Judgment — ECLI:EU:T:2013:64
Date: 2013-02-07
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible

Summary in OJ 2009 C 248, p. 5), in order to argue that the agreement penalised by such a decision had affected the data used by the Commission to calculate the adjustment in the present case. In the applicant’s submission, it follows from that decision that the price of the Russian gas at Waidhaus is not the result of market forces. 101 Also at the hearing, the Commission expressed doubts as to whether a document filed at that stage of the proceedings was admissible, although the Council only challenged the relevance of such a document. 102 Without there being any need to rule on the admissibility of such a document, the E.ON/GDF decision (see paragraph 100 above) having been issued by the Commission after the adoption of the contested regulation, it is sufficient to note that, although it relates to sales of gas from Russia, it only concerns the examination of a market-sharing agreement in Germany and France between E.ON and GDF for sales of gas to their customers. The decision does not relate to an examination of the market for the wholesale export of Russian gas to the European Union as a whole, or the examination of the relationships between E.ON and GDF with their supplier of Russian gas. 103 Lastly, although the applicant denies that the Waidhaus price is much higher than the price of the gas sold on the Russian domestic market, it acknowledges itself, in the reply, that the Waidhaus price may be lower than the price of gas negotiated in the United Kingdom, the United States or Canada. The institutions did not therefore choose the highest reference price on the market. Nor is it certain that the export price of gas to the Baltic States is not comparable to that of the gas which passes through Waidhaus. 104 As regards, in the second place, the decision not to deduct the export tax collected in Russia, with only transport costs being deducted, the applicant relies on three cases that led to the adoption of Council regulations, which it claims demonstrate the Council’s inconsistent and erroneous approach in taking decisions. 105 The Council replies that, in the three cases cited by the applicant, the Commission and itself deducted only the customs duties payable on domestic sales of gas but made no deduction for export tax. In that regard, the Council states that it erred at recital 31 to Council Regulation (EC) No 1891/2005 of 14 November 2005 amending Regulation (EEC) No 3068/92 imposing a definitive anti-dumping duty on imports of potassium chloride originating in Belarus, Russia or Ukraine (OJ 2005 L 302, p. 14) when it stated that customs export tax is deducted from the price of exported gas. The Council states that it was informed by the Commission that no such adjustment was in fact made. 106 In that connection, notwithstanding Regulation No 1891/2005, which, at recital 31, refers to a deduction of customs export tax, which was not in fact applied, it is apparent that that tax was not deducted in the other regulations on which the applicant relies. 107 It is apparent from recital 97 to Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti‑dumping duties on imports of certain seamless pipes and tubes of iron or non‑alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4), relied on by the applicant, that the gas costs were adjusted on the basis of the price of gas for export to Western Europe, net of transport costs and excise duty. 108 Similarly, as stated in recital 54 to Council Regulation (EC) No 1050/2006 of 11 July 2006 imposing a definitive anti-dumping duty on imports of potassium chloride originating in Belarus and Russia (OJ 2006 L 191, p. 1), an adjustment to the price of gas was made using information concerning the price of gas for export, net of transport costs, value added tax and excise duty. 109 In any event, the Council justifies export tax not being deducted by the fact that Gazprom’s prices are not influenced by the amount of the export tax. In support of that statement, the Council communicated, in Annex B.2 of the defence, data on the trend in Russian gas prices which show that that price appears, in large measure, not to depend on the amount of the export tax. The Council also stated, inter alia, that Gazprom always tried to maximise the price of gas which it sold and that the price setting was not influenced by the amount of the export tax but only by what price its customers were willing to pay. At the hearing, the Council repeated its view that what matters is the price paid at Waidhaus, and that knowing the composition of that price is irrelevant. 110 The applicant has not been able to explain or to show how the price setting by Gazprom at Waidhaus could have been influenced by the amount of the export tax. It must therefore be found that the Council has not made a manifest error of assessment in not deducting that tax from the price paid at Waidhaus. 111 In addition, it should be added that the fact that, in two of the cases cited by the applicant, excise duties were deducted and that, in the present case, transport costs were also deducted has no bearing on the issue of whether a manifest error of assessment could have been made in the present case as regards the refusal to deduct export tax. 112 Lastly, the Court rejects the applicant’s argument alleging failure to state the reasons for refusing to deduct the 30 % duty from the export of Russian gas, but deducting transport costs. The statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to the observations which it has made during the administrative procedure (Case T-410/06 Foshan City Nanhai Golden Step Industrial v Council [2010] ECR II‑879, paragraph 127). 113 In this case, at page 5 of the Commission’s letter of 12 December 2006, sent to the applicant during the administrative procedure and produced as Annex A.12 to the application, the applicant had been informed of the reasons why it was not appropriate to deduct the 30 % export duty on Russian gas, which relieved the Council of the need to repeat those explanations in the body of the contested regulation, so that it could confine itself to the matters of law and of fact on which that regulation is based. 