JUDGMENT OF THE COURT (Ninth Chamber)
29 February 2024 (*)
(Appeal – Dumping – Implementing Regulation (EU) 2019/1688 – Imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America – Definitive anti-dumping duty – Regulation (EU) 2016/1036 – Definitive collection of the provisional duties – Hierarchy between the calculation methods – Calculation of the undercutting margin)
In Case C‑688/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 November 2022,
Methanol Holdings (Trinidad) Ltd, established in Couva (Trinidad and
Tobago), represented by V. Crochet and B. Servais, avocats,
appellant,
the other parties to the proceedings being:
European Commission, represented by G. Luengo, P. Němečková and J. Zieliński, acting as Agents,
defendant at first instance,
Achema AB, established in Jonava (Lithuania),
Grupa Azoty S.A., established in Tarnów (Poland),
Grupa Azoty Zakłady Azotowe Puławy S.A., established in Puławy (Poland),
represented by M. Hommé and B. O’Connor, avocats,
interveners at first instance,
THE COURT (Ninth Chamber),
composed of J.‑C. Bonichot, acting as President of the Chamber, S. Rodin (Rapporteur) and L.S. Rossi, Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal, Methanol Holdings (Trinidad) Ltd (‘MHTL’) seeks to have set aside the judgment of the General Court of the European Union of 14 September 2022, Methanol Holdings (Trinidad) v Commission (T‑744/19, ‘the judgment under appeal’, EU:T:2022:558), by which the General Court rejected its action for annulment of Commission Implementing Regulation (EU) 2019/1688 of 8 October 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 258, p. 21; ‘the implementing regulation at issue’), to the extent that that regulation related to it, and ordered it to pay the costs.
Legal context
2        Article 1 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) (‘the basic regulation’), provides:
‘1.      An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the [European] Union causes injury.
…’
3        Article 2 of that regulation, entitled ‘Determination of dumping’, provides:
‘…
8.      The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union.
9.      In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer or are not resold in the condition in which they were imported, on any reasonable basis.
In those cases, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Union frontier level.
…
C.      COMPARISON
10.      A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. …
…’
4        Article 3 of that regulation, entitled ‘Determination of injury’, states:
‘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, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation; the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.
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.
7.      Known factors, other than the dumped imports, which at the same time are injuring the Union industry shall also be examined to ensure that the injury caused by those other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in that respect shall include: the volume and prices of imports not sold at dumping prices; contraction in demand or changes in the patterns of consumption; restrictive trade practices of, and competition between, third country and Union producers; developments in technology and the export performance; and productivity of the Union industry.
8.      The effect of the dumped imports shall be assessed in relation to the production of the Union industry of the like product when available data permit the separate identification of that production on the basis of criteria such as the production process, producers’ sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be assessed by examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.
…’
5        Article 9(4) of that regulation provides:
‘Where the facts as finally established show that there is dumping, and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the [European] Commission acting in accordance with the examination procedure referred to in Article 15(3). Where provisional duties are in force, the Commission shall initiate that procedure no later than one month of the expiry of such duties.
The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union
industry. …
…’
Background to the dispute
6        The background to the dispute is set out in paragraphs 2 to 40 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
7        On 13 August 2018, the Commission initiated an investigation following a complaint lodged by Fertilizers Europe on behalf of producers representing more than 50% of the total Union production of mixtures of urea and ammonium nitrate.
8        The product under investigation corresponded to mixtures of urea and ammonium nitrate in aqueous or ammoniacal solution that may have additives, currently falling under CN code 3102 80 00 (‘UAN’).
9        The appellant, a company governed by the law of Trinidad and Tobago, sold UAN to a related purchaser in the European Union, namely Helm AG (‘HAG’). The latter then sold UAN to independent customers in the European Union and to two related customers located in the European Union, namely Helm Engrais France (‘HEF’) and Helm Iberica (‘HIB’).
10      On 10 April 2019, the Commission adopted Implementing Regulation (EU) 2019/576 imposing a provisional anti-dumping duty on imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 100, p. 7).
