of the sole conjunction ‘and’ which appears, in some language versions of the contested regulation, between ‘undercut the Union industry prices during the investigation period’ and ‘causing significant price suppression’, recital 490 of that regulation might be read as meaning that the significant increase in Chinese imports resulted, on the one hand, in price undercutting and, on the other, in a price suppression that is independent of the price undercutting. 184 It is appropriate nevertheless to determine whether the contested regulation contains an analysis of the link between that price suppression and the increase in imports that may be based on elements other than those relating to price undercutting. 185 In that respect, the Commission invokes recitals 460 to 462 and 473 of the contested regulation. 186 It is apparent from recitals 460 to 462 and 473 of the contested regulation that the Commission studied the evolution of Union industry sales prices and found that those prices had increased by 14% during the period considered, whereas the unit cost of production had increased by 24%, because of the increase in the price of the principal raw material used. It noted that the price pressure operated by the Chinese imports had prevented the Union industry from raising its prices further and offsetting that increase. 187 It follows that recitals 460 to 462 and 473 of the contested regulation cannot be interpreted as meaning that the suppression of Union industry prices arises from factors other than the undercutting of prices by imports. The reason why, notwithstanding the significant increase in the unit cost of production, the Union industry did not increase its prices commensurately is the pressure exerted by the dumped imports. That pressure flows from the fact that the Chinese exporting producers’ prices are lower than those of the Union industry, which reflects the existence of price undercutting by imports. 188 Furthermore, the Commission is wrong to rely on paragraphs 95 to 99 of the judgment of 14 September 2022, Methanol Holdings (Trinidad) v Commission (T‑744/19, under appeal, EU:T:2022:558), and paragraphs 257 to 261 of the judgment of 14 September 2022, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission (T‑865/19, not published, under appeal, EU:T:2022:559), in support of the contention that the applicant’s arguments concerning its price undercutting analysis are ineffective. As regards the first of those judgments, the issue dealt with in the paragraphs on which the Commission relies concerned the admissibility of a complaint raised in the reply, whereas in the present case the sixth plea was raised in the application. Moreover, in both judgments, in the paragraphs immediately following those on which the Commission relies, the Court pointed out that there was a link between, on the one hand, the price undercutting and, on the other, the price depression and suppression. Thus, the Court did not attribute any independent value to the price depression or suppression in its finding of injury to the Union industry. 189 In the light of the foregoing, it must be concluded that, contrary to the Commission’s contention, the sixth plea in law is effective, and the question of its merits must therefore be examined. The merits of the sixth plea in law – First part 190 The applicant submits that, contrary to the Commission’s finding in the contested regulation, the PVA market is divided into two segments. The first segment covers high-quality PVA grades, characterised by narrow viscosity and hydrolysis ranges, a low methanol content, a low ash content and a smaller particle size. Those PVA grades are sold at higher prices. The second segment concerns lower-quality grades, characterised by wide viscosity and hydrolysis ranges, a high methanol content, a high ash content and a larger particle size. Those PVA grades are sold at lower prices. 191 The applicant submits that while, in theory, certain industries using lower-quality PVA grades might be able to switch to high-grade PVA, such a switch would not be economically logical. Meanwhile, industries using higher-quality grades of PVA cannot replace them with lower-quality grades. 192 Due to the significant differences in prices and quality between the PVA grades pertaining to the abovementioned first and second market segments, those grades are not directly interchangeable on the demand side. 193 According to the applicant, since the PVA market is divided into the two segments referred to above, the Commission should have taken their existence into consideration in its price undercutting analysis, particularly given that many Chinese producers were primarily producing PVA pertaining to the low market segment, whereas PVA produced in the European Union were usually in the high market segment. 194 In support of its arguments, the applicant relies, inter alia, on the Report of the Appellate Body, China – Measures imposing anti-dumping duties on high-performance stainless-steel seamless tubes (‘HP-SSST’) from Japan (WT/DS 454/AB/R), adopted by the DSB on 28 October 2015 (paragraph 5.181) (‘the HP-SSST report’). 195 Following delivery of the judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38), the applicant, in response to a written question from the General Court, explained its arguments in the light of the guidance stemming from that judgment, by which the Court of Justice set aside the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), which the applicant had invoked in its pleadings. In its view, the present case entails the three exceptional circumstances, as set out in that judgment of the Court of Justice, in which the Commission cannot simply examine price undercutting on the basis of product control numbers (‘PCN’) but is required to carry out an analysis by market segment. First, according to the applicant, the PVA market is divided into two distinct segments; secondly, PVA prices are significantly different depending on the segment; and, thirdly, Union industry sales of PVA products are concentrated in the high-quality PVA segment, whereas imports from China are concentrated in the lower-quality segment. 