114 The second part of the first plea is therefore unfounded. The third part of the first plea 115 The applicant claims that there has been an infringement of Article 2(10) of the basic regulation and a manifest error of assessment in that, in the contested regulation, the Council deducted from the applicant’s export price to the first independent customer the commissions of the related companies forming part of the applicant’s single economic entity. The applicant contests, in that regard, recital 62 to the contested regulation, in that it applied the Commission’s findings of 28 September 2006, namely that commissions for the applicant’s trading company subsidiaries – Eurochem Moscow and Eurochem Trading GmbH – were to be deducted from the export price. 116 In the applicant’s submission, the adjustments listed in Article 2(10) of the basic regulation are neither mandatory nor automatic and the party claiming the adjustment bears the burden of proof. 117 In the first place, it is necessary to outline the relevant factual context in which the institutions applied, in the present case, Article 2(10) of the basic regulation, which provides that the comparison between the normal value and the export price is to be made at the same level of trade and in respect of sales made at as nearly as possible the same time, with due account being taken of other differences which affect price comparability. 118 For the purposes of the application of that provision, the Council explained that the applicant and its manufacturing companies did not sell the product concerned directly to customers in the United States. It explained that the sales were carried out in the following manner: the manufacturing companies – subsidiaries of the applicant – concluded an agency agreement with the applicant, under which the latter received a commission for sales of the product. The applicant, as an agent, ensured that the product was sold by its manufacturing companies to two trading companies, also subsidiaries of the applicant, the first located in the British Virgin Islands, but which ceased to operate in 2005, and the other in Switzerland. Those trading companies sold the product concerned to the first independent customer with a mark-up. 119 Although the applicant states that it contested those findings during the administrative procedure, it is apparent that this was only in order to assert that all the companies related to it, including its manufacturing companies and its two trading companies, were owned, controlled and managed by the same single shareholder, the applicant. The applicant submits that Eurochem Moscow and Eurochem Trading performed the same functions as those of a fully integrated export sales department. 120 It is apparent from recitals 59 to 62 to the contested regulation that the normal value and the export price were determined at the ‘distributor’ level. 121 In that connection, as regards the normal value, recital 59 to the contested regulation states, as set out above, that that value was constructed on the basis of the manufacturing costs of the product type exported, after the adjustment for the gas cost mentioned in recital 58, plus a reasonable amount for SG&A costs and for profits. Recital 61 to the contested regulation states that the SG&A costs and profit were established on the basis of the weighted averages from three North American producers and that the amount for profit so established did not exceed the profit realised by the Russian producers on sales of products of the same general category on their domestic market. 122 As regards the export price, recital 62 to the contested regulation states that this was established on the basis of export prices actually paid or payable to the first independent customer in the USA, the applicant’s major export market. 123 Article 2(10) of the basic regulation provides that adjustments are possible. 124 However, according to the case-law, it is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may only be made to take account of differences in factors which affect the prices and therefore their comparability (Case T‑88/98 Kundan and Tata v Council [2002] ECR II‑4897, paragraph 94). In other words, the purpose of an adjustment is to re-establish the symmetry between normal value and export price. 125 In that connection, it should be observed that Article 2(10)(i) of the basic regulation provides that an adjustment is to be made for differences in commissions paid in respect of the sales under consideration. The second sentence of that provision states that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis. 126 That second sentence of Article 2(10)(i) of the basic regulation was inserted by Article 1(5) of Regulation No 1972/2002. Recital 6 to that regulation states that the rationale for the insertion of the sentence in question was to clarify, in line with the consistent practice of the institutions, that such adjustments were also to be made if the parties did not act on the basis of a principal-agent relationship, but achieved the same economic result by acting as buyer and seller. 127 Therefore, Article 2(10)(i) of the basic regulation allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis (Case T-299/05 Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II-565, paragraph 281). 128 In the present case, the respective roles played by the applicant, its manufacturing companies and its trading companies must therefore be examined. 129 The applicant has not disputed that commissions were paid, in accordance with the export sales agency agreement. The Council emphasised that that agreement was a fully fledged agency agreement that even included an arbitration clause. 130 The applicant submits that the institutions have not proved the effect of such commissions on the comparability of the export price and normal value. 131 However, it is apparent that the Council contended that the commission payments represented compensation for tasks performed in the context of functions similar to those of an agent working on a commission basis and that the commission payments were not a mere internal redistribution of profits that does not affect price comparability. 132 It has not been disputed that the product concerned was sold by the trading company, which set a price including a profit margin, thereby carrying out the role of trader. It should be added that the applicant has not denied its own role or the respective roles of its manufacturing and trading companies, as set out in paragraph 118 above, save to claim that the applicant and its companies constituted a single economic entity. 