JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
11 July 2017  (*)
(Dumping — Imports of certain stainless steel wires originating in India — Determination of the cost of production — Selling, General and Administrative costs — Obligation to state reasons — Injury — Causal link — Complaint — Opening of the investigation — Manifest error of assessment)
In Case T‑67/14,
Viraj Profiles Ltd, established in Maharashtra (India), represented by V. Akritidis and Y. Melin, lawyers,
applicant,
v
Council of the European Union, represented initially by B. Driessen, and subsequently by H. Marcos Fraile, acting as Agents, assisted by R. Bierwagen, C. Hipp and D. Reich, lawyers,
defendant,
supported by
European Commission, represented by J.-F. Brakeland and A. Stobiecka-Kuik, acting as Agents,
intervener,
ACTION pursuant to Article 263 TFEU for annulment of Council Implementing Regulation (EU) No 1106/2013 of 5 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain stainless steel wires originating in India (OJ 2013 L 298, p. 1), in so far as it concerns the applicant
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Ulloa Rubio and A. Marcoulli, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 13 January 2017,
gives the following
Judgment
Background to the dispute
1        The applicant, Viraj Profiles Ltd, is a company which manufactures various stainless steel products. It produces and exports to the European Union, in particular, stainless steel wires.
2        Following a complaint lodged on 28 June 2012 by the European Confederation of Iron and Steel Industries (Eurofer) (‘the complaint of 28 June 2012’), the European Commission initiated an anti-dumping proceeding concerning imports into the European Union of certain stainless steel wires originating in India, in accordance with Article 5 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, ‘the basic regulation’).
3        The investigation of dumping and injury covered the period from 1 April 2011 to 31 March 2012 (‘the investigation period’). The examination of trends relevant for the injury analysis covered the period from 1 January 2009 to 31 March 2012 (‘the period considered’).
4        Following the initiation of the investigation, the Commission sent the applicant the anti-dumping questionnaire. The applicant sent its response to the questionnaire on 12 November 2012 and lodged fresh observations on 26 November 2012.
5        Between 7 and 9 January 2013, a verification was carried out at the applicant’s premises, during which it was established that the costs stated in the applicant’s response to the questionnaire were not consistent and could not be reconciled with the costs reported in its internal accounting system.
6        By letter of 15 February 2013, and at a hearing on 19 February 2013, the applicant provided further information on its internal accounting system. It stated that that system contained certain errors, in particular as regards the quantities of raw materials used, which explained the differences between the costs reported in the system in question and those stated in the reply to the questionnaire.
7        By letter of 1 March 2013, the Commission informed the applicant that some of the information provided in the reply to the questionnaire, in particular that relating to the cost of goods sold, was not reliable, and that it therefore intended to apply Article 18 of the basic regulation and to make its findings on the basis of the facts available.
8        On 8 March 2013, the applicant was heard in respect of the inconsistencies identified during the verification visit and the Commission’s intention to apply Article 18 of the basic regulation. The applicant pointed out that detailed worksheets reconciling the data provided in the reply to the questionnaire with those reported in its internal accounting system had been supplied to the Commission during the verification visit.
9        By Regulation (EU) No 418/2013 of 3 May 2013 imposing a provisional anti-dumping duty on imports of certain stainless steel wires originating in India (OJ 2013 L 126, p. 1; ‘the provisional regulation’), the Commission imposed a provisional anti-dumping duty on imports of certain stainless steel wires originating in India.
10      As regards the calculation of the applicant’s costs of production, the Commission took the view that, in the light of the fact that it had not been possible to establish during the verification visit a link between the costs tables specifically prepared for the investigation and the data contained in the internal accounting system, it was necessary to use the information set out in the applicant’s accounting system, in accordance with Article 18 of the basic regulation. Consequently, the Commission provisionally adjusted the cost data provided by the applicant in the light of the information available in its internal accounting system.
