JUDGMENT OF THE COURT (Ninth Chamber)
7 March 2024 (*)
(Appeal – Dumping – Imports of mixtures of urea and ammonium nitrate originating in Russia – Definitive anti-dumping duty – Initiation of an investigation – Sufficient evidence)
In Case C‑725/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 November 2022,
AO Nevinnomysskiy Azot, established in Nevinnomyssk (Russia),
AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’, established in Novomoskovsk (Russia),
represented initially by T. Martin‑Brieu and A. de Moncuit, avocats, and P. Vander Schueren, advocate, and subsequently by E. Gergondet, N. Mizulin, A. de Moncuit and A. Nosowicz, avocats, and P. Vander Schueren, advocate,
appellants,
the other parties to the proceedings being:
European Commission, represented by P. Němečková, G. Luengo and J. Zieliński, acting as Agents,
defendant at first instance,
Fertilizers Europe, established in Brussels (Belgium), represented by M. Hommé and B. O’Connor, avocats,
intervener at first instance,
THE COURT (Ninth Chamber),
composed of O. Spineanu‑Matei, President of the Chamber, S. Rodin (Rapporteur) and L.S. Rossi, Judges,
Advocate General: L. Medina,
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 their appeal, AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ ask the Court of Justice to set aside the judgment of the General Court of the European Union of 14 September 2022, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission (T‑865/19, EU:T:2022:559; ‘the judgment under appeal’), by which the General Court dismissed their 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’).
Legal context
International law
2        By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986‑1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; ‘the anti‑dumping agreement’).
3        Article 2.3 of the anti‑dumping agreement provides:
‘In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of 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 not resold in the condition as imported, on such reasonable basis as the authorities may determine.’
4        Article 2.4 of that agreement reads as follows:
‘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, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. In the cases referred to in paragraph 3, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted under this paragraph. The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.’
5        Under Article 5.3 of the agreement:
‘The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation.’
European Union law
6        Article 2 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’), entitled ‘Determination of dumping’, provides, in paragraphs 9 and 10(k):
‘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 [European] Union frontier level.
The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit.
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. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:
…
(k)      Other factors
An adjustment may also be made for differences in other factors not provided for under points (a) to (j), if it is demonstrated that they affect price comparability as required under this paragraph, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors.’
7        Article 5 of that regulation, entitled ‘Initiation of proceedings’, provides, in paragraphs 1, 3, 6 and 9:
‘1.      Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.
…
2.      A complaint under paragraph 1 shall include evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury. The complaint shall contain such information as is reasonably available to the complainant on the following:
…
3.      The [European] Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.
…
6.      If, in special circumstances, the Commission decides to initiate an investigation without having received a written complaint by, or on behalf of, the Union industry for the initiation of such an investigation, this shall be done on the basis of sufficient evidence of dumping, injury and a causal link, as described in paragraph 2, to justify such initiation. …
…
9.      Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. …’
8        Article 6 of the basic regulation, entitled ‘The investigation’, states in paragraph 1:
‘Following the initiation of proceedings, the Commission, acting in cooperation with the Member States, shall commence an investigation at Union level. Such an investigation shall cover both dumping and injury, and they shall be investigated simultaneously.
For the purpose of a representative finding, an investigation period shall be selected which in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of proceedings.
Information relating to a period subsequent to the investigation period shall, normally, not be taken into account.’
9        Article 7 of that regulation, entitled ‘Provisional measures’, provides in paragraph 2a:
‘When examining whether a duty lower than the margin of dumping would be sufficient to remove injury, the Commission shall take into account whether there are distortions on raw materials with regard to the product concerned.
For the purposes of this paragraph, distortions on raw materials consist of the following measures: dual pricing schemes, export taxes, export surtax, export quota, export prohibition, fiscal tax on exports, licensing requirements, minimum export price, value added tax (VAT) refund reduction or withdrawal, restriction on customs clearance point for exporters, qualified exporters list, domestic market obligation, captive mining if the price of a raw material is significantly lower as compared to prices in the representative international markets.
The Commission is empowered to adopt delegated acts in accordance with Article 23a to amend this Regulation by adding further distortions on raw materials on to the list referred to in the second subparagraph of this paragraph, if the [Organisation for Economic Cooperation and Development (OECD)] “Inventory on export restrictions on industrial raw materials”, or any OECD database which replaces this inventory, identifies other types of measures.
The investigation shall cover any distortion on raw materials identified in the second subparagraph of this paragraph, for the existence of which the Commission has sufficient evidence pursuant to Article 5.
For the purpose of this Regulation, a single raw material, whether unprocessed or processed, including energy, for which a distortion is found, must account for not less than 17% of the cost of production of the product concerned. For the purpose of this calculation, an undistorted price of the raw material as established in representative international markets shall be used.’
10      The implementing regulation at issue was adopted following the initiation by the Commission, on 13 August 2018, of an anti-dumping investigation with regard to imports into the European Union of mixtures of urea and ammonium nitrate (‘UAN’) originating in Russia, Trinidad and Tobago and the United States of America.
11      Point 1.1(2), of that regulation provides:
‘The Commission initiated the investigation following a complaint lodged on 29 June 2018 by Fertilizers Europe (“the complainant”) on behalf of producers representing more than 50% of the total Union production of [UAN]. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.’
Background to the dispute
12      The background to the dispute is set out in paragraphs 2 to 41 of the judgment under appeal and, for the purposes of the present judgment, can be summarised as follows.
13      As a preliminary point, it should be noted that the appellants are part of the EuroChem Group and sell UAN on the Russian market through EuroChem Trading RUS LLC. Export sales of UAN to the European Union are made through an exporter established in Switzerland that resells UAN to EuroChem Agro GmbH, a company established in Germany, which in turn resells that UAN either to independent customers established in the European Union or to related traders in Bulgaria and Spain with a view to subsequent resale.
14      On 13 August 2018, following a complaint, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America (OJ 2018 C 284, p. 9). The product at the centre of the investigation into the dumping at issue and into the injury caused to the Union industry by such dumping was UAN in aqueous or ammoniacal solution that may have additives, falling under CN code 3102 80 00 of the combined nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Implementing Regulation (EU) 2019/1776 of 22 October 2019 (OJ 2019 L 280, p. 1) (‘the product concerned’).