133 The applicant also referred to a Commission disclosure document which stated that all the applicant’s export sales were made directly via related companies. However, such a reference is not sufficient in order to challenge effectively the relationships between the companies in question as established by the Council. 134 It is not therefore apparent that there has been an infringement of Article 2(10)(i) of the basic regulation or that there has been a manifest error of assessment in relation to the application of that provision in the present case. 135 The third part of the first plea is therefore unfounded. 136 It follows from all of the foregoing that the first plea must be regarded as unfounded and, consequently, must be rejected. Second plea, alleging infringement of Article 11(1) and (3) of the basic regulation 137 By its second plea, the applicant submits that there has been infringement of Article 11(1) and (3) of the basic regulation. 138 The applicant submits, so far as the infringement of Article 11(3) of the basic regulation is concerned, that the institutions ought to have initiated, carried out and finalised an interim review at the same time as the expiry review. The applicant supplied sufficient evidence when it submitted its request for an interim review on 1 August 2005 and, in any event, when it submitted evidence in response to the Commission on 9 September and 27 October 2005 for the calculation of the dumping margin. 139 The applicant further submits, so far as the infringement of Article 11(1) of the basic regulation is concerned, that in the light of the same evidence the institutions were wrong to adopt the contested regulation and to extend the antidumping duties at their original level. The applicant emphasises, in that regard, that the extended anti-dumping duties had been established in application of methodologies intended for non-market-economy countries and on the basis of a Community industry which was necessarily smaller, since the European Union was composed of only 15 Member States at the time. 140 The Council submits that the second plea is inadmissible on the ground that – in its view – the applicant’s main contention in this plea is that the Commission and the Council failed to initiate the interim review of the original measures in good time. That plea is not intended to support the applicant’s application for annulment of the contested regulation. 141 In the alternative, the Council contends that the plea is time-barred. It maintains that the applicant can no longer challenge, at this stage, the failure or refusal to initiate the interim review, as they have become definitive. The Council relies on Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR 1-833 and Case C‑239/99 Nachi Europe [2001] ECR 1-1197. 142 The applicant contests the Council’s objection to admissibility on the ground that its second plea relates not only to the belated initiation of an interim review but also to the maintenance of the anti-dumping duties by the contested regulation. The applicant states that the Commission at no point refused to initiate the interim review, since it even initiated it on 19 December 2006, which demonstrates that the applicant was unable to bring an action for failure to act against a failure to initiate such a review or an action for annulment against a refusal to initiate that review. The applicant further submits that the Commission’s notices of initiation of investigations are not measures against which actions can be brought. 143 In any event, at the time of lodging the application the applicant could not bring an action for failure to act, since the Commission had already acted. Nor could it bring an action for annulment before the contested regulation had been adopted. 144 In that connection, it must be stated that, by its second plea, the applicant is not claiming that the Commission refused to carry out an interim review, that review having indeed been initiated by notice of initiation published on 19 December 2006. The applicant states that it is challenging the continued imposition of the anti-dumping duty, since it claims that it supplied sufficient evidence when it submitted its request for an interim review. 145 As the Council correctly observes, even if the refusal or failure by the Commission to initiate an interim review in good time were unlawful, that would not mean that the contested regulation – the only measure whose annulment is sought in the application – would thereby be unlawful. The contested regulation terminated the procedure initiated following a request for an expiry review and is not a response to the applicant’s request for an interim review, the latter having received a response by Regulation No 238/2008. 146 The second plea must therefore be declared inadmissible inasmuch as it is directed at the alleged unlawfulness in relation to the applicant’s request for an interim review. 147 Moreover, it should be added that, even if the second plea in law were considered to be based on the fact that the institutions ought to have dealt with the request for review under Article 11(2) of the basic regulation in conjunction with the request under Article 11(3), it is not indicated in what way the failure to examine both requests together could affect the lawfulness of the contested regulation. The applicant fails to show, in particular, how the substance of the dispute would have been altered if both requests had been joined. 148 The second plea must therefore be rejected as inadmissible. 149 It follows from all of the foregoing that the action must be dismissed in its entirety. Costs 150 Under Article 87(2) of the Rules of Procedure of the 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, in accordance with the form of order sought by the Council, to bear its own costs and to pay those of the Council. 151 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission is to bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders EuroChem Mineral and Chemical Company OAO (EuroChem MCC) to bear its own costs and to pay those incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs. Truchot Kanninen Martins Ribeiro Delivered in open court in Luxembourg on 7 February 2013. [Signatures] * Language of the case: English.