11      As regards the injury, the Commission considered that the EU industry had not fully benefited from the increase in consumption during the period considered and concluded that the increase in dumped products from India at prices constantly undercutting those of the EU industry had played a key part in the material injury suffered by the EU industry. In addition, it considered that no external factor had been such as to break the causal link established between the dumped imports from India and the injury suffered by the EU industry. In particular, as regards the Chinese imports, the Commission emphasised that they belonged to a different range and were not in direct competition with the products manufactured by the EU industry or the products of Indian origin.
12      The rate of anti-dumping duty imposed on the applicant’s exports by the provisional regulation was 24.4%.
13      On 8 May 2013, the Commission informed the applicant of the essential facts and considerations on the basis of which it had decided to impose a provisional anti-dumping duty (‘the provisional findings’).
14      By email of 24 May 2013, the applicant requested additional clarifications concerning the provisional findings and, in particular, the calculations relating to the dumping margin.
15      On 27 May 2013, at a meeting with the applicant, the Commission provided explanations concerning the calculations made and the data taken into account in the context of the provisional findings.
16      On 10 June 2013, the applicant submitted comments on the provisional findings. In particular, it compared the figures for the costs reported in its internal accounting system with those given in the reply to the questionnaire on the basis of the documents provided to the Commission during the verification visit.
17      On 14 August 2013, the Commission informed the applicant of the essential facts and considerations on the basis of which it was proposed to impose a definitive anti-dumping duty on imports of certain stainless steel wires originating in India (‘the definitive findings’).
18      The definitive findings provide, inter alia, as follows:
‘[A]t a later stage following the provisional measures, the [applicant] provided a reconciliation between the internally reported divisional cost figures and the questionnaire reply. On that basis, and having regard to the evidence collected during the on-spot visit, certain manufacturing costs originally reported by that [applicant] in its questionnaire reply could then be accepted ... However, on the basis of the evidence at hand, the allocation of certain costs such as overheads and finance costs reported by the [applicant] in its questionnaire reply could not be considered as reliable for the purpose of the investigation. The Commission considered that these costs should be allocated based on the total ... turnover [of the applicant] and cost of goods sold in accordance with Article 2(5) of the basic regulation. Based on the above, most of the costs reported in the questionnaire reply could be accepted and the turnover allocation was agreed by the [applicant] at the definitive stage of the investigation. It is thus considered that Article 18 of the basic regulation should no longer apply to establish the dumping margin of [the applicant].’
19      According to the methodology employed by the Commission in its definitive findings, the costs of production (‘the COP’) reported by the applicant, consisting of the costs of manufacture (‘the COM’) and of the sales, general and administrative costs (‘the SGA costs’), should be recalculated by adding to the COM 2% of the turnover by way of ‘other costs’ and 6.32% of the turnover as ‘finance costs’. In comparing the COP as thus adjusted, consisting of the COM plus 8.32% of turnover, and the COM reported by the applicant in its reply to the questionnaire, the Commission found a difference of 13.9% and therefore adjusted upwards the figures reported by the applicant. On the basis of that method of calculating the dumping margin, the Commission established the rate of anti-dumping duty at 10.7% in the definitive findings.
20      As regards the injury suffered by the EU industry and the causal link between that injury and imports from India, the Commission maintained the findings it made in the provisional regulation. In particular, it confirmed that Chinese imports were not such as to break the causal link in question. In that regard, the Commission stated that the volume of imports from China was much lower than the volume of imports from India during the period considered and that the price of those imports remained above the price of the imports from India during the majority of that period.
21      On 28 August 2013, the applicant submitted its comments on the definitive findings. It agreed with the method used by the Commission but pointed to certain errors in the application of that method to its own data, which caused the Commission to make an excessive upward adjustment of the COP reported in its reply to the questionnaire. The applicant maintained, first, that the COM and the COP taken into account by the Commission in its calculation are incorrect in that they do not correspond to the figures reported in the reply to the questionnaire. Secondly, the 2% and 6.32% of turnover added to the COM as ‘other costs’ and ‘finance costs’, respectively, include certain costs which were already taken into account in the COM and which should therefore have been removed before those items were expressed as percentages of turnover. Furthermore, the Commission ought to have deducted credit costs, bank charges and losses on foreign currency transactions and conversions. Thirdly, the SGA costs initially provided were taken into account twice by the Commission in its calculation in that they were added to the reported COP, which already included an amount for the SGA costs. The applicant maintains that, if those errors were corrected, the difference between the COP reported in its reply to the questionnaire and the COP revised according to the methodology used by the Commission would be only 4.78%. In its comments, the applicant also disputed the Commission’s evaluation, in its definitive findings, of the injury and of the causal link, maintaining that Chinese imports had contributed significantly to the injury suffered by the EU industry.