15      That investigation covered the period from 1 July 2017 to 30 June 2018. The examination of trends relevant for the assessment of injury to the Union industry covered the period from 1 January 2015 to 30 June 2018.
16      Interested parties were invited to participate in the investigation. Several of them, including the appellants, submitted written observations.
17      On 20 March 2019, the Commission adopted Implementing Regulation (EU) 2019/455 making imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America subject to registration (OJ 2019 L 79, p. 9).
18      The next day, a disclosure document setting out the Commission’s provisional findings was sent to the appellants.
19      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).
20      On 12 July 2019, the Commission informed the appellants of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of the product concerned originating in, inter alia, Russia.
21      On 8 October 2019, the Commission adopted the implementing regulation at issue.
22      Under that implementing regulation, the definitive anti-dumping duty imposed by the Commission is to be a fixed amount of between EUR 22.24 and EUR 42.47 per tonne, applicable to imports of the product concerned into the European Union produced by the various companies listed in the implementing regulation. The amount of that definitive duty was set for the appellants at EUR 27.77 per tonne of the product concerned.
The procedure before the General Court and the judgment under appeal
23      By application lodged at the Registry of the General Court on 18 December 2019, the appellants brought an action for annulment of the implementing regulation at issue.
24      In support of their action before the General Court, the appellants put forward four pleas in law. The first plea alleged infringement of Article 2(1), (9) and (10) of the basic regulation and manifest errors of assessment in determining the export price and the normal value, as well as infringement of Article 2(3) to (5) of that regulation in determining the ‘ordinary course of trade’ by reference to adjusted costs of production. The second plea alleged infringement of Article 3(2), (3) and (6) of the basic regulation, of the right to sound administration and of the principle of non-discrimination, as well as manifest errors of assessment as regards the analysis of the effects of the dumped imports on prices in the EU market for like products. The third plea alleged infringement of Article 3(7) of the basic regulation, read in conjunction with Article 9(4) thereof, and of the right to sound administration, as well as manifest errors of assessment. The fourth plea alleged infringement of Article 7(2a) of the basic regulation, read in conjunction with Article 9(4) and (5) and Article 18(1), (4) and (5) of that regulation, of the right to sound administration and of the principle of equal treatment, as well as manifest errors of assessment as regards the refusal to apply the lesser duty rule to the appellants’ imports.
25      In the judgment under appeal, the General Court rejected those four pleas and, consequently, dismissed the appellants’ action in its entirety.
26      In particular, as regards the first plea, the General Court, in addressing the first part of that plea, examined Article 2(9) of the basic regulation and concluded that that article did not preclude adjustments being made for costs incurred before importation of the product concerned, inasmuch as those costs are normally borne by the importer. In its consideration of the second part of that plea, the General Court found that since EuroChem Agro – where that related company, established in Germany, did not act as importer – assumed responsibility for the costs of transporting the product concerned to the EU frontier, costs that are normally borne by the importer, as provided for in Article 2(9) of the basic regulation, an adjustment under that provision was justified. In its examination of the third part of the first plea, the General Court held that, in so far as the expenses incurred between importation and resale of the product concerned, including the selling, general and administrative expenses (‘SG&A expenses’) and the profits of the related exporter established in Switzerland referred to in paragraph 13 above and of EuroChem Agro, even in respect of activities that took place before that product’s arrival at the EU frontier, were expenses relating to the final sale within the European Union, those expenses could be adjusted under Article 2(9) of the basic regulation.
27      The General Court rejected the fourth part of the first plea as inadmissible on the ground that the appellants had made a ‘general reference’ to ‘another document’ for the purposes of their arguments and had not substantiated the premiss on which their arguments were based. In any event, the General Court took the view that those arguments had to be rejected as unfounded. In its consideration of the fifth part of the first plea, the General Court rejected the appellants’ argument that the Commission should not have adjusted their costs of production by replacing the natural gas costs actually incurred by them with prices at the border between Germany and the Czech Republic, adjusted for transportation back to Russia.
28      As regards the fourth plea, the General Court held, in the first place, that the appellants had not adduced any evidence to show that the Commission had infringed the right to sound administration. In the second place, the General Court rejected the appellants’ argument that the conditions for not applying the lesser duty rule under Article 7(2a) of the basic regulation were not met. In the third place, the General Court rejected the appellants’ argument that Article 9(5) of the basic regulation requires the lesser duty rule under Article 7(2a) thereof to be applied individually for each exporting producer, to avoid infringing Article 7(2a) and the principle of non-discrimination.
29      In the fourth place, the General Court found that the Commission had not erred in finding that the imports into the European Union from Trinidad and Tobago and the United States were not in a situation comparable to imports from Russia; accordingly, the Commission had not infringed Article 9(5) of the basic regulation. In the fifth place, the General Court rejected the appellants’ argument alleging infringement of Article 18(1) and (4) of the basic regulation.
Forms of order sought by the parties to the appeal
30      The appellants submit that the Court of Justice should:
–        set aside the judgment under appeal;
–        annul the implementing regulation at issue in part relating to the first to fourth parts of the first plea in law raised before the General Court, as well as to the first and fourth parts of the fourth plea in law raised before it, ‘given that the state of the proceedings so permits’;
–        in the alternative, refer the case back to the General Court;
–        order the Commission to pay the costs.
31      The Commission, supported by Fertilizers Europe, contends that the Court of Justice should:
–        dismiss the appeal;
–        order the appellants to pay the costs.
The request to open the oral part of the procedure and for delivery of an Opinion
32      Following notification of the Court of Justice’s decision to proceed to judgment without a hearing and without an Opinion, the appellants submitted a request, by document lodged at the Court Registry on 19 October 2023, for an order opening the oral part of the procedure, pursuant to Article 83 of the Rules of Procedure of the Court of Justice, and for delivery of a ‘focused conclusion’ on the first ground of appeal.
33      In accordance with Article 83 of its Rules of Procedure, the Court of Justice may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court of Justice, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.
34      However, in this instance, the Court of Justice considers that it has all the information necessary to give a ruling and that the case does not have to be decided on the basis of arguments which have not been debated by the interested persons. Lastly, the request for the oral part of the procedure to be reopened referred to in paragraph 32 above does not reveal any new fact which is of such a nature as to be a decisive factor for the decision which the Court of Justice is called upon to give in this case.
