Opinion of the Advocate General — ECLI:EU:C:2021:827
Date: 2021-10-06
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded

summary of the financial performance of that producer’s exports, provided in Table 15 of the same producer’s reply to the anti-dumping questionnaire. According to Changmao, that table is insufficiently detailed. Contrary to the General Court’s finding in paragraph 113 of the judgment under appeal, it does not show that ‘all’ export sales were clearly loss making, but only that, ‘considered collectively’, they were loss making. Paragraph 113 is therefore vitiated by a distortion of the facts. 91 According to Changmao, in the absence of a transaction-by-transaction list of export sales, it cannot be ruled out that certain export transactions of the Japanese producer to third countries or to the European Union were sufficiently reliable to serve as a basis for determining normal value. The Commission should therefore have asked that producer for such a list. 92 Changmao deduces from this that the Commission, contrary to what the General Court held in paragraphs 115, 116, 128 and 129 of the judgment under appeal, infringed Article 2(7)(a) of the basic regulation and acted without due care and in disregard of the principle of sound administration. 93 In the second place, referring to paragraph 125 of the judgment under appeal, Changmao maintains that the General Court erred in law in finding that the Commission had not failed to fulfil its obligations under Article 6(8) of Regulation 2016/1036. 94 In the third place, Changmao claims that, in the absence of the errors committed by the Commission, its dumping margin would in all likelihood have been lower and, potentially, lower than the injury margin. In that regard, the General Court erred in law in holding, in paragraphs 117 and 118 of the judgment under appeal, that it was for Changmao to provide evidence establishing that the dumping margin would have been lower than the injury margin. That approach is based on a misreading of Article 2(7)(a) of the basic regulation and runs counter to the case-law of the Court of Justice requiring the Commission to consider on its own initiative all available information. 95 The Commission contends that the second ground of appeal is ineffective and must, in any event, be rejected as in part inadmissible, in part ineffective and in part unfounded. (b) Findings of the Court 96 In the first place, Changmao claims that, in paragraphs 115, 116, 128 and 129 of the judgment under appeal, the General Court misapplied Article 2(7)(a) of the basic regulation and erroneously held that the Commission had acted with due care and in observance of the principle of sound administration. 97 Article 2(7)(a) of the basic regulation sets out the method applicable, by way of derogation from the rules laid down in paragraphs 1 to 6 of that article, for the purpose of determining the normal value in the case of imports from non-market economy countries. 98 In the light of the wording and scheme of that provision, the main method of determining the normal value in the case of imports from non-market economy countries is the analogue country method, namely that 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 [European Union]’. Otherwise, ‘where those are not possible’, an alternative method is set out, according to which the normal value is to be determined ‘on any other reasonable basis, including the price actually paid or payable in the [European Union] for the like product, duly adjusted if necessary to include a reasonable profit margin’. It follows that the discretion enjoyed by the Commission in the choice of an analogue country does not authorise it to disregard the requirement to choose a market economy third country where such a choice is possible (see, to that effect, judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraphs 24 and 26). 99 Under the second subparagraph of Article 2(7)(a) of the basic regulation, an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. It is for the Commission, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country (see, to that effect, judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 21). 100 In the context of judicial review of the exercise of the discretion enjoyed by the Commission as regards the choice of analogue country, it is desirable, in particular, to verify that the Commission has 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 documents in the case was considered with all the care required for the view to be taken that the normal value was determined in an appropriate and not unreasonable manner (judgments of 22 October 1991, Nölle, C‑16/90, EU:C:1991:402, paragraphs 12 and 13, and of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 22). 101 In the present case, in paragraphs 112 to 114 of the judgment under appeal, the General Court stated that it was apparent both from the regulation at issue and from the explanations provided by the Commission that, first, the data provided by the Japanese producer were not reliable in so far as, inter alia, its profit margins varied greatly and unjustifiably between types and sizes of customers, second, while all domestic sales were highly profitable, all export sales were loss-making and, third, interested parties, including Changmao, raised concerns, following the provisional disclosure, as to the choice of Japan as an analogue country. 