22      On 4 September 2013, the applicant was heard by the Commission in the presence of the hearing officer of the Directorate-General for Trade.
23      On 10 September 2013, in response to the applicant’s comments on the definitive findings, the Commission sent the applicant an additional disclosure stating that the rate of the definitive anti-dumping duty applicable to the applicant had been revised and reduced from 10.7% to 6.8%. In that additional disclosure, the Commission explained that the level of the dumping margin had fallen after it had revised the packaging costs, avoided double counting of the SGA costs, and slightly reduced the upward adjustment of the COM from 13.89% to 13.82% by deducting the bank charges from the costs. On the other hand, the Commission refused to deduct the other costs from the SGA costs — which, according to the applicant, should also have been deducted — taking the view that there was no reason to consider that those costs had already been taken into account.
24      On 5 November 2013, the Council of the European Union adopted Implementing Regulation (EU) No 1106/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain stainless steel wires originating in India (OJ 2013 L 298, p. 1; ‘the contested regulation’).
25      Under Article 1 of the contested regulation, the anti-dumping duty established in respect of the applicant was 6.8%.
Procedure and forms of order sought
26      By application lodged at the Court Registry on 1 February 2014, the applicant brought the present action.
27      By document lodged at the Court Registry on 19 May 2014, the Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the Council.
28      By order of 24 June 2014, the President of the Sixth Chamber of the Court granted that leave to intervene. The Commission lodged its statement in intervention, and the applicant its observations on that statement, within the prescribed periods.
29      By decision of the President of the General Court, the present case was assigned to a new Judge-Rapporteur sitting in the Seventh Chamber.
30      In the context of the measures of organisation of procedure, the Court invited the applicant and the Council to reply in writing to a number of questions and asked the Council to produce a document. The parties complied with the Court’s requests within the prescribed periods. Subsequently, the Court invited the applicant and the Council to reply to other questions, which were answered at the hearing.
31      The applicant claims that the Court should:
–        annul the contested regulation in so far as it concerns the applicant;
–        order the Council and the Commission to pay the costs.
32      The Council, supported by the Commission, contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
33      In support of its action, the applicant puts forward three pleas in law. The first plea alleges manifest errors in the calculation of the cost of production, resulting in infringement of Article 2(1), (3) to (6), (11) and (12) of the basic regulation, and breach of the obligation to state reasons. The second plea alleges an error in the examination of the causal link, contrary to Article 3(6) and (7) of the basic regulation. The third plea alleges infringement of Article 5(2), (3) and (7) and of Article 9(5) of the basic regulation, in that the institutions did not examine the accuracy or the sufficiency of the evidence in the complaint relating to the impact of the Chinese imports, so that the anti-dumping duty was imposed following an investigation that had been unlawfully initiated.
34      The Court considers that the second and third pleas in law, in which the applicant disputes, in general, the imposition of an anti-dumping duty on imports from India, should be examined first of all. In the event that the second and third pleas are rejected, it will be necessary to examine, subsequently, the first plea in law, by which the applicant challenges the application of the method used to calculate the anti-dumping duty applicable to it.
The second plea in law, alleging an error in the examination of the causal link, contrary to Article 3(6) and (7) of the basic regulation.
35      The applicant submits that the assessment of the causal link between Indian imports and the injury suffered by the EU industry is vitiated by manifest errors of assessment, and that the institutions therefore infringed Article 3(6) and (7) of the basic regulation. In essence, it raises two complaints in support of that claim.
36      First, the applicant claims that it cannot be concluded that the injury caused to the EU industry is the consequence of dumped imports from India, since the increase in Indian exports to the European Union coincides with an improvement of the situation of the EU industry.