35      Furthermore, as regards the request for the delivery of a ‘focused conclusion’, it should be recalled that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. It is sufficient to note that the parties to the proceedings have no right to request the delivery of an Opinion.
36      In those circumstances, having heard the Advocate General, the Court of Justice does not consider it appropriate in this case to order the opening of the oral part of the procedure or the delivery of a ‘focused conclusion’.
The appeal
37      In support of their appeal, the appellants put forward five grounds of appeal, alleging, first, an error of law on the part of the General Court in its interpretation of Article 2(9) of the basic regulation; secondly, an error of law and a misinterpretation of Article 2(10) of that regulation; thirdly, an error of law in the interpretation of Article 5(1), (3), (6) and (9) and Article 7(2a) of that regulation; fourthly, a failure by the General Court to examine the evidence, a distortion of the evidence and an infringement of the obligation to state reasons; and, fifthly, a distortion of the evidence, an error of law and an infringement of the obligation to state reasons.
The first ground of appeal
Arguments of the parties
38      By the first ground of appeal, the appellants claim that it is apparent from Article 2(9) of the basic regulation that, for the construction of the export price under that provision, the Commission may not deduct from the resale price charged to the first independent buyer on the EU market costs and profits not incurred between the importation of the product concerned and the sale of that product to that buyer.
39      In that regard, the appellants submit that it follows from the WTO Panel Report, United States – Anti-dumping measures on stainless steel plate in coils and stainless steel sheet and strip from Korea (WT/DS 179/R), dated 22 December 2000 and adopted by the Dispute Settlement Body (DSB) of the WTO on 1 February 2001 (‘the WTO report on stainless steel’), that, although the phrase ‘incurred between the importation and resale’ within the meaning of Article 2(9) of the basic regulation should not be construed as referring strictly to the period between ‘the importation and resale’ of the product concerned, the fact remains that the costs and profits incurred during the period covered by that phrase should relate to the ‘resale’ and not to the ‘importation’ of that product. Therefore, according to the appellants, Article 2.4 of the anti-dumping agreement and Article 2(9) of the basic regulation should be interpreted as allowing adjustments to the resale price charged to the first independent buyer in order to take into consideration the costs and profits incurred in connection with the ‘resale’. However, those provisions cannot be interpreted as allowing, for adjustment purposes, consideration to be taken of the costs and profits incurred or earned in connection with the ‘importation’.
40      The appellants argue that the General Court therefore erred in law in ruling, in paragraph 98 of the judgment under appeal, that it is not apparent from Article 2(9) of the basic regulation that only the costs between the arrival of the product concerned at the EU frontier and the first resale of that product to an independent buyer should be taken into consideration for the purposes of determining the export price under that provision. Accordingly, the General Court rejected the first part of the first plea in the action on the basis of an incorrect analysis of the object and purpose of that provision, set out in paragraphs 97 to 101 of the judgment under appeal.
41      Furthermore, the appellants maintain that it was on the basis of those erroneous considerations that the General Court found, in paragraphs 105 to 107 of the judgment under appeal, that they had failed to demonstrate that the costs and profits in question could not be regarded as costs normally borne by an importer, and, in consequence, that it also rejected the second and third parts of the first plea in the action, in paragraphs 116 and 117, and paragraphs 126 and 125 of the judgment under appeal.
42      The appellants submit that, in so doing, the General Court made three errors of law.
43      In the first place, the General Court wrongly held that, by adopting Article 2(9) of the basic regulation, the intention of the EU legislature had been to include among the costs for which an adjustment may be made costs which, despite being borne by companies that do not import the product concerned, are normally associated with its importation, since the objective of ensuring the reliability of export prices could be undermined by transactions between companies in the same group which are liable to alter export prices.
44      The appellants submit that, even if that had been the intention of the legislature, which, moreover, was not demonstrated by the General Court, their arguments before that court were that, irrespective of whether those costs had been incurred by an importer or another party, Article 2(9) of the basic regulation provides that an adjustment can only be made for costs and profits incurred ‘between the importation and resale’ of the product concerned. By finding that Article 2(9) allows the adjustment to take into account all intra-group costs and profits associated with the final sale of the product concerned on the EU market, the General Court therefore erred in law.
45      In addition, the appellants state that the WTO report on stainless steel is to be taken as meaning that, when the Commission adjusts the resale price charged to the first independent buyer in order to take into account the costs and profits incurred between the importation and resale of the product concerned, it is not allowed to adjust all intra-group costs and profits relating to the final sale of that product on the EU market, but only those relating to the resale transaction in respect of that product as opposed to the import transaction. In that regard, the appellants challenge the line of reasoning followed by the General Court in paragraphs 98 and 99 of the judgment under appeal, according to which the effectiveness of Article 2(9) of the basic regulation would be undermined if their proposed interpretation of that provision were accepted.
46      Thus, the General Court was wrong to find that there may be cases where costs incurred by intermediaries before importation of the product concerned form part of the export price actually paid, with the result that the appellants’ proposed interpretation would mean that exporting producers could use several related intermediaries established outside the European Union in order artificially ‘to inflate’ export prices. The appellants submit that it is not Article 2(9) of the basic regulation but Article 2(10) thereof which governs adjustments made in order to take account of costs and profits incurred outside the European Union which are unrelated to resale. They conclude that the General Court thus unlawfully broadened the scope of Article 2(9) of the basic regulation, contrary to its objective.
47      In addition, the appellants claim that the General Court supported its interpretation of the second subparagraph of Article 2(9) of the basic regulation by a reference to the third subparagraph of that provision, which mentions the costs ‘normally borne by an importer’. According to the appellants, that reference cannot justify extending the scope of the second subparagraph of Article 2(9) of the basic regulation. Moreover, such an expansive interpretation is not needed to ensure the effectiveness of that provision and has no legal basis in its clear wording. The appellants assert that, although the third subparagraph of Article 2(9) allows an adjustment to be made to take account of the costs normally borne by an importer, the fact remains that such costs must have been incurred ‘between the importation and resale’, as is apparent from the WTO report on stainless steel.