196 The Commission, supported by Kuraray and by Sekisui, disputes the applicant’s arguments. 197 The relevant provisions of Article 3 of the basic regulation were recalled in paragraph 176 above. 198 As a preliminary matter, it must be borne in mind that, according to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine. That broad discretion covers, inter alia, the determination of injury caused to the Union industry in an anti-dumping proceeding. The judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 35 and 36 and the case-law cited). 199 In addition, the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 59 and the case-law cited). 200 As regards, more specifically, the calculation of the price undercutting of imports, it follows from the case-law that that calculation 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 (see, by analogy, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176). 201 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 (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 73; see also, by analogy, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 175). 202 However, it is apparent from the very wording of Article 3(3) of the basic regulation that the method used to determine possible price undercutting must, in principle, be applied at the level of the ‘like product’, within the meaning of Article 1(4) of that regulation, even though that product may consist of different product types falling within several market segments (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 74 and the case-law cited). 203 Accordingly, the basic regulation does not, in principle, impose any obligation on the Commission to carry out an analysis of the existence of price undercutting at a level other than that of the like product (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 75). 204 That interpretation is confirmed by paragraph 5.180 of the HP-SSST report, relied on by the applicant, according to which the competent authority is not required, under Article 3.2 of the anti-dumping agreement, to establish price undercutting for each of the product types under investigation or for the entire range of products constituting the like domestic product (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 76). 205 However, as confirmed in paragraph 5.180 of the HP-SSST report, since, under Article 3(2) of the basic regulation, the Commission is required to carry out an ‘objective examination’ of the effect of the dumped imports on prices in the Union industry for like products, it is required to take account in its analysis of price undercutting of all the relevant positive evidence, including, where applicable, evidence relating to the various market segments of the product under consideration (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 77). 206 It is also apparent from the case-law that examination of price undercutting on the basis of a method consisting in a PCN-by-PCN comparison (‘the PCN method’) does enable, to a certain extent, account to be taken of the possible segmentation of the market for the product under consideration (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 106, 113 and 114). 207 The fact remains that, in order to ensure that the analysis of price undercutting is objective, the Commission may, in certain circumstances, be required to carry out such an analysis at the level of the market segments of the product in question, even though the broad discretion enjoyed by that institution, in particular in determining the existence of injury (see paragraph 198 above), extends, at the very least, to decisions on the choice of method of analysis, to the data and evidence to be gathered, to the method of calculation to be used in order to determine the undercutting margin and to the interpretation and evaluation of the data gathered (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 78). 208 Accordingly, the Commission may, in certain exceptional circumstances, be required to carry out an additional analysis of price undercutting consisting of a comparison of the prices in each segment in addition to the application of the PCN method (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 111). 209 Those exceptional circumstances relate to the existence both of a clear segmentation of the market for the product under consideration involving significant variations between market segments (‘the first condition’) and a situation characterised by a high concentration of domestic sales and dumped imports in separate segments (‘the second condition’) (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 79 to 81, 110 and 111). 210 The arguments put forward by the applicant in support of the present part of the sixth plea must be examined in the light of those considerations. 211 In the contested regulation, the Commission stated as follows: ‘(60) The information collected during the investigation also showed that some of these grades (sold both by the Union industry and exporting producers) have a broad range of application and, generally, have a lower price. Other more specialised grades designed for applications with narrow specifications … are on average more expensive. These grades are also sold by Union and exporting producers. (61) However, despite a large number of grades, the Commission found that there is no defined segments in the PVA market. Different users can source a number of PVA grades, depending on their required technical specifications. For some users the ash content is the most important element, for others the viscosity, and some are able to use mostly any of the specification. Each user industry can use a different set of PVA grades interchangeably. Even though certain users … are more limited in terms of the number of grades they can use, their grade range still overlaps with other type of users, which are able to source a wider range of grades. (62) For the reasons above, the Commission concluded that all grades compete with each