37      Secondly, the applicant maintains that the institutions did not properly evaluate the impact of the Chinese imports on the EU industry.
38      The Council disputes the applicant’s arguments.
39      It should be borne in mind, first of all, that Article 1(1) of the basic regulation provides that ‘[a]n anti-dumping duty may be applied to any dumped product whose release for free circulation in the [Union] causes injury’. According to Article 3(2) of that regulation, the assessment of the existence of injury is based on positive evidence and involves an objective examination, in particular of the volume of imports of the dumped products and of the consequent impact of those imports on the EU industry. With respect to the assessment of that impact, Article 3(5) of the basic regulation provides that it must be based on the evaluation of all relevant economic factors and indices having a bearing on the state of the EU industry.
40      Next, it is apparent from Article 3(6) of the basic regulation that the EU institutions must demonstrate that the dumped imports are causing significant injury to the EU industry, owing to their volume and price. However, that analysis, known as the ‘attribution analysis’, is not sufficient to conclude that there was a causal link between the dumped imports and the injury suffered by the EU industry. It is apparent from Article 3(7) of the basic regulation that those institutions must also examine all other known factors which are causing injury to the EU industry at the same time as the dumped imports and, moreover, ensure that the injury caused by those other factors is not attributed to the dumped imports. These other factors, examined in the ‘non-attribution analysis’, include the volume and price of imports that were not subject to dumping.
41      Therefore, it is for the institutions to establish whether those other factors were not such as to break the causal link between the imports in question and the injury suffered by EU industry (see, to that effect, judgments of 14 July 1995, Koyo Seiko v Council, T‑166/94, EU:T:1995:140, paragraphs 79, 81 and 82, and of 29 January 1998, Sinochem v Council, T‑97/95, EU:T:1998:9, paragraph 98).
42      Finally, it is settled case-law that the question whether the EU industry has suffered injury and, if so, whether that injury is attributable to the dumped imports and whether other known factors contributed to the injury to EU industry involves the assessment of complex economic matters in respect of which the institutions enjoy a broad discretion. Consequently, review by the Courts of the European Union of the assessments made by the institutions must be confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested measure is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers (see, to that effect, judgments of 14 March 2007, Aluminium Silicon Mill Products v Council, T‑107/04, EU:T:2007:85, paragraph 71, and of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 120).
43      It is in the light of those considerations that it is appropriate to assess the applicant’s complaints concerning, on the one hand, the absence of a causal link between the injury suffered by the EU industry and the dumped imports from India, and, on the other, the failure to take account of the impact of the Chinese imports on that injury.
The complaint alleging that there was no causal link between the injury suffered by the EU industry and the dumped imports from India
44      The applicant submits that the imports from India were not able to cause injury to the EU industry since, parallel to the increase in imports, several indicators improved during the period considered.
45      As a preliminary point, it should be noted that, in challenging the existence of a causal link between the imports from India and the injury caused to the EU industry, the applicant also appears to dispute the existence of such injury. The applicant maintains that the main economic indices affecting the state of the EU industry were much better at the end of the period considered, when imports from India were at their highest, than at the beginning of that period. Accordingly, although the applicant relies only on Article 3(6) and (7) of the basic regulation, relating to the causal link between the dumped imports and the injury suffered by the EU industry, it must be held that it also calls into question the assessment made by the institutions under Article 3(2) of the basic regulation establishing the existence of injury.
46      In that regard, it is clear from the contested regulation, and in particular recitals 67 to 83, that the institutions carried out a detailed examination of the volume of dumped imports and of the impact of those imports on the EU industry, in accordance with Article 3(2) of the basic regulation. They concluded that the EU industry had suffered material injury. Moreover, as regards the causal link, as is apparent from recitals 107 to 110 of the provisional regulation and recital 85 of the contested regulation, the institutions concluded that the surge of dumped imports from India at prices constantly undercutting those of the EU industry had had a determining role in the material injury suffered by the Union industry.