102 It is in the light of those circumstances – the first and third of which are not disputed by Changmao – that the General Court considered, in paragraphs 115 and 116 of the judgment under appeal, that the Commission had not infringed Article 2(7)(a) of the basic regulation by using EU industry data for the determination of the normal value of the product concerned, in so far as the information available at the time of the choice was not reliable and was likely to lead to an inappropriate and unreasonable choice of analogue country. 103 In that same context, in paragraphs 128 and 129 of the judgment under appeal, the General Court held that the Commission could not be criticised for not having exercised due care. The General Court reached that conclusion in view of a set of facts presented in paragraphs 120 to 124 and 127 of that judgment, which are not disputed by Changmao. Those facts relate to the limited number of aspartame-producing countries, to the conduct of the Commission’s investigation and to the comments that the latter was able to obtain. 104 In doing so, General Court did not commit any error of law. 105 It is true, as Changmao claims, that it is only if it is impossible to use the analogue country method that the Commission may determine the normal value on any other reasonable basis under Article 2(7)(a) of the basic regulation, the scope of which has been set out in paragraph 98 above. 106 However, contrary to what Changmao claims, it does not follow from this that the Commission was, in the circumstances of the present case, required to request detailed information on the Japanese producer’s export transactions. 107 In those circumstances and in view of the unreliability of the detailed information provided by that producer concerning its import sales and the more summary information provided concerning its export sales, it was neither inappropriate nor unreasonable for the Commission to determine the normal value on any other reasonable basis, in accordance with Article 2(7)(a) of the basic regulation and the case-law of the Court cited in paragraphs 99 and 100 above. The Commission was entitled to proceed in that way without first requesting more detailed information on those export sales. 108 Accordingly, the General Court did not err in law in holding, in essence, in paragraphs 115 and 116 of the judgment under appeal, that the Commission had not infringed Article 2(7)(a) of the basic regulation by using EU industry data for the purpose of determining the normal value of the product concerned, even without having first requested detailed information on the Japanese producer’s export sales. 109 The circumstance that, in paragraph 113 of the judgment under appeal, the General Court found, in general terms, that, according to the Commission’s explanations, it was apparent from the table produced by the Japanese producer that ‘all [that producer’s] export sales were loss-making’, whereas, as Changmao rightly states, according to those explanations, those sales ‘considered collectively’ were loss making, is not, in itself, capable of invalidating the conclusion drawn in the preceding paragraph. That imprecision in paragraph 113 of the judgment under appeal in no way alters the finding that the data produced by the Japanese producer were not, on the whole, reliable. It is in the light of that consideration that, in the circumstances referred to by the General Court, the Commission was entitled to determine the normal value on the basis of the EU data. 110 In the second place, in addition to the fact that, in paragraph 125 of the judgment under appeal, the General Court expressed no view whatsoever on Article 6(8) of Regulation 2016/1036, it is at the appeal stage that Changmao is alleging an infringement of that provision for the first time. In accordance with the case-law cited in paragraph 78 above, that claim is therefore inadmissible. 111 In the third place, it should be pointed out that paragraphs 117 and 118 of the judgment under appeal set out a ground expressed for the sake of completeness in support of the rejection, by the General Court, of the second plea in law in the action at first instance. First, that ground is introduced by the word ‘furthermore’. Second, by that ground, the General Court, in essence, rejected as ineffective Changmao’s argument that the Commission should have given priority to the use of the export prices of the analogue country producer, that argument having already been rejected as unfounded in paragraph 116 of the judgment under appeal. 112 It follows that Changmao’s arguments directed against paragraphs 117 and 118 of the judgment under appeal are ineffective. 113 In the light of the foregoing, the second ground of appeal must be rejected as in part inadmissible, in part unfounded and in part ineffective. 