other, at least to a certain extent, and therefore a segment analysis was not warranted nor appropriate in this case … (64) The analysis carried out by the Commission confirmed that the different grades, as explained in recital (61), are interchangeable between each other, at least to a certain extent. Even if it is true that certain users can source only a limited set of grades for their application, these grades do not pertain exclusively to one user’s downstream industry but overlap with the grades sourced by other downstream applications. Moreover, the investigation revealed that the Chinese exporting producers supply grades for all the four main applications of PVA and compete in full with the grades sold by the Union industry. … (78) [The] various grades of PVA share the basic characteristics and their uses are to a large extent identical and interchangeable. The sole ash or methanol content levels do not define, alone, the applications or the price of the product concerned as it is the combination with the other relevant characteristics, such as viscosity and hydrolysis, which defines the grade characteristics, its possible end use and the selling price. (79) The evidence collected in the investigation revealed that, while the average price difference between the PVA grades with “low ash content” versus those with “standard ash content” is about 10%. However, PVA prices can vary up to 40% between PVA grades with the same ash content. In addition, certain allegedly cheaper grades with a “standard” ash content can be up to 27% more expensive than those with “low ash content” grades. Therefore it cannot be concluded, as the interested parties claimed, that the Union market was divided into high-quality PVA (produced by the Union industry) and low-quality PVA (imported from [China]) based on the ash and methanol content, neither that this alleged division is reflected in the prices and the production cost. On the contrary, … several grades with alleged “standard” specifications are also in competition with alleged “high-end” grades of the like product.’ 212 It follows that the Commission ruled out the existence of any clear segmentation of the PVA market and a high concentration of Union industry sales and dumped imports in two distinct segments. 213 In so far as the Commission was required to carry out an objective examination of price undercutting (see paragraphs 205 and 207 above), it is necessary to ascertain whether its findings are sufficiently supported by the documents in the case file of the procedure which led to the adoption of the contested regulation. 214 In that regard, it should be noted that a regulation imposing anti-dumping duties must contain the essential part of the Commission’s reasoning, but need not include specific reasons for each of the numerous factual arguments relied on by the interested parties. The Court may therefore ask the Commission for additional explanations and take them into account when carrying out its review, provided that they are based on material in the Commission’s file (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 92, 93, 95 and 96 and the case-law cited). 215 In the present case, the Court asked the Commission to specify the elements of the case file which enabled it to rule out both the existence of a segmented market and the concentration of imports and Union industry sales in separate segments. 216 On that point, the Commission referred to the replies of PVA users to its request for information about their PVA purchases by PCN and to the information supplied to it by Kuraray. 217 As regards the lack of clear segmentation, the Commission produced an example of its request for information, although it did not produce the replies received, which were described as confidential. It also lodged an extract from Kuraray’s website. At the hearing, the Commission stated that an earlier version of that extract was included in the case file of the procedure which led to the adoption of the contested regulation, and this was not contradicted by the applicant. 218 It must be stated that the extract of Kuraray’s website shows that there are several grades of PVA whose main uses are both in industries that would use high-quality PVA and in industries that would use lower-quality PVA. As the Commission observes, several PVA grades used in the paper and adhesives industries are also used in the emulsion polymerisation and polyvinyl butyral production industries. Consequently, that extract serves to confirm that the PVA market is not clearly segmented. 219 Furthermore, it should be noted that, in so far as the first condition relates to the existence of clear segmentation of the product at issue, in order to rule out the possibility of that condition being satisfied, contrary to the applicant’s contention, it is not necessary that all users should be able to purchase all PVA grades and that those grades should therefore be completely interchangeable. 220 Thus, it must be held that the first condition is not satisfied in the present case. 221 Accordingly, it is not necessary to rule on the second condition, as it may already be concluded that the Commission was not required to carry out an additional analysis of price undercutting over and above that based on the PCN method. 222 In any event, as regards the second condition, the following must be noted. 223 The case file in the present case includes three tables that were in the case file of the procedure which led to the adoption of the contested regulation, each table relating to one of the three main Chinese exporting producers that cooperated, including the applicant. Displayed in those tables are the quantities of PVA, by PCN, imported into the European Union. However, on grounds of confidentiality, the tables do not show, by PCN, the importance of sales made by Kuraray. A study of the figures in those tables serves to establish that the imports, taken as a whole, cover eight different PCN, in their revised versions, which are not disputed by the applicant, and that the quantities in respect of two of those PCN are equivalent, in each case, to approximately 29% of total imports from those exporting producers, whereas the quantities in respect of six other PCN are, in percentage terms, between 3.24 and 9.54%. 