48      In the second place, the appellants claim that the General Court was wrong to rely, in paragraph 102 of the judgment under appeal, on the case-law cited in the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151). They submit that that decision concerns the application of the basic anti-dumping legislation which applied before the anti-dumping agreement came into force and that it stems, in any event, from judgments delivered before the interpretation of Article 2.4 of the anti-dumping agreement provided by the WTO report on stainless steel.
49      According to the appellants, it follows from the case-law of the Court of Justice that, when interpreting the anti-dumping agreement, the EU judicature must take account of the interpretations adopted by the DSB of the WTO. They conclude that, instead of relying on case-law predating the anti-dumping agreement, the General Court should have relied on the WTO report on stainless steel.
50      In the third place, the appellants submit that the General Court erred in law in stating, in paragraph 96 of the judgment under appeal, that the third subparagraph of Article 2(9) of the basic regulation refers both to costs normally borne by an importer and to those which may be borne by any party, either inside or outside the European Union. According to the appellants, no standalone adjustments can be made to take account of the costs which may be borne by any party, either inside or outside the European Union, which are not costs normally borne by an importer.
51      The Commission, supported by Fertilizers Europe, disputes the arguments put forward by the appellants and contends that the first ground of appeal must be rejected.
Findings of the Court
52      It should be noted in the first place that, in paragraphs 94 to 96 of the judgment under appeal, the General Court addressed the appellants’ argument that Article 2(9) of the basic regulation applies only to costs incurred by companies acting as importers.
53      In essence, the General Court considered, first of all, in paragraph 95 of the judgment under appeal, read in the light of paragraph 97 thereof, that the third subparagraph of Article 2(9) of that regulation states that the items for which an adjustment is to be made also include the costs incurred by a party established outside the European Union, in so far as it appears to be associated with the importer or exporter and those costs would normally be borne by an importer; accordingly that provision cannot be limited solely to the adjustment of the costs normally borne by importers and which arose between the time when the product concerned crossed the EU frontier and when it was first resold to an independent buyer, without undermining the provision’s effectiveness.
54      Next, in paragraph 96 of that judgment, the General Court found that it followed from the first subparagraph of Article 2(9) of the basic regulation that that provision refers to the importer or a third party, so that it necessarily includes entities which do not themselves import the products concerned. The General Court also found that the third subparagraph of Article 2(9) of that regulation referred both to costs normally borne by an importer and to those which may be borne by any party, either inside or outside the European Union, where, as the General Court pointed out in paragraph 95 of the judgment under appeal, read in the light of paragraph 97 thereof, it appears to be associated and those costs would normally be borne by an importer. The General Court concluded therefrom that the appellants’ argument that Article 2(9) of the basic regulation referred only to costs borne by importers had to be rejected.
55      In the second place, in paragraphs 97 to 101 of the judgment under appeal, the General Court examined the object and effect of Article 2(9) of the basic regulation. In that regard, the General Court held that, by that provision, the EU legislature had intended to include the costs of companies which do not import the product concerned but which incur costs normally associated with importation, thereby making it possible to respect the contractual relations of economic operators while ensuring that that provision produces its effects vis-à-vis commercial practices whereby costs normally borne by an importer are attributed to a third party. The General Court observed, in essence, that the appellants’ proposed interpretation could have consequences incompatible with the objective of that provision, which is to ensure the reliability of export prices, since exporting producers could use several related intermediaries established outside the European Union in order artificially to increase export prices.
56      In the third place, in paragraphs 102 and 103 of the judgment under appeal, the General Court substantiated its findings by referring to the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151).
57      The appellants’ arguments are not capable of calling into question the line of reasoning followed by the General Court.
58      In that regard, in the first place, concerning the argument based on the WTO report on stainless steel, it should be recalled that, taking account of their nature and structure, the Agreement establishing the WTO and the agreements listed in Annexes 1 to 4 to that agreement are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions (judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 71 and the case-law cited).
59      It is only in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, that the Court of Justice has accepted that it is for the Courts of the European Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of those agreements or a decision of the DSB of the WTO establishing non-compliance with those agreements (judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 74 and the case-law cited).
60      The first such situation is where the European Union intended to give effect to a specific obligation assumed under those agreements, and the second is where the act of the European Union at issue expressly refers to specific provisions of those agreements (judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 75 and the case-law cited).
61      In the present case, it should be noted that the WTO report on stainless steel, on which the appellants rely, concerns the interpretation of Article 2.4 of the anti-dumping agreement, which relates to ‘fair comparison … between the export price and the normal value’.
62      By Article 2(9) of the basic regulation, which does not relate to that comparison but to the construction of the export price, the EU legislature did not intend to give effect to the specific obligations laid down in Article 2.4 of the anti-dumping agreement. Furthermore, Article 2(9) of the basic regulation makes no reference to Article 2.4 of the anti-dumping agreement.
63      Accordingly, it must be held that the WTO report on stainless steel cannot usefully be relied on to challenge the reasoning of the General Court in paragraph 95 of the judgment under appeal which led it to reject the appellants’ argument that only the costs incurred between the arrival of the product concerned at the EU frontier and the first resale of that product to an independent buyer may be taken into consideration for the purposes of constructing the export price.
64      In the second place, the findings set out in paragraphs 99 to 101 of the judgment under appeal must be upheld.
65      First, the objective of Article 2(9) of the basic regulation is, in accordance with the first subparagraph of that provision, to be able to take into consideration a constructed export price at the EU frontier level where, inter alia, it appears that the export price actually paid is unreliable because of, for instance, an association between the exporter and the importer or a third party, so as to provide a reliable value for the purposes of the fair comparison between the export price and the normal value of the like product on the domestic market of the exporting country.
66      Secondly, that objective would not be achieved if an exporting producer could simply structure its sales in such a way as to ensure the involvement, prior to the importation of the product concerned into the European Union, of an intermediary associated with it which would assume responsibility for the costs normally borne by an importer, so as to increase the export price actually paid by the importer. If such costs could not be taken into consideration by means of adjustments, on the ground that they were incurred before importation, it would be impossible to construct a reliable export price in such a situation.