3. The third ground of appeal (a) Arguments of the parties 114 By its third ground of appeal, Changmao criticises paragraphs 141 to 144, 152, 153 and 155 to 162 of the judgment under appeal. In its view, the General Court wrongly held in those paragraphs that, by refusing the requests for adjustments that Changmao had submitted for the purpose of calculating the dumping margin, the Commission had infringed neither Article 2(10) and Article 9(4) of the basic regulation nor Article 2.4 of the Anti-Dumping Agreement. This ground of appeal is divided into three parts. (1) The first part 115 By the first part of its third ground of appeal, Changmao claims that the General Court ‘[distorted] the facts relating to the concept of evidence’. 116 Changmao maintains that, during the investigation procedure, it requested the Commission to make price adjustments pursuant to Article 2(10)(a), (b), (e) to (h) and (k) of the basic regulation, since the comparability of the EU prices used to determine the normal value and the export price was affected by differences in the production process of aspartame, regulatory requirements, after-sales services, the cost of energy, access to raw materials, patent and know-how royalties, packaging costs, ocean freight, insurance, handling, bank charges and credit costs. 117 The Commission rejected all the adjustments requested – which would have led to increased export prices or a decreased normal value – on the ground that Changmao had not demonstrated ‘that customers consistently pay different prices on the domestic market because of the difference in such factors’. On the contrary, it made adjustments which, to Changmao’s detriment, led to decreased export prices and an increased normal value without requiring such evidence, thereby making an arbitrary differentiation. 118 Contrary to what the General Court held in paragraphs 141 to 144 of the judgment under appeal by distorting the facts, Changmao submits that it did indeed provide evidence in support of the adjustments requested. It identified and relied on all of the factors affecting price comparability and demonstrated that each of those factors had an impact on prices. 119 The evidence provided by Changmao also coincides with the Commission’s findings in recital 80 of the provisional regulation and in recital 76 of the regulation at issue, according to which, during the investigation period, the weighted average of the EU industry’s prices by aspartame type was 21.1% higher than the prices of comparable imported product types. 120 In addition, Changmao was unable to provide the evidence that was necessary according to the approach adopted by the General Court, since it involved confidential documents not accessible to it. By contrast, the Commission was able to access that evidence. 121 The Commission considers that those arguments, which essentially relate to the administrative procedure, are not relevant at the appeal stage. In its view, the first part of the third ground of appeal is in part inadmissible and in part unfounded. (2) The second part 122 The second part of Changmao’s third plea comprises two complaints, each alleging a different error of law committed by the General Court. 123 By the first complaint, it claims that the General Court, in paragraphs 151 and 153 of the judgment under appeal, misinterpreted Article 2(10) of the basic regulation by disregarding the fact that, according to the WTO Dispute Settlement Body, an exporter not granted MET must prove as constructively as possible the facts which necessitate an adjustment, whereas the Commission must assess and grant the requested adjustments by means of undistorted market data sources. 124 In the present case, Changmao did not base its request for adjustments on its own production costs in China, contrary to what the General Court stated in paragraph 151 of the judgment under appeal while wrongly associating the evidence provided by it – according to which the differences in costs affected price comparability – with the fact that costs were distorted in China. The Commission should have sought to obtain from the EU producer the data necessary to make the adjustments requested and to assess the differences in the costs, in the European Union, of raw materials, production processes, regulatory compliance, freight and insurance as well as the cost of import duties, patent royalties and packaging. 125 In that regard, Changmao is of the opinion that the circumstances of the present case differ fundamentally from those of the case which gave rise to the judgment of 29 July 2019, Shanxi Taigang Stainless Steel v Commission (C‑436/18 P, EU:C:2019:643). 126 Relying on Article 2.4 of the Anti-Dumping Agreement, Changmao adds that a fair comparison must always be made between the normal value and the export price, including when the normal value is determined on the basis of a market economy third country and the exporter concerned has been denied MET. Requiring an exporter such as Changmao to prove that customers consistently pay different prices on the domestic market because of alleged differences in production costs would prevent any adjustment in that respect. That incorrect approach of the Commission and the General Court is contrary to WTO law, to the case-law of the EU Courts and to the practice of the EU institutions. 