224 Consequently, the imports cannot be considered to represent a high concentration and, therefore, even without the data relating to Kuraray’s sales, it must be held that the second condition is not satisfied. 225 Since the conditions laid down by the case-law recalled in paragraph 209 are not satisfied, it must be concluded that the Commission was not required to carry out an additional analysis of price undercutting over and above that based on the PCN method. 226 In the light of the foregoing considerations, the first part of the sixth plea in law must be rejected. – Second part 227 The applicant submits that the Commission did not properly establish price undercutting because, while it made an adjustment of 10% to account for the lower quality, in terms of ash content, of the PVA imported from China compared to the PVA produced in the European Union, it refused to make other adjustments to reflect the other quality differences between those PVA. 228 The Commission, supported by Sekisui, disputes the applicant’s arguments. 229 It should be recalled that the relevant recitals of the contested regulation read as follows: ‘(423) Price undercutting of the imports was established on the basis of data of the cooperating exporting producers in the country concerned and domestic sales data provided by the Union industry for the period of investigation … (424) The price comparison was made on a type-by-type basis for transactions at the same level of trade, and after deduction of deferred discounts. When necessary, the import price of the product concerned imported from [China] was duly adjusted when compared with the comparable product type sold by the Union industry. (425) As regards the differences in certain characteristics between the product concerned and the like product … the product types imported from [China] compete with the product types produced and sold by the Union industry. However, as the ash content of the PVA produced and sold by the cooperating exporting producers was overall higher than the ash content of the PVA produced and sold by the Union industry, the Commission considered that an adjustment was warranted to ensure a fair comparison between the Chinese and EU product types on the basis of PCNs. The Commission established the adjustment on the basis of the difference found for PVA imports with high and low ash content from third countries on the basis of information provided by users. The price difference was established at 10%. (426) On this basis, an adjustment of 10% was added to the CIF price of the PVA with high ash content sold by the cooperating exporting producers. … (429) Furthermore, as the methanol content and the packing have a negligible effect on the prices …, the Commission concluded that for undercutting purposes it was appropriate to disregard these characteristics.’ 230 Before the Court, the Commission explained that, as could be seen from a questionnaire which it had sent to Chinese exporting producers, the PCNs had been established on the basis of five characteristics of PVA, that is to say, their viscosity, their degree of hydrolysis, their ash content, their methanol content and their packaging. 231 It follows that the Commission considered it necessary to apply an upward adjustment of 10% to the prices of certain product types imported from China, which corresponded, in terms of viscosity and degree of hydrolysis, to product types sold by the Union industry, because of differences in ash content, which was higher in the former than in the latter. By contrast, it ruled out the possibility of other adjustments being warranted on the basis of differences in respect of methanol content and packaging. 232 While the applicant does not challenge the merits of the 10% adjustment applied by the Commission because of differences in ash content, it claims that other adjustments were necessary. 233 However, it did not produce any evidence capable of demonstrating that the Commission had made a manifest error of assessment in finding that the differences, in terms of methanol content and packaging, between product types that were comparable in terms of their viscosity and their degree of hydrolysis did not have a significant effect on their prices. 234 Accordingly, the second part of the sixth plea in law must be rejected. – Third part 235 The applicant submits that it is apparent from recitals 432 and 433 of the contested regulation and from the information it was able to obtain from the Commission and information provided by other exporting producers that, in its price undercutting analysis, the Commission compared 100% of the PVA imports from China with 82% of the Union industry’s sales of PVA. The Commission found that there was an 82% overlap between the PCNs sold by the Union industry and those sold by the Chinese exporting producers. The Commission thus excluded from its analysis 18% of the sales made by the Union industry. In so doing, the Commission infringed the obligation under Article 3(2) and (3) of the basic regulation to establish price undercutting for the product concerned as a whole. 236 The applicant disputes that the contested regulation can be interpreted as meaning that the Commission compared 100% of the Union industry’s sales with 82% of the sales made by the Chinese exporting producers, and relies for this purpose on the price undercutting calculations in relation to the applicant itself and to the other exporting producers, from which it may be inferred that 100% of the imports were compared with 82% of the Union industry’s sales. In any event, in its view, even if that portrayal of the facts were accepted, the Commission nevertheless infringed Article 3(2) and (3) of the basic regulation given that it was required to take 100% of the imports into consideration. 237 The Commission, supported by Sekisui, disputes the applicant’s arguments. 