11      On 8 October 2019, in application of Article 9(4) of the basic regulation, the Commission adopted the implementing regulation at issue establishing, inter alia, an anti-dumping duty of EUR 22.24 per tonne of the imports into the European Union of UAN manufactured by MHTL.
The procedure before the General Court and the judgment under appeal
12      By application lodged at the Registry of the General Court, MHTL brought an action for annulment of the implementing regulation at issue in so far as that regulation concerns it.
13      In support of its action, MHTL relied on a single plea in law, submitting that the Commission had infringed Article 3(1) to (3) and (5) to (8) of the basic regulation and the principle of equal treatment by applying, by analogy, Article 2(9) of that regulation for the determination of MHTL’s price to be used for the calculation of the undercutting and underselling margins.
14      By the judgment under appeal, the General Court dismissed that action in its entirety.
15      First, MHTL submitted that the methodology applied by the Commission to calculate the undercutting and underselling margins infringed Article 3(1) of the basic regulation.
16      The General Court
found that the provisions of Article 3(1) to (3) of the basic regulation do not lay down any particular method for determining the effect of the dumped imports on prices of like products of the Union industry. Since MHTL did not allege that the export price that it had declared at customs was not reliable, specifically because of an intra-group relationship with HAG, the related importer, the General Court held that the application by analogy of Article 2(9) of the regulation was correct.
17      Secondly, MHTL alleged that the method applied by the Commission infringed Article 3(2), (3) and (5) to (8) of the basic regulation and the principle of equal treatment, since the Commission had not taken into account the prices negotiated with independent buyers and had not compared the export price and the Union industry price at the same level of trade.
18      In that regard the General Court found that, in the calculation of the undercutting margin, used by the Commission as the main basis for that calculation, it had reduced the prices of sales of exporting producers in the European Union by the amount of selling, general and administrative
expenses (‘SG&A expenses’) and of a notional profit margin of their related trading companies, whereas it had made no such deduction for Union industry sales via related traders. The General Court concluded therefrom that that calculation, which failed to comply with the obligation to compare prices of the product concerned and those of Union industry at the same level of trade, was incorrect. However, after having analysed the two additional calculations of the undercutting margin used by the Commission, it held that the Commission’s findings regarding the existence of price undercutting, based on those two calculations, were not vitiated by any error of law nor of any manifest error of assessment.
Finally, it held that the error vitiating the first calculation of the undercutting margin did not affect the calculation of the underselling margin, which had been set using the cost of production of the Union producers.
Forms of order sought by the parties before the Court of Justice
19      The appellant asks the Court to:
–        set aside the judgment under appeal; and
–        principally, grant the form of order that it sought in its action before the General Court and order the Commission and any intervening party to pay the costs including those incurred at first instance; or,
–        in the alternative, refer back the case to the General Court for reconsideration and reserve the costs of the proceedings at first instance and on appeal.
20      The Commission, of the one part, Achema AB, Grupa Azoty S.A. and Grupa Azoty Zakłady Azotowe Puławy S.A., of the other part, ask the Court to:
–        dismiss the appeal as unfounded and
–        order the appellant to pay the costs of the proceedings.
The appeal
21      In support of its appeal, the appellant submits two grounds, alleging, first, an error of law by the General Court in respect of the definition of the level of trade that the Commission can take into account in order to establish the export price for the purposes of calculating the undercutting and underselling margins; and, secondly, an error of law committed by the General Court in finding that its arguments regarding the effect of the error committed by the Commission in establishing the export price on its findings in respect of price depression and price suppression were inadmissible because they were raised only in the reply.
The first ground of appeal
Arguments of the parties
22      The first ground of appeal concerns the General Court’s findings on the determination of the export price for the purpose of calculating the undercutting and underselling margins, set out in
paragraphs 74, 76, 82 to 94, 100 to 105 and 109 of the judgment under appeal.