127 By the second complaint, Changmao claims that the General Court was wrong to hold that Article 2(10) of the basic regulation makes adjustments subject to the condition that customers consistently pay different prices on the domestic market because of the differences in the relevant factors. Such a condition is provided for specifically only in Article 2(10)(k) of that regulation, but not generally in Article 2(10)(a) to (j) of that regulation. That condition is not required by Article 2.4 of the Anti-Dumping Agreement, according to which the burden of proof imposed on interested parties must not be unreasonable. That condition places an unreasonable burden of proof on non-market economy exporters, since they do not have at their disposal the data used by the analogue country producer to determine the normal value. 128 In its reply, Changmao states that it did indeed rely on WTO law before the General Court, as is apparent from paragraphs 31 and 33 and footnotes 24 to 26 of the reply lodged at first instance. 129 The Commission contends that all of those arguments should be rejected. The first complaint, which seeks to challenge paragraphs 151 to 153 of the judgment under appeal in the light of WTO law, is inadmissible and, in any event, unfounded. The second complaint is unfounded. (3) The third part 130 By the third part of its third ground of appeal, Changmao criticises, in the first place, paragraphs 155 to 160 of the judgment under appeal. In its view, the findings of the General Court in those paragraphs are vitiated by procedural errors and errors relating to its rights of defence and the Commission’s duties of sound administration and due care. In that context, the General Court also infringed Article 20(2) and (4) of Regulation 2016/1036 and Articles 6.2, 6.4, 12.2.1 and 12.2.2 of the Anti-Dumping Agreement. 131 According to Changmao, in the light of those provisions, paragraph 155 of the judgment under appeal is vitiated by an error, since the Commission did not provide it with the reasoning justifying the rejection of the evidence on the differences in the physical characteristics of the EU producer’s products due to differences in regulatory requirements. Moreover, contrary to Article 6.4 of the Anti-Dumping Agreement, the Commission gave it a period of only 10 days to comment on the change in the choice of analogue producer, which occurred at a late stage in the procedure. The EU producer provided insufficient information. 132 In the second place, Changmao takes issue with paragraph 207 of the judgment under appeal, by which, in its view, the General Court wrongly refused to grant the measures of organisation of procedure or inquiry it had requested in connection with its plea concerning the adjustments and which were necessary for its effective judicial protection. 133 Lastly, referring to the second subparagraph of Article 9(4) of the basic regulation, Changmao states that the adjustments requested would have reduced its dumping margin to levels below the injury margin. 134 The Commission contends that this third ground of appeal should be rejected as in part inadmissible and in part unfounded. (b) Findings of the Court 135 As regards the third ground of appeal, which alleges distortion of the facts and errors of law and of procedure, it is appropriate to examine, first, the first part and the second complaint of the second part, then the third part and, lastly, the first complaint of the second part. (1) The first part and the second complaint of the second part 136 By this part and this complaint, Changmao claims, in essence, that the General Court distorted the facts and erred in law in the examination, in paragraphs 141 to 144 of the judgment under appeal, of its arguments seeking to challenge the Commission’s rejection of the adjustments that it had requested under Article 2(10) of the basic regulation. 137 In that regard, it must be recalled that that provision provides that, where a fair comparison cannot be made between the normal value and the export price, due allowance is to be made, in the form of adjustments, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. 138 In accordance with the case-law of the Court, it is apparent from the wording and broad scheme of Article 2(10) of the basic regulation that an adjustment to the export price or to the normal value may be made only to take account of differences in relation to factors which affect both prices, and which thus affect their comparability, in order to ensure that the comparison is made at the same level of trade (see, to that effect, judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 53, and of 4 May 2017, RFA International v Commission, C‑239/15 P, not published, EU:C:2017:337, paragraph 42). 139 It is also apparent from the case-law of the Court that, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified. Accordingly, the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them, irrespective of who they are (see, to that effect, judgment of 16 February 2012, Council v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraphs 58 and 60). It follows that it is for the party wishing to rely on such an adjustment to demonstrate that the factor in respect of which that adjustment is requested is capable of affecting prices and price comparability. 