47      The institutions found that the volume of imports from India increased by 110% during the period considered and that the market share of those imports had increased by 40% during the same period. That significant increase in the volume and market share of Indian imports could, in the institutions’ view, be explained by the lower prices of those imports compared with the prices of the products of the EU industry during the period considered.
48      With regard to the economic situation of the Union, the assessments made in recitals 78 to 105 of the provisional regulation were confirmed in the contested regulation. It is apparent from those recitals that the EU industry has not fully benefited from the increase in EU consumption. In particular, the institutions found, first of all, that the market share of the Union industry had decreased by 4.7% during the period considered, despite the constant increase in consumption. Furthermore, although some injury indicators, such as the production and sales volumes of EU industry, improved considerably between 2009 and 2010 in the context of a booming market, those indicators stagnated as of 2010. Finally, with regard to the indicators relating to the financial performance of the EU industry, the institutions took the view that although profitability had admittedly increased during the period considered, profit levels had remained far below a reasonable level of profitability for the steel sector because of the price pressure exerted by the dumped imports. According to the institutions, changes in profitability and cash flow — which, after improving in 2010, decreased between 2011 and the investigation period — thus restricted the ability of EU producers to invest in their activities and undermined their development.
49      To the extent that the weakness in the situation of the EU industry coincided with the increase in the volume and market share of the dumped imports from India, it was concluded that those imports had had a decisive impact on the material injury suffered by the EU industry.
50      The Court considers that the arguments put forward by the applicant do not call into question the conclusions adopted by the Council as regards the injury suffered by the EU industry and the causal link between that injury and the dumped imports from India.
51      First of all, it should be noted that, although the examination by the institutions must lead to the finding that the injury to the EU industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend (judgment of 25 October 2011, CHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 114).
52      Moreover, the mere fact that certain injury factors improved during the period considered does not mean that the EU industry does not suffer material injury (see, to that effect, judgment of 30 March 2000, Miwon v Council, T‑51/96, EU:T:2000:92, paragraph 105).
53      Consequently, in the present case, the mere fact that certain factors improved during the period considered does not call into question the Council’s conclusions. It is apparent from recital 85 of the contested regulation that that improvement was only relative in so far as it did not reflect the increase in consumption within the European Union during that period.
54      Secondly, it should be noted that, in a dispute concerning the overall assessment of injury, an applicant cannot merely propose its interpretation of the various economic factors but must state the reasons for which the Council should have reached a different conclusion on injury on the basis of those factors (see, to that effect, judgment of 30 March 2000, Miwon v Council, T‑51/96, EU:T:2000:92, paragraph 103).
55      In the present case, the applicant did not call into question any of the factual findings or the figures contained in the contested regulation. Moreover, it merely indicated that the trend relating to certain injury factors had been positive. However, it did not demonstrate in any way that the Council had made a manifest error of assessment in concluding, in recital 78 of the contested regulation, that, although following a positive trend or having remained stable, certain injury factors had not followed a satisfactory trend in view of the steady increase in EU consumption and that the EU industry’s recovery after 2009 had therefore been slowed down by dumped imports.
56      Accordingly, the complaint that the dumped imports from India did not cause injury to the Union industry must be rejected.
The complaint alleging the failure to take account of the impact of Chinese imports on the injury suffered by the Union industry
57      The applicant submits that the finding in the contested regulation that Chinese imports did not contribute to the injury suffered by the EU industry and were not such as to break the causal link between that injury and imports from India is based on manifest errors of assessment.
58      In that regard, first, it states that imports of the product concerned from China into the higher end of the market, consisting of high-end products, almost tripled during the period considered and that those imports accounted for 71% of all imports of the product concerned from China during the investigation period. Accordingly, the institutions were wrong to take the view that Chinese imports made their way into the lower end of the market, consisting of low-end products, and that Chinese products did not therefore compete with Indian or EU products.
59      Secondly, the prices of Chinese products constantly fell in comparison with the prices of Indian products during the period considered and were lower than Indian prices throughout the investigation period. Although, in the year following the investigation period, prices for Chinese products were once again higher than prices for Indian products, the applicant considers that that fact cannot be taken into account for the purpose of assessing the impact of Chinese imports on the injury to the Union.