238 It should be recalled that recitals 432 and 433 of the contested regulation read as follows: ‘(432) Wacker and the Chinese exporting producers claimed that 18% of the exports from [China] were not sold by the Union industry since for this quantity no comparable PCNs were found. The parties referred to the judgement [of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691)] in support of their claim that the Commission’s injury analysis was only based on a limited volume of the Union industry’s sales and not the whole like product. (433) First, the Commission noted that this judgment is under appeal before the Court of Justice and therefore cannot be taken as authoritative. Second, the basic Regulation does not require the Commission to carry out the price analysis for each product type separately. Rather, the legal requirement is a determination at the level of the like product. While PCNs are used as the starting point for such assessment, it does not mean that different PCNs are not in competition. Thus, the fact that certain PCNs of the Union industry were not compared to imports does not mean that they do not suffer price pressure from the dumped imports. Indeed, the establishment of price undercutting and underselling by first calculating margins at the level of the PCN is only an intermediary and preparatory step of that required price comparison. That step is not legally mandated, but constitutes the standard practice of the Commission. Third, in cases where sampling is applied it is not surprising that there is not a perfect matching between the imports of the sampled exporting producers and the sales of sampled Union industry. This does not necessarily mean that there are no imports of certain types, but that these types were not exported to the Union by the sampled exporting producers during the investigation period. Finally, … the Commission concluded that all PVA grades competed with each other, at least to a certain extent. Therefore, the 18% of the exports of the sampled exporting producers not sold by the Union industry does not constitute a separate category of the product concerned but competes in full with the remaining grades for which a matching was found. Moreover, the PCNs not sold by the Union industry were product types suitable for application in the adhesives, polymerisation and paper sectors, and therefore equivalent and in direct competition with other product types produced and sold by the Union industry for use in the same applications, even if not used for the quantification of price undercutting.’ 239 It should be noted that, in recitals 432 and 433 of the contested regulation, the Commission summarised an argument which the applicant had based on the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), before going on to reject it. 240 It must be recalled that, in paragraphs 68 to 75 of the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), the Court held, in essence, that in so far as the Commission had not taken into account, in the analysis of price undercutting, a certain volume of the product under consideration produced by the sampled EU producers, namely 17 of the 66 product types identified, representing 8% of the sales volume of those producers, which were not exported by the sampled Chinese exporting producers, it had failed to take account of all the relevant data in the case at issue, in breach of Article 3(2) and (3) of the basic regulation (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 22). 241 In rejecting the applicant’s argument based on the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), the Commission first of all pointed out, in the first sentence of recital 433 of the contested regulation, that that judgment was under appeal. 242 Next, in the second to ninth sentences of recital 433 of the contested regulation, the Commission defended the merits of its actions in the regulation that was being challenged in the case that gave rise to the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), while also setting out general considerations in relation to the analysis of price undercutting by the PCN method. It is in that context that it stated that ‘certain PCNs of the Union industry [had] not [been] compared to imports’. Accordingly, that part of the sentence cannot be interpreted as an admission by the Commission that, in the present case, it had failed to take account of certain PCNs produced by the Union industry. 243 Lastly, in the 10th to 12th sentences of recital 433 of the contested regulation, the Commission examined the circumstances of the present case. It is apparent from that passage that, first, for 18% of PVA exported to the European Union by the sampled Chinese exporting producers, it had not been possible to find any corresponding product type sold by the Union industry and, secondly, because of the fact that all PVA were in competition with each other to a certain extent, the PVA sold by the Union industry were also competing with the 18% of PVA imported from China. 244 It follows that the Commission associated an imported product type with each product type sold by the Union industry and that, in the case of imported product types that did not match product types sold by the Union industry, it found that a competitive relationship nevertheless existed. In so doing, the Commission carried out the assessment required by Article 3(2) and (3) of the basic regulation, which consists of examining the effect on the Union industry prices of ‘dumped imports’ (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 161) and analysed price undercutting for the product under consideration as a whole. 245 Contrary to the applicant’s contention, that interpretation of recital 433 of the contested regulation is compatible with the explanation given to it by the Commission in the procedure that led to the adoption of the contested regulation, that ‘the matching percentage between the [Union] industry and the sampled Chinese exporting companies is 82%’. While it is apparent from that explanation that a total match could not be established, the Commission’s choice of wording does not make clear whether it was the Union industry or Chinese exporting producers which sold more product types. 