140 In the present case, in paragraphs 139 and 141 to 143 of the judgment under appeal, the General Court, in essence, held that it was for Changmao to prove that its request for adjustments under Article 2(10) of the basic regulation was justified and that the differences in costs alleged by it translated into differences in prices, while noting that Changmao did not dispute the finding, in recital 49 of the regulation at issue, that it had not produced any evidence in support of its request for adjustments. As a result, the General Court held, in paragraph 144 of the judgment under appeal, that Changmao could not complain that the Commission had infringed Article 2(10) of the basic regulation by refusing to make the adjustments requested for the purposes of determining the dumping margin. 141 Those findings are not vitiated by any error of law. 142 First, contrary to Changmao’s claims, the General Court was fully entitled to hold that, in accordance with both the wording and scheme of Article 2(10) of the basic regulation and with the case-law of the Court of Justice cited in paragraphs 138 and 139 above, it was for Changmao to establish, in support of its request for adjustments, that the alleged differences in costs were such as to affect prices and price comparability. 143 Second, in so far as, by its arguments summarised in paragraphs 116 and 117 above, Changmao appears to claim that, contrary to what the General Court held, it had indeed provided evidence demonstrating that its requests for adjustments under Article 2(10) of the basic regulation were justified, its line of argument amounts, in reality, to requesting the Court of Justice to carry out a new assessment of the facts and evidence. In the absence of any demonstration – or even allegation – of a distortion of those facts and that evidence, that line of argument is inadmissible, in accordance with the settled case-law of the Court cited in paragraph 73 above. 144 Moreover, in so far as Changmao appears to claim that the General Court misconstrued the very concept of ‘evidence’, its line of argument stems from confusion between, on the one hand, a claim or an assertion of the factual circumstances, supported by mere suppositions, and, on the other hand, proof of the materiality of those circumstances. Aside from the fact that, before the Court of Justice, Changmao merely makes claims without substantiating them with evidence that would allow the reality of the alleged differences in costs and their impact on price comparability, within the meaning of Article 2(10) of the basic regulation, to be verified and established, that party identifies no evidence which the General Court failed to take into account or which it distorted. 145 Third, Changmao is wrong to seek to justify its requests for adjustments on the basis of recital 76 of the regulation at issue, according to which the Commission found that the weighted average of the EU industry prices per aspartame type was 21.1% higher than the prices of comparable imported product types. That price difference reflects the undercutting margin and forms part of the determination of material injury suffered by the EU industry. However, as the Advocate General observed in point 151 of his Opinion, that recital does not in any way suggest that that margin of undercutting was caused by differences in production costs. 146 In the light of the foregoing, the first part and the second complaint of the second part of the third ground of appeal must be rejected as in part inadmissible and in part unfounded. (2) The third part 147 By the third part of its third ground of appeal, Changmao takes issue with paragraphs 155 to 160 and 207 of the judgment under appeal, on the ground that, by rejecting its arguments alleging an unreasonable burden of proof, the General Court disregarded its rights of defence and the Commission’s duties of sound administration and due care, and infringed Articles 6.2, 6.4, 12.2.1 and 12.2.2 of the Anti-Dumping Agreement and Article 20(2) and (4) of Regulation 2016/1036. 148 At the outset, it should be pointed out that it is at the stage of the appeal that Changmao is alleging for the first time infringement of Articles 6.2, 6.4, 12.2.1 and 12.2.2 of the Anti-Dumping Agreement and of Article 20(2) and (4) of Regulation 2016/1036. It follows that, as the Advocate General observed in points 124 and 125 of his Opinion, in accordance with the case-law cited in paragraph 78 above, the third part is inadmissible in so far as it is based on an alleged infringement of those provisions. 149 With regard to the substance, in the first place, Changmao claims, in essence, that, in paragraphs 155 to 160 of the judgment under appeal, the General Court placed an unreasonable burden of proof on it, thereby infringing Changmao’s rights of defence and disregarding the duty of care incumbent on the Commission and the principle of sound administration. 