23      The appellant submits that the General Court erred in law in interpreting the concept of ‘level of trade’ as referring to the type of entity selling the product concerned rather than to the type of customer buying the product concerned and
in holding, consequently, that the Commission had conducted a fair comparison when calculating MHTL’s undercutting and underselling margins, in accordance with Article 3(2) and (3) of the basic regulation. As a result of that error, the General Court erroneously concluded that the prices compared by the Commission in its two additional calculations of the undercutting margin and in its calculation of the underselling margin were at the same level of trade, namely at the level of the sale of UAN by producing entities.
24      The General Court thus incorrectly defined the concept of ‘level of trade’ as the level at which the transaction takes place, having regard to the type of entity selling the product according to whether it was a producer or a related trader.
According to the appellant, the only correct definition of the concept of ‘level of trade’, as consistently applied by the Commission in previous investigations and by the Court of Justice in previous judgments, corresponds to the level at which the transaction takes place with respect to the type of customers buying the product concerned.
25      That definition, to be applied when calculating the dumping margin under Article 2 of the basic regulation, must necessarily be applied when determining whether to apply, by analogy, paragraph 9 of that article for the purpose of calculating the undercutting and underselling margins.
26      According to the appellant, the Commission is entitled to rely, by analogy, on that provision for the purpose of calculating the undercutting and underselling margins only in cases where the exporting producer’s related entity in the European Union sells a product concerned to independent customers at a level of trade which is further down the sales distribution chain than the sales made by the Union industry. In those circumstances, in the absence of a reliable price at the appropriate level of trade, the Commission is entitled to deduct the SG&A expenses of that entity and a notional profit margin from the sale price of the product concerned in order to construct the export price.
27      However, Article 2(9) of the basic regulation may not be applied by analogy in order to construct the export price for the purpose of calculating the undercutting and underselling margins when the Union industry and its related entities, on the one hand, and the exporting producer’s related entities in the European Union, on the other hand, sell the product concerned to independent customers in the European Union at the same level of trade, since, in those circumstances, there would be a reliable price at the appropriate level of trade.
28      The appellant submits that, in the present case, the sales of UAN by Union
producers and their related entities to independent customers, on the one hand, and those of HAG, HEF and HIB to their customers, on the other hand, occur at the same level of trade, which corresponds to the ‘initial level of trade of the product concerned’. The application, by analogy, of Article 2(9) of the basic regulation to the HAG, HEF and HIB sales leads to an artificially low export price which is not at the ‘initial level of trade of the product concerned’ but at a level further up in the sales distribution chain, namely at the level of trade to a trader.
29      Thus, according to the appellant, for the purpose of calculating the undercutting and underselling margins, the Commission failed to compare prices at the same level of trade in so far as it compared a constructed export price charged by MHTL to a trader, namely HAG, with the Union industry’s price for direct sales to independent distributors, retailers, wholesalers and large cooperatives.
30      The Commission, of the one part, Achema, Grupa Azoty and Grupa Azoty Zakłady Azotowe Puławy, of the other part, contest the merits of this ground of appeal.
Findings of the Court
31      The first ground of appeal alleges that the General Court misinterpreted the provisions of Article 3(1) to (3) and (5) to (8) and Article 9(4) of the basic regulation when defining, in paragraphs 74, 76, 82 to 94, 100 to 105 and 109, of the judgment under appeal, the export price for the purpose of calculating the undercutting and underselling margins.
32      According to Article 1(1) of the basic regulation, in order for it to be possible to impose an anti-dumping duty on a dumped product, it is necessary that its release for free circulation in the European Union cause injury.
33      For the purpose of determining whether there is such injury, Article 3(2) of that regulation provides that it is necessary to carry out an objective examination of the volume of the dumped imports and their effect on prices in the Union market for like products, as well as their impact on the Union industry. With regard to the effect of the imports on prices, Article 3(3) of the regulation provides that the Commission must give consideration to whether there has been, for those imports, significant price undercutting 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 to a significant degree.
34      In that respect, it should be recalled that, in the sphere of the common commercial policy and,
in particular, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (judgment 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 63 and the case-law cited).