67      In that regard, the General Court was also fully entitled to find, in essence, in paragraphs 95 and 96 of the judgment under appeal, read in the light of paragraph 97 thereof, that it follows from the very wording of the third subparagraph of Article 2(9) of the basic regulation that the items for which an adjustment is to be made under Article 2(9) include the costs incurred by a party established outside the European Union, in so far as it appears to be associated with the importer or exporter and those costs would normally be borne by an importer.
68      In the third place, the appellants’ argument that the General Court based its findings on case-law relating to legislation predating the anti-dumping agreement, cited indirectly, in particular, in paragraph 102 of the judgment under appeal, must be rejected.
69      In that regard, suffice it to note that, as is clear from its wording, that paragraph of the judgment under appeal contains an observation made for the sake of completeness. In addition, in the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151), referred to in that paragraph, the General Court ruled on the interpretation of Article 2(9) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51).
70      Therefore, since the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151), cited in the judgment under appeal, concerns the interpretation of an act adopted in 2009, that is to say, well after the entry into force of the anti-dumping agreement, it cannot be held that the General Court relied on case-law predating that agreement.
71      In the fourth place, the appellants’ argument that the General Court found that Article 2(9) of the basic regulation referred both to costs normally borne by an importer and to those which may be borne by any party, either inside or outside the European Union, is based on a misreading of the judgment under appeal.
72      Thus, as pointed out in paragraphs 53 to 55 above, the General Court carried out a systematic reading of Article 2(9) of the basic regulation and concluded that that provision referred not only to costs borne by importers but also to costs which may be borne by any related party, either inside or outside the European Union, as long as they are costs normally borne by an importer.
73      In so doing, the General Court did not extend the scope of Article 2(9) of the basic regulation, which it interpreted correctly, and it was therefore fully entitled to reject the appellants’ argument that that provision was solely concerned with importers, to the exclusion of related companies which may assume responsibility for costs normally borne by the importer.
74      It follows that the appellants’ first ground of appeal must be rejected as unfounded.
The second ground of appeal
Arguments of the parties
75      By the second ground of appeal, the appellants claim that the General Court, in paragraphs 136 to 144 of the judgment under appeal, was wrong to reject the fourth part of the first plea in the action as inadmissible and in any event unfounded, and also erred in law in interpreting Article 2(10) of the basic regulation.
76      The appellants state that the fourth part of the first plea raised before the General Court alleged infringement by the Commission of Article 2(1) and (10) of the basic regulation, in so far as the Commission had refused their request for an adjustment of the normal value to take account of the SG&A expenses and the profits of EuroChem Trading RUS, based on the mistaken premiss that the appellants and EuroChem Trading RUS constituted a ‘single economic entity’.
77      The appellants submit that it follows from paragraph 136 of the judgment under appeal that, by arguing that the functions of EU trading companies and of EuroChem Trading RUS were the same, they raised, in the body of the application, an essential argument in law, supported by references to annexes demonstrating the similarity of those functions.
78      Accordingly, the appellants submit that the General Court failed to have regard to the case-law where it found, in paragraph 139 of the judgment under appeal, that the appellants’ arguments were not sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action. Moreover, in so doing, the General Court failed to observe the appellants’ right to a court hearing and access to justice, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union.
79      The appellants also submit that the General Court erred in law in finding, in paragraphs 143 and 144 of the judgment under appeal, that their arguments were, in any case, manifestly unfounded. In that regard, the appellants argue, first, that the General Court exceeded the limits of its judicial review by basing its assessment on the Commission’s justifications which do not appear in the implementing regulation at issue.
80      Secondly, the appellants state that the General Court failed to address their actual submission that the concept of ‘single economic entity’ was not governed by Article 2(1) of the basic regulation and that, in any case, the existence of such a ‘single economic entity’ did not preclude an adjustment under Article 2(10) of that regulation.
81      Thirdly, the appellants maintain that the General Court distorted the evidence by finding, in paragraph 144 of the judgment under appeal, that they had not substantiated their arguments. They submit that they demonstrated that the SG&A expenses and profits of EU trading companies and of EuroChem Trading RUS were factors affecting the comparability of domestic and export prices, so that the Commission should have deducted those expenses and profits from the export price for EuroChem Trading RUS.
82      As to the remainder, the appellants submit that the Court of Justice may, after upholding their second ground of appeal, rule on the fourth part of the first plea raised before the General Court, since the state of the proceedings so permits.
83      The Commission, supported by Fertilizers Europe, disputes the arguments put forward by the appellants and contends that the second ground of appeal must be rejected.
Findings of the Court
84      It should be noted that, in paragraphs 136 and 137 of the judgment under appeal, the General Court found that the appellants had merely asserted that they had demonstrated that the SG&A expenses and the profits of EU trading companies and of EuroChem Trading RUS, that are associated with the same selling functions, were factors which affected domestic and export prices and therefore their comparability. The appellants substantiated that assertion by reference to ‘comments on Provisional Regulation, pages 22-23 and Annex 8, Annex A.8’.
85      Thus, the General Court found, in paragraph 138 of the judgment under appeal, that the appellants had resorted to a ‘general reference’ to ‘another document’ other than the application for the purposes of their arguments and had not substantiated the premiss on which those arguments were based.
86      The General Court recalled, in paragraphs 139 and 140 of the judgment under appeal, that Article 76(d) of the Rules of Procedure of the General Court provides that an application is to contain a summary of the pleas in law, citing settled case-law concerning the criteria for determining whether that summary is to be regarded as sufficiently clear and precise.
87      Taking the view that that was not the case here, the General Court rejected, in paragraph 141 of the judgment under appeal, the fourth part of the first plea in the action as inadmissible.
88      For the sake of completeness, the General Court found, in paragraphs 142 to 145 of the judgment under appeal, that the appellants had not substantiated the reasons why an adjustment under Article 2(10)(k) of the basic regulation would have been justified.
89      In that regard, it should be observed that it is necessary, for an action before the General Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law, which must appear in the application itself (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 50 and the case-law cited).
90      In the present case, examination of the file at first instance shows that the General Court was right to find that the appellants’ arguments contained an assertion supported simply by reference to ‘comments on Provisional Regulation, pages 22-23 and Annex 8, Annex A.8’, with the result that the General Court was not able to ascertain from the application the particulars which the appellants sought to rely on to substantiate their submissions.