150 In those paragraphs, the General Court considered that, in the light of the data communicated by the Commission during the investigation and the burden of proof borne by Changmao in the context of its requests for adjustments, Changmao could not complain that the Commission placed an unreasonable burden of proof on it. 151 Contrary to what Changmao appears to argue, the mere fact that, in the present case, the normal value was established, in accordance with Article 2(7)(a) of the basic regulation, on the basis of the price actually paid or payable in the European Union is not such as to require a relaxation of the rule on the allocation of the burden of proof, as it stems from Article 2(10) of that regulation and from the case-law cited in paragraphs 138 and 139 above. As the Advocate General stated in point 140 of his Opinion, that rule, according to which it is for the party requesting an adjustment in respect of one of the factors referred to in Article 2(10) of the basic regulation to demonstrate that that factor is such as to affect prices and price comparability, applies irrespective of the method used to determine the normal value. 152 Moreover, Changmao claims that, where the normal value is determined on the basis of the price paid or payable in the European Union, an exporting producer from the country under investigation is prevented from fully exercising its rights of defence since it does not have access to EU industry data, which has been its situation in the present case. It is expressly clear from the General Court’s findings in paragraphs 155 and 156 of the judgment under appeal that it was apparent from the regulation at issue that the Commission had disclosed to the Chinese exporting producers data relating to the EU producer and that Changmao had been able to comment on those data. On the basis of those findings, which are not called into question by Changmao in the context of the present appeal as such, the General Court could deduce, without committing an error of law, in paragraph 159 of the judgment under appeal, that Changmao could not validly complain that the Commission had failed to act in accordance with the principle of sound administration and infringed its rights of defence by placing an unreasonable burden of proof on it. 153 Accordingly, it is necessary to reject as unfounded the arguments put forward by Changmao in support of the third part of its third ground of appeal, alleging that paragraphs 155 to 160 of the judgment under appeal are vitiated by errors relating to the rights of the defence, the duty of care incumbent on the Commission and the principle of sound administration. 154 In the second place, Changmao takes issue with paragraph 207 of the judgment under appeal in so far as, by that paragraph, the General Court wrongly refused to adopt the measures of organisation of procedure or inquiry it had requested. 155 In that paragraph of the judgment under appeal, the General Court dismissed the action brought by Changmao at first instance ‘without it being necessary to grant [Changmao’s] requests for measures of organisation of procedure and inquiry’. 156 It should be recalled that, according to the settled case-law of the Court of Justice, the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (judgments of 10 July 2001, Ismeri Europa v Court of Auditors, C‑315/99 P, EU:C:2001:391, paragraph 19, and of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 28). 157 Accordingly, Changmao cannot reasonably challenge, at the stage of the present appeal, the General Court’s decision not to adopt the measures of organisation of procedure and inquiry the adoption of which it had suggested in its written pleadings before that court. 158 It follows that the third part of the third ground of appeal must be rejected as in part inadmissible and in part unfounded. (3) The first complaint of the second part 159 By this complaint, Changmao claims that the General Court erred in law in paragraphs 151 to 153 of the judgment under appeal. 160 In those paragraphs, the General Court stated that, ‘in any event’, since Changmao did not benefit from MET, the data concerning it could not be taken into account in respect of adjustments within the meaning of Article 2(10) of the basic regulation, which cannot be used in order to render Article 2(7)(a) of that regulation ineffective. 161 It is clear from the words ‘in any event’ that the considerations set out in those paragraphs of the judgment under appeal were included for the sake of completeness. 162 It is apparent from the analysis of the first and third parts and of the second complaint of the second part of the present ground of appeal that Changmao has not succeeded in demonstrating that the principal ground of the judgment, set out in particular in paragraphs 141 and 144 of the judgment under appeal, read in conjunction with paragraphs 155 to 160 thereof, is vitiated by an error of law. 163 It follows that, as the Advocate General observed in points 186 and 187 of his Opinion, the present complaint must be rejected as ineffective, without there being any need to rule on its admissibility. 164 In the light of all the foregoing considerations, the third ground of appeal must be rejected in its entirety. 