35      In that regard, it should also be noted that the establishment by the Commission of a definitive anti-dumping duty does not mean that the proceedings brought before the Courts of the European Union in order to challenge that anti-dumping duty are not adversarial. With the exception of grounds involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for the contested act, it is for the applicant to raise pleas in law against that act and to adduce evidence in support of those pleas (see, to that effect, judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission, C‑718/20 P, EU:C:2022:362, paragraph 62).
36      The appellant criticises the General Court, in essence, as having erred in accepting the Commission’s determination of MHTL’s export price in the context of the two additional calculations of the undercutting margin and of the calculation of the underselling margin of MHTL. It considers that Article 2(9) of the basic regulation may be applied by analogy only in cases where the exporting producer’s related entity in the European Union sells a product concerned to independent customers at a level of trade which is further down the sales distribution chain than the sales made by the Union industry.
37      In the present case, it must be noted that, in paragraphs 72 to 76 of the judgment under appeal, the General Court recalled that the obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic regulation, requires a fair comparison to be made
between the price of the product concerned and the price of the like product of the Union industry when sold in the territory of the European Union. The General Court held, in paragraph 75 of the judgment under appeal, that the comparison of those prices at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting and, in paragraphs 104 and 105 of that judgment, that a comparison could not be regarded as made at the same level of trade where the prices compared did not include the same expenses and profits, which are deducted only from the export price when Article 2(9) of the basic regulation is applied.
38      That analysis by the General Court is confirmed by paragraph 99 of the judgment of 12 May 2022, Commission v Hansol Paper (C‑260/20 P, EU:C:2022:370), in which the Court of Justice held that, as the assessment of whether there has been price undercutting is an economically complex issue in respect of which the basic regulation does not lay down any particular methodology, the Commission enjoys a broad discretion in that regard. It follows that, in accordance with the 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), the application, by analogy, of the price construction method referred to in Article 2(9) of the basic regulation in order to assess price undercutting may be considered, provided that that method is consistent with the legal framework laid down by the basic regulation and does not lead to a manifestly incorrect result.
39      In paragraphs 100 to 102 of the judgment of 12 May 2022, Commission v Hansol Paper (C‑260/20 P, EU:C:2022:370), the Court stated that it was necessary to take account of two particular requirements imposed by the basic regulation when calculating price undercutting.
First, Article 3(2) of that regulation requires that that calculation be made by objectively examining the effect of the imports on prices. That requirement itself requires that the comparison of the prices be carried out at the same level of trade of the goods in question. It is only on that condition that (i) the actual effect of the imports on the prices of a like product of the Union industry can properly be taken into account; (ii) the sales of the product in question and the sales of the like product of the Union industry can be considered as having the same ‘reference point’; (iii) the prices of sales of the products in question to the first independent customers can objectively be taken into consideration for the purpose of calculating undercutting; and (iv) the comparison of the prices at the level where competition in the European Union takes place can be relevant. Secondly, it follows from a combined reading of Article 1(1) and Article 3(2) of the basic regulation that the injury must be assessed at the time of the dumped product’s ‘release for free circulation in the Union’. Consequently, the calculation of undercutting must, in principle, be made at the level of the dumped imports.
40      In that case, the Court of Justice considered that it was open to the Commission, in order to ensure an objective comparison of the prices at the level of the first release for free circulation in the European Union of the product concerned, to construct the duty-paid EU border value by deducting SG&A expenses
and a profit margin from the price of resale of the product concerned by the exporter’s related entity to independent customers. That application, by analogy, of Article 2(9) of the basic regulation was within the broad discretion which the Commission enjoyed when implementing Article 3(2) of that regulation and could not therefore be regarded, in itself, as vitiated by a manifest error of assessment (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 105).
41      In the present case, as the Commission correctly submits in paragraph 42 of its response, the same level of trade corresponds to the ex-works price charged by Union producers marketing products to independent customers and to the EU border value of the product concerned. The price of the first resale to an independent customer on the Union market by an exporter’s related selling entity corresponds not to the ex-works level of trade of the like product of the Union industry but to a later level of trade of that product. The price of the sale made by that exporter’s related selling entity to the first independent customer is not the import price but a resale price.
