Judgment;Judgment (extracts) — ECLI:EU:T:2018:792
Date: 2018-11-15
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

Summary — Judgment of the General Court (Ninth Chamber), 15 November 2018 1. Common commercial policy — Protection against dumping — Discretion of the institutions — Judicial review — Limits 2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Conditions — Association between exporter and importer (Council Regulation No 1225/2009, Art. 2(9)) 3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Automatic application — Challenge to the level of adjustments — Burden of proof (Council Regulation No 1225/2009, Art. 2(9)) 4. Common commercial policy — Protection against dumping — Dumping margin — Calculation of the export price — Factor to be taken into account — Price charged in the ordinary course of trade — Distribution companies controlled by the producer — Use of sales prices charged by those companies — Legality (Council Regulation No 1225/2009, Art. 2(9) and (10)) 5. Common commercial policy — Protection against dumping — Review procedure — Change of calculation method — Conditions — Strict interpretation (Council Regulation No 1225/2009, Arts 2(9) and 11(2), (9) and (10)) 6. Common commercial policy — Protection against dumping — Review procedure — Change of calculation method — Conditions — Change in circumstances — Considerable change in the costs of producing the products the subject of an expiry review — Absence of any reliable basis for the methodology used in the original investigation (Council Regulation No 1225/2009, Art. 11(9) and (10)) 1. See the text of the decision. (see para. 32) 2. The existence of a single economic entity between a third-country exporting producer and an entity tasked with importing its products and their first sale in the European Union does not preclude the application of Article 2(9) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, in order to determine a reliable export price at the EU frontier. On the contrary, such a situation is the most developed case of association between an exporter and an importer, and one which justifies, in the words of that provision, an export price at the EU frontier level being constructed on the basis of the price at which the imported products are first resold to an independent buyer in the territory of the Member States, applying the appropriate adjustments provided for in the second and third subparagraphs of that provision. (see para. 42) 3. Where the exporter and importer are associated, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, on the ground that the adjustments determined in respect of selling, general and administrative costs for importation into the European Union are excessive, itself to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate in relation to turnover that it suggests in order to represent the amount of those costs which it considers appropriate. That is in particular relevant when the interested party argues that the Commission has in its possession only overall data likely to cover not only the operations between the arrival at the EU frontier and the first resale to an independent buyer on the territory of the EU Member States, but also the operations prior to that arrival. (see para. 45) 4. In the context of the construction of export price under Article 2(9) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, and in the context of the adjustments which may be made to it in order to arrive at a fair comparison with normal value under Article 2(10) of that regulation, the selling, general and administrative costs and a profit margin corresponding to the activity of an importer of the products into the European Union may be deducted from the price of their first resale to an independent buyer on the Member States’ territory in order to calculate a reliable export price when importation is carried out by an entity legally distinct from the producer, but which constitutes a single economic entity with it. (see para. 51) 5. In the context of an expiry review pursuant to Article 11(2) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, the exception to using the same methodology for calculating the export price for the review investigation and the initial investigation has to be interpreted strictly, reflecting the wording and purpose of the provision authorising that exception. (see para. 60) 6. In the context of applying Article 11(10) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, in particular in order to ascertain whether the anti-dumping duties must be deducted from the price of the first resale to an independent buyer in the European Union in order to calculate the constructed export price, the same principles as those derived in the context of applying Article 11(9) of that regulation may be applied. In those different cases, it is a question of ensuring solid analysis in the comparison of complex economic situations in order not only to justify the merits of the measures adopted under the anti-dumping legislation, but also to ensure, between the operators likely to be the subject of those measures, compliance with the general EU law principle of equal treatment. In that regard, a considerable change in the costs of producing the products the subject of an expiry review, between the initial investigation period or an interim review period and the expiry review period, constitutes a change in circumstances justifying, if necessary, a change in methodology in order to construct an export price after the application of anti-dumping duties to the product concerned, which meets the objective mentioned above. Indeed, while ensuring the solidity, in the economic analysis, of the comparison of the situation between two periods justifies, as a rule, the application of the same methodology, that is not the case if the relevant parameters have sufficiently changed to render the application of the methodology previously used inappropriate for the purpose of giving a reliable result, in this case in order to assess whether or not the anti-dumping duties were duly reflected in the resale prices and subsequent selling prices in the European Union. If the production costs have significantly increased between the two periods compared, an increase in the resale prices in the European Union, even if considerable, does not necessarily guarantee that the anti-dumping duties have been duly reflected, that is to say fully reflected, in the establishment of those prices. Production costs may have increased more than prices. In that case, even if the new prices are higher than the former prices plus anti-dumping duties, the interested parties do not duly incorporate the anti-dumping duties given the change in their production costs. (see paras 62, 63)