4. The fourth ground of appeal (a) Arguments of the parties 165 By its fourth ground of appeal, Changmao claims that the General Court erred in law and distorted the facts in so far as it held, in paragraphs 148 and 150 of the judgment under appeal, that the Commission was not required to make the adjustments provided for in Article 2(10) of the basic regulation for the purpose of determining the existence of injury and, on that ground, rejected its arguments alleging infringement of Article 3(2) and (3) and Article 9(4) of that regulation and disregard of the principle of sound administration and of the duty of care. 166 Changmao deduces from the case-law of the General Court that the determination of injury to the EU industry, pursuant to Article 3(2) of the basic regulation, requires a fair comparison to be made between the export price and the price that was or should have been obtained by the EU industry in sales in the territory of the European Union. In order to ensure a fair comparison, prices should be compared at the same level of trade, including all the costs relating to the levels of trade which must be taken into account. 167 According to Changmao, in respect of the adjustments provided for in Article 2(10) of the basic regulation, it is necessary to take into consideration the cost differences between the EU industry and exporters resulting from after-sales services provided solely by the former, from packaging and from patent and know-how royalties. The Commission’s practice is to grant such adjustments by reducing the sales prices or costs of the EU industry to the extent necessary. 168 Those adjustments may thus be granted under Article 2(10)(f) and (h) of the basic regulation as well as under Article 3(2) of that regulation. 169 The General Court thus erred in law by validating, in paragraphs 148 and 150 of the judgment under appeal, the Commission’s refusal to make the adjustments that Changmao had thus requested, with supporting evidence, for the purpose of determining the existence of injury. It was also wrong to hold that the Commission had not disregarded the principle of sound administration and had acted with due diligence. According to Changmao, if the adjustments requested had been made, the Commission would not have been able to establish the existence of injury or, at least, would have concluded that there was a lower injury margin. Therefore, the General Court also erred in law in holding that the Commission’s approach did not infringe Article 9(4) of the basic regulation. 170 The Commission contends that all those arguments should be rejected as either inadmissible or ineffective and, in any event, unfounded. (b) Findings of the Court 171 By its fourth ground of appeal, Changmao claims that the General Court erred in law in paragraphs 148 and 150 of the judgment under appeal. 172 In those paragraphs, the General Court held that Article 3(2) and (3) and Article 9(4) of the basic regulation did not require the Commission to make, for the purpose of determining the existence of injury, the adjustments provided for in Article 2(10) of that regulation, such that Changmao cannot complain that the Commission infringed that provision by refusing to make the adjustments requested for the purpose of determining injury. 173 Changmao claims, in essence, that the determination of injury in accordance with Article 3(2) of the basic regulation means that adjustments analogous to those provided for in Article 2(10) of that regulation must be made where they are necessary in order to make a fair comparison, that is to say a comparison made at the same level of trade, between the export price and the price that was or should have been obtained by the EU industry. 174 However, even if, as Changmao claims, Article 3(2) of the basic regulation implies, despite its wording, an obligation for the Commission, when determining the existence of injury, to make such adjustments, it would then be appropriate to consider, as the Advocate General did in point 206 of his Opinion and by analogy with the case-law cited in paragraph 139 above, that it would be for the party requesting an adjustment to provide evidence justifying it. 175 First, it is common ground that Changmao seeks, in essence, the same adjustments for the purposes of both the determination of the existence of dumping and that of injury. Those adjustments were, moreover, addressed in a single plea before the General Court. As is apparent from paragraphs 140 and 142 to 146 above, the General Court held, in the exercise of its exclusive jurisdiction to assess the facts and without committing an error of law, that Changmao had not provided evidence that those adjustments were necessary. 176 Second, the Commission rejected the requests for adjustments for the purpose of determining the existence of injury on the ground, set out in recital 70 of the regulation at issue, that the investigation ‘had not revealed any quality or other difference between the product concerned and the like product that would be systematically reflected in prices’. As the Advocate General observed in point 207 of his Opinion, the General Court, in essence, endorsed that ground. Changmao criticises that paragraph only in the context of the third complaint of the third ground of appeal, which has been rejected in paragraph 164 above. 177 In those circumstances, the fourth ground of appeal must be rejected as ineffective, without it being necessary to determine whether, when determining the existence of injury pursuant to Article 3(2) of the basic regulation, the Commission may, or even must, make adjustments in order to ensure a comparison of prices at the same level of trade. 