42      In that regard, as is clear from paragraph 39 of the present judgment, the Court has confirmed that, in principle, the undercutting calculation must be made ‘at the level of the dumped imports’, namely at the EU
border, as regards dumped imports. Consequently, in a case where the price at importation is unreliable owing to the relationship between the exporter and its related selling entities in the European Union, the Commission may, as it correctly submits in paragraph 44 of its response, apply Article 2(9) of the basic regulation by analogy in order to determine the export price for the purpose of the price undercutting calculation. Moreover, those considerations correspond, in essence, to those set out in paragraphs 60 to 63 of the judgment under appeal, which have not been challenged by the appellant.
43      It follows from the foregoing that, first, the General Court did not err in law in finding, in paragraph 82 of the judgment under appeal, that, in the first additional calculation of the undercutting margin, in which the Commission deducted the SG&A expenses and profits of the related selling entities of the Union industry, the prices of Union producers and those of exporting producers had been brought to the same level of trade in order to assess the effects on prices pursuant to Article 3(2) of the basic regulation As the Commission submits in paragraph 45 of its response, those prices were therefore intended to be net of the costs of trade in the Union borne by the related selling entities, with the result that the comparison must be regarded as being made at the initial level of trade, when the dumped imports enter into competition with Union producers’ products.
44      Secondly, the General Court also did not err in law in
paragraph 92 of the judgment under appeal.
It follows therefrom that, in the second additional calculation of the price undercutting margin, in which the Commission compared only the price of direct sales made by the Union industry and the export price adjusted pursuant to Article 2(9) of the basic regulation, the Commission had conducted a fair comparison.
The price of direct sales did not include, as the Commission correctly stated in paragraph 46 of its response, any additional marketing costs borne by the related selling entities of the Union producers, whereas the comparable costs borne by the exporter’s related selling entities had been deducted from the resale price pursuant to Article 2(9) of the regulation in order to obtain a reliable EU border price.
45      Thirdly, the appellant’s argument that the calculation of the underselling margin was also incorrect on the ground that the Commission compared a constructed export price billed by MHTL to HAG with the Union industry’s price for direct sales to independent distributors, retailers, wholesalers and large cooperatives is unfounded. As the General Court observed in paragraph 103 of the judgment under appeal, the underselling margin was set using the cost of production of the Union producers and no other marketing costs were added to the price used in the comparison, with the result that the comparison must be regarded as concerning the same level of trade.
46      Fourthly, finally, the Commission correctly submits, in paragraph 48 of its response, that the appellant has not demonstrated that there are differences in price according to the type of customer, be they distributors, retailers, wholesalers and large cooperatives. In recital 132 of the implementing regulation at issue, the Commission found that the customers of Union producers purchased all UAN in bulk and delivered large quantities to their customers. That finding was not contested before the General Court.
47      It follows from the foregoing that the General Court did not err in law in the determination of MHTL’s export price in the context of the two additional calculations of the undercutting margin and of the calculation of the underselling margin of MHTL. Consequently the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
48      The second ground of appeal concerns the assessments made by the General Court in the second sentence of paragraph 69 and in
paragraphs 96 to 99 of the judgment under appeal, in which it declared inadmissible, since they were advanced for the first time only at the stage of the reply, the appellant’s arguments regarding the effects of the error committed by the Commission in establishing the export price on its findings as to price depression and price suppression.
49      The appellant submits that the Commission, in its defence before the General Court, submitted that its error in determining the export price for the purpose of calculating the undercutting and underselling margins did not undermine its findings on injury and causation because it had found that the dumped imports had caused price suppression and price depression in addition to undercutting the Union industry’s prices. In its reply, MHTL challenged the Commission’s findings, submitting that that error had had an effect on the analysis of price depression and price suppression.
50      By those arguments, the appellant merely refutes the ground relied on by the Commission in its defence by setting out the effects of the infringement of the basic regulation that it committed in determining the export price used for the calculation of the undercutting and underselling margins.