246 Furthermore, that interpretation of recital 433 of the contested regulation is not affected by the tables produced by the applicant in the annexes to the reply. Those tables show, for each of the exporting producers sampled, including the applicant, the PCNs in respect of which there is a match between imported product types and those sold by the Union industry. Although, for confidentiality reasons, the tables do not display the quantities sold by the Union industry, by PCN, it cannot be inferred from this that only 82% of Union industry sales were taken into account, as the applicant claims. 247 Therefore, it must be held that the applicant’s argument that the Commission analysed price undercutting without taking account of all PVA sales by the Union industry has no basis in fact. 248 In any event, assuming that the Commission did exclude certain product types sold by the Union industry from the price undercutting analysis, it must be noted that the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), was set aside by the Court of Justice, which concluded that the General Court had erred in law in that judgment in holding that, in the context of the analysis of the effects of the dumped imports on the Union industry prices provided for in Article 3(2) and (3) of the basic regulation, and, in particular, in the context of the analysis of price undercutting, the Commission was, in all circumstances, obliged to take account of all the products sold by that industry, including the types of product at issue that were not exported by the sampled producing exporters (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 159). 249 As the applicant points out, it follows from paragraphs 138 to 140 of the judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38), that, in order for the Commission to be under that obligation, the first and second conditions (see paragraph 209 above) must be satisfied. As it is, contrary to the applicant’s contention, that is not the case here (see paragraphs 217 to 224 above). 250 Accordingly, the third part of the sixth plea in law must also be rejected. 251 Since all parts of the sixth plea, relating to the infringement of Article 3(2) and (3) of the basic regulation, have been rejected, the applicant also has no basis for claiming that, because of those infringements, the Commission also infringed Article 3(6) of that regulation (see paragraph 171 above). 252 In the light of all of the foregoing, the sixth plea in law must be rejected in its entirety. Seventh plea in law, alleging infringement of the rights of the defence 253 The applicant submits that the Commission infringed its rights of defence in that, despite its requests, the Commission failed to provide it with any information with respect to the Union industry’s quantities sold and sales prices by PCN or the price undercutting and underselling margins by PCN (‘the information at issue’). It criticises the Commission for not having provided it with that information at least in the form of ranges of values. In its view, although Article 19 of the basic regulation provides for the confidential treatment of certain information, its application cannot deprive the rights of the defence of their substance. It notes that Article 19(2) of the basic regulation provides that interested parties claiming confidentiality of information supplied are required to submit a non-confidential summary of that information or, at the very least, a statement of reasons as to why such summarisation is not possible. Furthermore, according to the applicant, it is irrelevant that the allegedly confidential information relates to a single EU producer. 254 The applicant submits that, for the present plea to be well founded, it does not have to show that the outcome of the investigation could have been different; it only needs to show that the possibility of a different outcome cannot be totally ruled out. However, without having the information at issue, it could not assess whether there was an absence of price undercutting or underselling for certain PCNs, nor could it assess for which PCNs the Union industry had made most of its sales. That information was therefore essential in order to be able to review the correctness of the undercutting determination, for which it might be appropriate to look at the market shares of the various PCNs in question, and to examine whether the imports had indeed caused injury to that industry. 255 The Commission, supported by Kuraray and by Sekisui, disputes the applicant’s arguments. 256 The relevant provisions of the basic regulation and a number of principles relating to those provisions are recalled in paragraphs 95 to 103 above. 257 It should be added that the protection of information covered by business secrecy does not require the exclusion, on principle, of all disclosure to interested parties of the information used during an anti-dumping investigation, irrespective of the circumstances. In particular, it is necessary to consider the particular situation of the interested party with regard to that information and, in particular, the position that that interested party occupies on the market under consideration in relation to the position of the supplier of the information (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 199; see also, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 159). 258 The case-law also makes clear that the obligation to respect confidential information cannot deprive the applicant’s rights of defence of their substance (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142 and the case-law cited). 259 In the present case, as is apparent from recital 435 of the contested regulation and from a letter which the applicant sent to the Commission on 8 July 2020, the applicant, after receiving final disclosure, requested access to the information at issue. 