91      The mere assertion that the appellants had demonstrated that the SG&A expenses and profits of the EU trading companies and of EuroChem Trading RUS, that are associated with the same selling functions, are factors which affect the comparability of domestic and export prices, cannot be regarded as sufficient, for the purposes of the case-law cited in paragraph 89 above, to establish the basic matters of law and fact upon which the appellants rely.
92      It follows that the General Court was fully entitled to find that the fourth part of the first plea in the action was inadmissible.
93      As regards the appellants’ arguments concerning the interpretation of Article 2(9) and Article 2(10)(k) of the basic regulation, it should be noted that the reasoning set out in paragraphs 142 to 146 of the judgment under appeal is set out for the sake of completeness by the General Court in relation to the finding made in paragraph 141 of that judgment.
94      The Court of Justice rejects outright complaints directed against grounds of a judgment of the General Court which are included purely for the sake of completeness, since they cannot lead to its being set aside (judgment of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 106 and the case-law cited).
95      It follows that the second ground of appeal must be rejected, in part, as ineffective and, in part, as unfounded.
The third ground of appeal
Arguments of the parties
96      The appellants submit that, in paragraph 352 of the judgment under appeal, the General Court erred in law in its interpretation of Article 5(1), (3), (6) and (9) and Article 7(2a) of the basic regulation, by rejecting the claim in their fourth plea in the action alleging that the initial complaint did not contain sufficient evidence to justify the initiation of an investigation under Article 7(2a) of the basic regulation.
97      In that regard, in the first place, the appellants submit that, under Article 7(2a) of the basic regulation, an investigation into distortions on raw materials is to cover any distortion on those materials for the existence of which the Commission has sufficient evidence pursuant to Article 5 of that regulation, which provides that an investigation may be initiated either on the basis of a complaint or on the Commission’s own initiative.
98      According to the appellants, in the case of investigations initiated on the basis of a complaint, it is clear from Article 5(3) of the basic regulation that the Commission is under an obligation to examine the sufficiency of the evidence provided in that complaint. Thus, the appellants argue that Article 7(2a) of the basic regulation requires, as a condition for the initiation of an investigation, as provided for in Article 5 thereof, into distortions on raw materials, the existence of sufficient evidence in the complaint if the investigation is initiated on the basis of Article 5(1) of that regulation, or sufficient evidence in the possession of the Commission, in the absence of a complaint, if the investigation is initiated on the basis of Article 5(6) of that regulation.
99      Consequently, the appellants submit, by ruling that an investigation may be initiated under Article 5(1) of the basic regulation irrespective of whether the complaint contains sufficient evidence, the General Court erred in law. Moreover, the appellants state that, since it follows from Article 5(9) of the basic regulation that the Commission is to initiate an investigation where it is apparent that there is sufficient evidence and is to inform the complainant that the complaint has been rejected where insufficient evidence has been presented, the General Court also infringed that provision.
100    The appellants also maintain that the General Court confused two separate legal bases for the initiation of an investigation, namely Article 5(1) of the basic regulation and Article 5(6) thereof. In so doing, the General Court sanctioned the initiation by the Commission of an investigation on the basis of a complaint lodged under Article 5(1) of that regulation, without that complaint containing sufficient evidence as required by Article 5(3) and (9) thereof. In the absence of a complaint, an investigation may be initiated, in special circumstances, only on the Commission’s own initiative, in accordance with Article 5(6) of the basic regulation.
101    In the second place, the appellants submit that, in paragraph 352 of the judgment under appeal, the General Court erred in law in holding that the complainants were not required, under Article 5(2) of the basic regulation, to provide sufficient evidence to initiate an investigation. In that regard, the appellants submit that it follows from a combined reading of Article 5(2) of the basic regulation and Article 5(3) and (6) thereof that a complaint should indeed contain such information as is reasonably available to the complainant and that that information should include sufficient evidence to justify the initiation of an investigation. Therefore, the interpretation adopted by the General Court is contrary to Article 5(2), (3) and (6) of the basic regulation.
102    The appellants also submit that the interpretation of Article 5 of the basic regulation adopted by the General Court is at variance with that adopted by the DSB of the WTO, which took the view that the appropriate legal standard for the purposes of interpreting Article 5.3 of the anti-dumping agreement was the sufficiency of the evidence in the complaint, not the accuracy and adequacy of that evidence.
103    In the third place, the appellants argue that the General Court confused two stages of the investigation, namely the initiation of the investigation, referred to in Article 5 of the basic regulation, and the investigation itself, referred to in Article 6 of that regulation, by implicitly finding that the Commission could supplement the evidence at the stage of the initiation of an investigation. The Commission can supplement such evidence only at the stage of the investigation itself. Consequently, the appellants claim that the General Court infringed Article 5(3) of the basic regulation also in that regard.
104    As to the remainder, since it is not in dispute, according to the appellants, that the complaint which led to the initiation of the investigation in the present case did not contain evidence of a dual pricing scheme in Russia, the appellants submit that the Court of Justice may itself rule on the first part of the fourth plea raised before the General Court.
105    The Commission, supported by Fertilizers Europe, disputes the arguments put forward by the appellants and contends that the third ground of appeal must be rejected.
Findings of the Court of Justice
106    It should be noted that the General Court considered, first of all, in paragraph 350 of the judgment under appeal, that Article 5(2) of the basic regulation provides that the complaint is to contain such information as is reasonably available to the complainant as listed in subparagraphs (a) to (d) of that provision. The General Court concluded that that provision does not require the complainant to adduce sufficient evidence to initiate an investigation.
107    Next, in paragraph 351 of the judgment under appeal, the General Court recalled the wording of Article 5(3) of the basic regulation.
108    Finally, in paragraph 352 of the judgment under appeal, the General Court found that the decision to initiate an investigation does not depend on whether the complaint contains sufficient evidence to justify such initiation, but on whether the evidence available to the Commission is sufficient to justify it. Accordingly, the General Court held that an investigation is initiated on the basis of all the evidence available, including the evidence in the complaint, irrespective of how the matter is presented in that complaint.
109    Those findings are untainted by error.
110    In that regard, it should be noted, first of all, that it follows from Article 5(2) of the basic regulation that the complaint is to contain such information as is reasonably available to the complainant. Next, Article 5(3) states that the Commission is to examine, as far as possible, the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation. Finally, under Article 5(9), the Commission is to initiate an investigation where it is apparent that there is sufficient evidence to justify initiating proceedings.