5. The fifth ground of appeal (a) Arguments of the parties 178 By its fifth ground of appeal, Changmao claims that paragraphs 187, 189 to 191, 194, 200, 201 and 203 to 206 of the judgment under appeal are vitiated by errors of law and a distortion of the facts. 179 That ground is based on the premiss that the EU producer and its suppliers of raw materials, namely the Japanese producer and suppliers in the European Union, which are wholly owned subsidiaries of the Japanese producer, belonged to a single corporate and economic entity. Changmao deduces from this that the prices paid by the EU producer for the purchase of raw materials were prices between related parties and that they affected that producer’s production costs and selling prices. 180 In its view, it follows from Article 2(7)(a) and Article 3 of the basic regulation that, for the purpose of determining whether there is dumping and injury, the Commission is under an obligation to ensure, relying on evidence, that the prices used are reliable and not distorted. Article 6(8) of Regulation 2016/1036 requires that it use the data of the cooperating parties as far as possible. It is nevertheless for suppliers to provide evidence that the prices of their raw materials sold to related parties in the European Union are market prices. 181 Contrary to the approach taken by the General Court in paragraphs 187, 200, 201 and 203 to 206 of the judgment under appeal, the Commission’s usual practice involves requesting cooperating interested parties, such as the EU industry, to submit questionnaires for their related suppliers outside and within the European Union. Changmao disputed the price of the raw materials used by the Commission. 182 The General Court also made an error in paragraph 191 of the judgment under appeal, in which it considered that the Commission had observed the principle of sound administration and relied on evidence in order to find that the prices of raw materials charged by suppliers to the related producer in the European Union complied with market conditions. According to Changmao, the Commission did not verify the accuracy and reliability of the information which it derived, in that regard, from a general report prepared by a Chinese company on the prices of raw materials in China, in order to ensure that it constituted positive and objective evidence. That evidence is not sufficient to ensure that the prices charged by those suppliers were in fact market prices. The Commission could have asked the EU producer to complete a detailed questionnaire on those prices and verified the responses. 183 That duty to verify exists regardless of the evidence or requests of the interested parties. Paragraph 206 of the judgment under appeal is therefore erroneous. 184 Changmao adds that the judgment of 23 September 2015, Hüpeden v Council and Commission (T‑206/14, not published, EU:T:2015:672), cited in paragraphs 187 and 203 of the judgment under appeal, is not relevant because the case which gave rise to that judgment did not concern the exercise, by the Commission, of its discretion in the assessment as to the existence of dumping and injury in the light of the principle of sound administration and the duty of care. 185 The Commission contends that the present ground of appeal is inadmissible and, in any event, unfounded. (b) Findings of the Court 186 Under Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested. Consequently, according to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the relevant ground of appeal will be declared inadmissible (judgment of 20 September 2018, Agria Polska and Others v Commission, C‑373/17 P, EU:C:2018:756, paragraph 33 and the case-law cited). 187 Inter alia, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 30 and the case-law cited, and order of 29 June 2016, Ombudsman v Staelen, C‑337/15 P, not published, EU:C:2016:670, paragraph 22). 188 Although Changmao identifies precisely the paragraphs of the judgment under appeal which it seeks to criticise by its fifth plea, it has failed to explain precisely and specifically the errors of law allegedly made by the General Court. 189 Moreover, it does not appear that, by the arguments put forward in the context of the present ground of appeal, Changmao disputes the reasoning of the judgment under appeal. On the contrary, those arguments appear, in essence, to seek to criticise the Commission’s conduct in the procedure leading to the adoption of the regulation at issue. 190 It follows that the fifth ground of appeal is inadmissible. 191 Since none of the grounds of appeal put forward by Changmao in support of its appeal can succeed, the appeal must be dismissed in its entirety. Costs 192 Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 193 Since the Commission has applied for costs to be awarded against Changmao and the latter has been unsuccessful, Changmao must be ordered to bear its own costs and to pay those incurred by the Commission. On those grounds, the Court (Fourth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Changmao Biochemical Engineering Co. Ltd to bear its own costs and to pay those incurred by the European Commission. Jürimäe Rodin Piçarra Delivered in open court in Luxembourg on 28 April 2022. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English.