260 By email of 13 July 2020, Kuraray informed the Commission that it was opposed to the disclosure to the applicant of the information at issue, including in the form of ranges instead of exact values. As the Commission stated at the hearing, that email was Kuraray’s response to an email which the Commission had sent to it after receiving the applicant’s letter of 8 July 2020, referred to in paragraph 259 above. Kuraray argued that the information at issue was confidential by nature within the meaning of Article 19(1) of the basic regulation and stated that, since it was the only EU producer sampled by the Commission to sell the product concerned to third parties, the disclosure of further details in respect of the undercutting and underselling calculations would be of a competitive advantage to its competitors and would have a significantly adverse effect on it. Such disclosure, which would reveal information about quantities of PVA sold during the investigation period as well as average prices based on PCNs, would cause irreparable harm to its business operations in the European Union. 261 Furthermore, Kuraray contended that the information about price undercutting and underselling already provided to the applicant enabled it to understand the injurious effect of the imports on the Union industry and to exercise its rights of defence. It stated that each exporting producer would be subject to the same level of anti-dumping duties in respect of all of its exports to the European Union of the product concerned, without any distinction based on PCNs. 262 By email of 14 July 2020, the Commission informed the applicant that, having assessed its request for access to the information at issue, it had decided to refuse that request because the information was confidential under Article 19 of the basic regulation. The Commission’s reasons for its decision are the same as those put forward by Kuraray, set out in paragraph 261 above. 263 In recital 436 of the contested regulation, the Commission noted that, in line with Article 19 of the basic regulation, it had not been able to reveal the information at issue, since disclosure of such a level of detail would make it possible, either directly or with the addition of market intelligence, to reconstruct confidential sales or production data of individual EU producers. 264 It must be held that, in the light of Article 19(1) and (5) of the basic regulation, the Commission was not authorised to disclose the information at issue to the applicant because of Kuraray’s opposition (see, by analogy, judgments of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 178, and of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 477). 265 However, where information cannot be communicated because it is confidential, Article 19(2) of the basic regulation requires the parties which are the source of that information to provide a non-confidential summary of it whenever possible (see, to that effect, judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 483). 266 Therefore, the Court must ascertain whether, by failing to take steps to enable the applicant to be provided with the information at issue in the form of non-confidential summaries, within the meaning of Article 19(2) of the basic regulation, the Commission infringed the applicant’s rights of defence. 267 To that end, it is necessary to refer, in accordance with the principles recalled in paragraphs 20 to 22 above, to the decisions of the DSB relating to Articles 6.5 and 6.5.1 of the anti-dumping agreement, which correspond, in essence, to Article 19(1) and (2) and the first sentence of Article 19(5) of the basic agreement (see, to that effect and by analogy, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraphs 103, 188 and 190). 268 According to the Report of the Appellate Body, European Communities – Definitive anti-dumping measures on certain iron or steel fasteners from China (WT/DS 397/AB/R), adopted by the DSB on 28 July 2011 (paragraphs 542 to 544), in respect of information treated as confidential under Article 6.5 of the anti-dumping agreement, Article 6.5.1 of that agreement obliges the competent authority to require that a non-confidential summary of the information be furnished. The sufficiency of the summary provided will depend on the confidential information at issue, but the summary must permit a reasonable understanding of the substance of the information withheld in order to allow the other parties to the investigation an opportunity to respond and defend their interests. Article 6.5.1 of the anti-dumping agreement contemplates the possibility that, in exceptional circumstances, confidential information may not be susceptible of summary. In such exceptional circumstances, a party may indicate that it is not able to furnish a non-confidential summary of the information submitted in confidence, but it is nevertheless required to provide a statement of the reasons why summarisation is not possible. For its part, the competent authority must scrutinise such statements to determine whether they establish exceptional circumstances and whether the reasons given appropriately explain why, under the circumstances, no summary that permits a reasonable understanding of the information’s substance is possible. Summarisation of confidential information will not be possible where no alternative method of presenting that information can be developed that would not, either disclose the sensitive information, or fail to provide a sufficient level of detail to permit a reasonable understanding of the substance of the information submitted in confidence. 