111    Since Article 5(3) of the basic regulation requires the Commission to examine, as far as possible, the accuracy and adequacy of the evidence provided in a complaint, it necessarily requires the Commission to gather information and evidence which confirm or refute the information in that complaint.
112    Moreover, it does not follow from Article 5(9) of the basic regulation that, when the Commission decides to initiate an investigation, it must establish that there is sufficient evidence for that purpose in the complaint and in the complaint alone. That provision requires only that there be sufficient evidence to justify the initiation of an investigation; it does not specify the source of such evidence.
113    It should also be observed that the appellants’ argument that the interpretation adopted by the General Court confuses the two legal bases for the initiation of an investigation, namely Article 5(1) of the basic regulation and Article 5(6) thereof, cannot succeed.
114    In that regard, suffice it to point out that the condition to be met for an investigation to be initiated, namely that there must be sufficient evidence, is the same irrespective of whether the investigation is initiated on the basis of a complaint or on the Commission’s own initiative, since Article 5(9) of the basic regulation draws no distinction in that respect.
115    It follows that the General Court did not err in law in its interpretation of Article 5 and Article 7(2a) of the basic regulation.
116    As to the remainder, in the first place, concerning the appellants’ arguments relating to the case-law of the DSB of the WTO, as is apparent from paragraphs 58 to 60 above, that case-law cannot be successfully relied on to challenge the General Court’s interpretation of Article 5 of the basic regulation.
117    Article 5 of the basic regulation makes no reference to Article 5.3 of the anti-dumping agreement. In addition, it does not follow from the wording of Article 5 of the basic regulation that, by that provision, the EU legislature intended to give effect to a specific obligation laid down in the anti-dumping agreement.
118    In any event, it must be pointed out that those arguments are based on a misreading of the judgment under appeal.
119    The General Court did not find that an investigation could be initiated without the condition relating to the sufficiency of the evidence provided being met. The General Court held, and rightly so, that the Commission’s decision on the sufficiency of the evidence must be taken not on the sole basis of the evidence provided in the complaint, but on the basis of all the evidence available to the Commission.
120    In the second place, concerning the appellants’ argument that the interpretation adopted by the General Court effectively confuses the two separate stages of the procedure, namely the initiation of the investigation and the investigation itself, the Court rules that that argument must be rejected as inadmissible.
121    In that regard, the appellants fail to explain how the General Court’s finding, in paragraph 352 of the judgment under appeal, that the decision to initiate an investigation under Article 5(1) of the basic regulation must be taken where it is apparent that there is sufficient evidence to justify such initiation, could affect the interpretation of Article 6 of that regulation, which concerns the investigation phase and pursues a different objective, namely the determination of dumping and injury.
122    It follows that the third ground of appeal must be rejected, in part, as inadmissible and, in part, as unfounded.
The fourth ground of appeal
Arguments of the parties
123    The appellants submit that, by finding, in paragraph 354 of the judgment under appeal, that the existence of a dual pricing scheme was apparent from the complaint which led to the initiation of the investigation, the General Court did not address the evidence produced, or, at the very least, distorted it. The appellants also maintain that the General Court did not explain its reasoning on that point.
124    In that regard, the appellants argue, in essence, that, in the first place, the General Court merely referred to the fact that dual pricing was mentioned in the complaint and did not address their argument that that complaint did not contain any evidence that there was dual pricing. The General Court equated a claim that a dual pricing scheme existed with evidence demonstrating its existence, thereby distorting that evidence. The General Court also failed to fulfil its obligation to state reasons in so far as the judgment under appeal does not show that the General Court examined whether such a claim amounted to ‘sufficient evidence’ within the meaning of Article 5(3) of the basic regulation. Nor does it show that the General Court verified whether the Commission had examined the accuracy and adequacy of the evidence provided in the complaint.
125    In the second place, the appellants maintain that the General Court failed to address their argument that there should have been sufficient evidence of the alleged existence of a dual pricing scheme in Russia in the complaint and the Commission ought to have examined the accuracy and adequacy of that evidence, instead of simply endorsing unsubstantiated claims. The General Court confined itself, in paragraph 352 of the judgment under appeal, to stating that an investigation is initiated on the basis of all the evidence available, without examining whether that evidence was proof of a dual pricing scheme or any distortion on raw materials.
126    Furthermore, the appellants assert that if the fourth ground of appeal is upheld, the state of the proceedings permits the Court of Justice to rule on the fourth part of the first plea raised before the General Court.
127    The Commission, supported by Fertilizers Europe, disputes the arguments put forward by the appellants and contends that the fourth ground of appeal must be rejected.
Findings of the Court
128    It should be noted that, in the first place, the General Court rejected, in paragraphs 350 to 352 of the judgment under appeal, the appellants’ argument that evidence sufficient to justify the initiation of an investigation must be found exclusively in the complaint.
129    In the second place, the General Court found, in paragraph 353 of the judgment under appeal, that, in the light of the evidence available to it, the Commission did not make a manifest error of assessment in finding that the price of natural gas represented more than 17% of the cost of production, from the time, in particular, when variable costs represented 33% of that cost, and that the initial complaint indicated that ‘the key production cost [was] natural gas’, or in deciding to initiate an investigation into UAN in respect of imports from Russia.
130    In the third place, the General Court rejected, in paragraphs 354 and 355 of the judgment under appeal, the appellants’ arguments on the absence of an explicit reference in the complaint to Article 7(2a) of the basic regulation and on the Commission’s use of the consolidated version of the complaint, before concluding, in paragraph 356 of that judgment, that the appellants’ arguments relating to the lack of sufficient evidence in the complaint to initiate an investigation under that provision had to be rejected.
131    In that regard, it must be recalled that, in accordance with the Court of Justice’s settled case‑law, the duty incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 64 and the case-law cited).
132    In the present case, it should be pointed out that since the appellants’ arguments are based on the proposition, rejected by the General Court by findings which were unsuccessfully challenged in the third ground of appeal, that the Commission should rely exclusively on the evidence provided in the complaint in order to conclude that the evidence is sufficient, which is the condition for the initiation of an investigation, those arguments cannot succeed. Those findings therefore adequately address the argument put forward by the appellants at first instance that the complaint did not contain evidence of a distortion on raw materials.