51      In any event, the appellant submits that, even if those arguments were considered to constitute a new plea in law, that plea constitutes an amplification of the single plea in law made earlier in the application.
52      The Commission, of the one part, Achema, Grupa Azoty and Grupa Azoty Zakłady Azotowe Puławy, of the other part, contest the merits of the second ground of appeal.
Findings of the Court
53      The second ground of appeal concerns the assessments made by the General Court in the second sentence of paragraph 69 and in paragraphs 96 to 99 of the judgment under appeal, in which it declared inadmissible, since they were advanced for the first time only at the stage of the reply, the appellant’s arguments with regard to the effects of the Commission’s infringement in establishing the export price on the Commission’s findings on price depression and price suppression on the ground that those arguments constituted a new plea in law, which was not based on matters of law or of fact which came to light in the course of the procedure, and did not constitute an amplification of a plea previously made earlier in the original application.
54      It must be borne in mind that, according to Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 46 and the case-law cited).
55      As was held in paragraphs 69 and 96 to 99 of the judgment under appeal, it must be held that the appellant, in the original application initiating proceedings,
in essence
merely referred to the words ‘depression’ or ‘suppression’ without making a specific argument. Accordingly, it was correct in law and without infringing the duty to state reasons that the General Court was able to find that that argument, raised for the first time in the reply, could not be regarded as the amplification of the single plea in law.
56      The appellant’s single plea in law set out in the original application initiating proceedings does not raise the issue of the Commission’s methodology for analysing price suppression and price depression. In fact, in the three parts to that plea, the appellant clearly and solely challenges ‘the Commission’s methodology for the computation of the underselling and undercutting margins’. The Commission’s methodology in its price depression and price suppression analyses was therefore not part of the appellant’s plea in law before the General Court.
57      Admittedly, the appellant claims that the General Court was wrong, in paragraph 96 of the judgment under appeal, to state that ‘the terms “depression” and “suppression” [were]
not mentioned anywhere in the application’.
58      However, while it is true that the terms ‘to depress prices’ and ‘to prevent price increases’ are reproduced in paragraph 44 of the application before the General Court, it must be observed that those terms form part of a citation of Article 3.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103).
Those terms also appear in paragraphs 48 and 49 of the application, where they
form part of a citation or paraphrase of Article 3(3) of the basic regulation.
59      The fact that those terms appeared in the application in the context of a
provision of an agreement or of law that the appellant cited or paraphrased in its entirety does not prove that its single plea in law also related to price suppression or price depression, which was not the subject matter of any specific line of argument in the original application initiating proceedings.
60      It follows from all the foregoing considerations that the second ground of appeal, and therefore the appeal in its entirety, must be dismissed.
Costs
61      Under Article 184(2) of the Rules of Procedure of the Court of Justice, where an appeal is unfounded, the Court is to make a decision as to costs.
62      Under Article 138(1) of those rules, which applies to appeal proceedings pursuant to Articles 184(1) thereof, 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 appellant has been unsuccessful and the Commission has applied for costs to be awarded against it, the appellant must be ordered to pay all the costs of the present appeal.
63      In accordance with Article 140(3) of the Rules of Procedure, which apply to appeal proceedings by virtue of Article 184(4) of those rules, Achema, Grupa Azoty and Grupa Azoty Zakłady Azotowe Puławy, as interveners before the General Court who participated in the written part of the procedure before the Court, shall bear their own costs.
On those grounds, the Court (Ninth Chamber) hereby:
1.      Dismisses the appeal.
2.      Orders Methanol Holdings (Trinidad) Ltd, in addition to bearing its own costs, to pay those incurred by the European Commission.
3.      Orders Achema AB, Grupa Azoty S.A. and Grupa Azoty Zakłady Azotowe Puławy S.A. to bear their own costs.
Bonichot
Rodin
Rossi
Delivered in open court in Luxembourg on 29 February 2024.
A. Calot Escobar
J.‑C. Bonichot
Registrar
Acting President of the Chamber
*      Language of the case: English.