269 In the present case, when Kuraray opposed the disclosure of the information at issue, including in the form of ranges of values, it must be considered to have refused to comply with the obligation to provide non-confidential summaries of that information and to have relied in that respect on the existence of the exceptional circumstance that it was the only EU producer whose sales had been taken into account by the Commission in the analysis of price undercutting and underselling. The Commission examined Kuraray’s arguments and decided that its stance was well founded, having regard also to the fact, noted in essence in recital 436 of the contested regulation, that Chinese exporting producers would have been able to read the information sought in the light of the market intelligence already available to them. 270 Consequently, it must be held that the Commission correctly followed the steps laid down in the relevant provisions in order to strike a balance between the two objectives referred to in paragraph 98 above. 271 As to the merits of the Commission’s assessment, it should be noted that, in view of the sensitivity of the information at issue and the exceptional circumstances of this case, the Commission did not make any error in refusing its disclosure. 272 The fact that there was no error on the part of the Commission is confirmed by the fact that when the applicant received the email from the Commission refusing its request for access to the information at issue (see paragraph 262 above), it did not bring the matter before the hearing officer, although it could have done so under Article 15 of Decision (EU) 2019/339 of the President of the European Commission of 21 February 2019 on the function and terms of reference of the hearing officer in certain trade proceedings (OJ 2019 L 60, p. 20). 273 It must be held that, by refraining from bringing the matter before the hearing officer, the applicant accepted the balance struck by the Commission between the objectives in question. 274 In any event, reference should be made to the case-law referred to in paragraph 166 above concerning the conditions to be satisfied in order for an irregularity relating to respect for the rights of the defence to result in annulment of the measure in question. 275 On that point, first, the applicant maintains that the confusion which arose regarding the percentages of products imported and sold by the Union industry that were examined in the analysis of price undercutting would not have occurred if it had received the information at issue (see the third part of the sixth plea). However, it must be stated that that confusion has no bearing on whether there is a possibility that the procedure conducted by the Commission might result in a different outcome. In any event, if the applicant considered the explanations given by the Commission (see paragraph 245 above) to be ambiguous, it could have asked the Commission for further clarification. 276 Secondly, the applicant submits that, in certain circumstances, in order to ensure that the examination of the existence of significant price undercutting at the level of the like product is objective, it may be appropriate to examine the market shares of the various product types in question. In order for an interested party to be able reasonably to argue that those circumstances prevail, it would have to have information about those market shares. 277 Since, as is apparent from paragraphs 207 to 209, in certain circumstances, the analysis of price undercutting might have to be conducted by market segment, the possibility cannot a priori be entirely ruled out that if the applicant had been in possession of non-confidential summaries in respect of the information at issue, it would have been able to put forward arguments capable of demonstrating that the circumstances of the case required that such an analysis be carried out. 278 However, as is apparent from the examination of the sixth plea, in particular from paragraphs 217 to 224 above, there is nothing in the present case that would require the Commission to carry out an analysis of price undercutting by market segment. Accordingly, the possibility that the procedure might have resulted in a different outcome if the abovementioned summaries had been available to the applicant must be ruled out. 279 In the light of all of the foregoing considerations, the seventh plea in law must also be rejected and, as a result, the action must be dismissed in its entirety. Costs 280 Under Article 134(1) of the Rules of Procedure of the General Court, 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 to bear its own costs and to pay those incurred by the Commission, by Kuraray and by Sekisui, in accordance with the form of order sought by them. 281 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Parliament and the Council shall bear their own costs. 282 Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 thereof to bear its own costs. In the present case, Wegochem, which intervened in support of the main party who was unsuccessful, must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Inner Mongolia Shuangxin Environment-Friendly Material Co. Ltd to bear its own costs and to pay the costs incurred by the European Commission, by Kuraray Europe GmbH and by Sekisui Specialty Chemicals Europe SL; 3. Orders the European Parliament, the Council of the European Union and Wegochem Europe BV to bear their own costs. Truchot Kanninen Madise Frendo Perišin Delivered in open court in Luxembourg on 21 February 2024. V. Di Bucci S. Papasavvas Registrar President Table of contents Background to the dispute Forms of order sought Law First plea in law, alleging that the application of Article 2(6a) of the basic regulation is inconsistent with the obligations arising from WTO law The Commission’s request that the second to fifth pleas in law be rejected as ineffective Second plea in law, alleging infringement of Article 2(6a)(a) of the basic regulation as regards the choice of appropriate representative country Fifth plea in law, alleging infringement of Article 18 of the basic regulation Sixth plea in law, alleging infringement of Article 3(2) and (3) of the basic regulation when establishing price undercutting, and infringement of Article 3(6) of that regulation Whether the sixth plea in law is effective The merits of the sixth plea in law – First part – Second part – Third part Seventh plea in law, alleging infringement of the rights of the defence Costs * Language of the case: English. 1 This judgment is published in extract form.