133    In any event, it must be held that, by their complaint criticising the General Court for having equated a claim made in the complaint that a dual pricing scheme existed with evidence demonstrating its existence, the appellants are in fact asking the Court of Justice to substitute its own conclusion for that of the General Court, with the result that that complaint is inadmissible at the appeal stage (see, to that effect, judgment of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 52 and the case-law cited).
134    It follows that the fourth ground of appeal must be rejected.
The fifth ground of appeal
Arguments of the parties
135    The appellants submit that, by finding, in paragraph 398 of the judgment under appeal, that the subsidised purchases of natural gas in Trinidad and Tobago did not constitute a ‘dual pricing scheme’ within the meaning of Article 7(2a) of the basic regulation, the General Court distorted the evidence before it, erred in law and infringed its obligation to state reasons.
136    In that regard, the appellants assert that Article 7(2a) of the basic regulation states that the list of distortions on raw materials may be updated based on the Inventory on export restrictions on industrial raw materials drawn up by the OECD. It follows from that inventory that dual pricing is a practice whereby a government applies a different price to the same product depending on whether it is exported or sold on the domestic market. In this case, an investigation was initiated into the existence of a distortion in the price of gas in Russia as a result of a dual pricing scheme. Since the appellants had submitted evidence to the Commission demonstrating that a comparable situation, namely a dual pricing scheme for gas, existed in Trinidad and Tobago, they claimed that the Commission had failed to observe the principle of non-discrimination by initiating an investigation into distortion on raw materials with regard to the Russian Federation and not with regard to the Republic of Trinidad and Tobago.
137    In that regard, the appellants criticise the General Court, first, for having refused to find that the subsidisation of natural gas purchases in Trinidad and Tobago amounted to a ‘distortion’ within the meaning of Article 7(2a) of the basic regulation.
138    Accordingly, the General Court committed an error of law, consisting in misinterpreting Article 7(2a) of the basic regulation, by considering that the subsidisation of natural gas purchases in Trinidad and Tobago was not one of the types of measures included in the exhaustive list of distortions on raw materials established by the second subparagraph of Article 7(2a) of the basic regulation.
139    Secondly, the appellants criticise the General Court for having failed to address their complaint and for having distorted matters, by stating that they had not disputed either the existence or the classification of that subsidisation. According to the appellants, they did argue that the subsidisation of natural gas purchases in Trinidad and Tobago amounted to dual pricing, since all domestic gas prices there are fixed by the State, those prices are non-market based and they are discounted with the aim of specifically promoting production of the product concerned in Trinidad and Tobago, whereas the public undertaking holding the State gas monopoly had exports of natural gas.
140    As to the remainder, the appellants maintain that since the evidence submitted by them demonstrates that there was dual gas pricing in Trinidad and Tobago, the state of the proceedings permits the Court of Justice to rule on the fourth part of the fourth plea raised before the General Court. The appellants also assert that the principle of non-discrimination is of constitutional value, so that a complaint alleging failure to observe that principle cannot be held to be ineffective, as the General Court held when it rejected the fourth part of the fourth plea.
141    The Commission, supported by Fertilizers Europe, disputes the arguments put forward by the appellants and contends that the fifth ground of appeal must be rejected.
Findings of the Court
142    It should be noted that the General Court rejected the appellants’ argument that the investigation was discriminatory in paragraphs 398 to 400 of the judgment under appeal, taking the view that, even assuming that the appellants had an interest in relying on such an argument in view of the possible lack of consequences for the decision as far as they were concerned, that argument was unfounded, since the Commission had correctly stated that the schemes in force in Trinidad and Tobago and in the United States were not covered by the exhaustive list set out in Article 7(2a) of the basic regulation.
143    The General Court examined the appellants’ argument relating to the existence of a distortion on gas in Trinidad and Tobago and reached the conclusion, in paragraph 400 of the judgment under appeal, that imports into the European Union from Trinidad and Tobago were not in a situation comparable to imports from Russia.
144    In that regard, the General Court found that the alleged distortions consisted of subsidies to UAN producers in Trinidad and Tobago for their gas purchases and that the subsidisation of raw materials was not one of the types of measures included in the exhaustive list of measures considered to be distortions on raw materials, established by the second subparagraph of Article 7(2a) of the basic regulation.
145    That provision contains an exhaustive list of distortions on raw materials, including dual pricing schemes, making it clear that such distortions must result in the price of the raw material being significantly lower as compared to prices in the representative international markets.
146    As the Commission rightly pointed out, the appellants’ arguments before the General Court cannot be regarded as alleging that the domestic subsidies in Trinidad and Tobago amounted to a dual pricing scheme like the one in place in Russia. The existence of subsidies does not necessarily mean that domestic prices are lower than export prices, since the level of the latter depends on the specific conditions on the international markets.
147    Moreover, inasmuch as the appellants’ arguments seek to have the Court of Justice substitute its own conclusion for that of the General Court, they must be rejected as inadmissible, in accordance with the settled case-law cited in paragraph 133 above.
148    Lastly, in so far as the appellants allege distortion, suffice it to note that it transpires from the context that, by stating, in paragraph 398 of the judgment under appeal, that the appellants had not disputed either the existence or the classification of the subsidisation at issue, the General Court was referring not to their arguments in relation to Article 7(2a) of the basic regulation, but, in absolute terms, to the nature of the measures in Trinidad and Tobago, a nature which the appellants in fact acknowledged by claiming that the subsidisation at issue amounted to a dual pricing scheme, within the meaning of that provision.
149    The Court holds that the fifth ground of appeal must be rejected.
150    In the light of all the foregoing considerations, the appeal must be dismissed.
Costs
151    Under Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 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.
152    In the present case, since the appellants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by Fertilizers Europe and by the Commission, in accordance with the forms of order sought by them.
On those grounds, the Court (Ninth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ to bear their own costs and to pay those incurred by Fertilizers Europe and by the European Commission.
Spineanu‑Matei
Rodin
Rossi
Delivered in open court in Luxembourg on 7 March 2024.
A. Calot Escobar
O. Spineanu‑Matei
Registrar
President of the Chamber
*      Language of the case: English.