60      Thirdly, the institutions placed too much emphasis on the factor relating to the volumes of imports from China and India respectively. According to the applicant, the institutions did not take account of the downward price trend or the upward trend in the volume of Chinese imports in the higher end of the market. Moreover, they did not examine the impact of Chinese imports in the lower end of the market on the injury suffered by the EU industry. In that respect, the applicant states in particular that the Union producers could have started to produce in that market segment but did not do so, despite the existence of unused capacity, because of the presence of Chinese imports in that segment.
61      It should be recalled that, according to case-law, responsibility for injury may be attributed to the imports considered even if their effects are merely part of more extensive injury attributable to other factors (judgment of 5 October 1988, Canon and Others v Council, 277/85 and 300/85, EU:C:1988:467, paragraph 62). The possibility that injury may be caused simultaneously by several factors, each of which taken in isolation amounts to the cause of material injury, cannot therefore be excluded from the outset (see, by analogy, judgment of 4 October 2006, Moser Baer India v Council, T‑300/03, EU:T:2006:289, paragraph 237).
62      In that regard, it is for the institutions to ascertain whether the effects of those other factors were such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Union industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports (judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 24).
63      However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the Union industry can consequently be established (judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 25).
64      In addition, it is for the persons pleading the illegality of an anti-dumping regulation to adduce arguments and evidence showing that factors other than those relating to the imports could have been so important as to call into question the existence of the causal link between the injury suffered by the Union industry and the dumped imports (judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 42; see, to that effect, judgment of 19 December 2013 in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 28).
65      In the present case, it is apparent from recitals 87 to 97 of the contested regulation that the institutions examined the impact of the Chinese imports on the injury suffered by the EU industry. The parties nonetheless took the view, as is apparent from recital 113 of the provisional regulation and recital 97 of the contested regulation, that the possible impact of the imports from China on the injury suffered by the Union industry had not been significant. They therefore concluded that those imports could not have affected the situation of the Union industry to the point of breaking the causal link between the dumped imports from India and the injury suffered by the Union industry.
66      It is therefore appropriate to examine whether the institutions made a manifest error of assessment in considering that, despite Chinese imports, the injury caused by the dumped Indian imports remained significant, so that the causal link between that injury and the imports from India was not broken.
67      First, as regards the applicant’s argument that the institutions incorrectly ruled out any impact of the Chinese imports on the injury suffered by the EU industry on the ground that the range of products represented by the Chinese imports was different from that represented by the Union industry or Indian imports, it must be held that it is based on a misreading of the contested regulation. Although it is true that, at the provisional regulation stage, it was considered that the Chinese products were not in direct competition with the products manufactured by the Union industry or those originating in India, it is apparent from the contested regulation and, in particular, recitals 94 and 95 of that regulation, that, at the final stage, the institutions examined the impact of the Chinese imports in the higher end of the market and did not, therefore, rule out the existence of competition between the Chinese products and the products of the Union industry or those originating in India in that market segment.
68      Secondly, the applicant does not dispute the conclusion of the inquiry, set out in recital 93 of the contested regulation, that both the Union industry and Indian producers were mainly competing in the higher end of the market, where prices could be up to four times higher than prices in the lower end.
69      As regards that market segment, it is clear from recitals 94 and 96 of the contested regulation that, for most of the period considered, the average price of Chinese imports remained higher than that of the dumped Indian imports and that, at any time during that period, the volume of Chinese imports had remained well below that of the Indian imports. The institutions accordingly concluded that the Chinese exports could not have had a significant impact on the products sold by the Union industry.
70      The Court considers that the applicant’s arguments do not call the institutions’ conclusion into question.
71      On the one hand, as regards the prices of Chinese imports, it is apparent from recitals 94 and 95 of the contested regulation that those prices were lower than those of the Indian imports only during the investigation period. It cannot therefore be held, as the applicant asserts, that it was the prices of Chinese imports which caused prices to be undercut during the whole of the period considered.
72      Moreover, as was pointed out in paragraph 61 above, it cannot be excluded from the outset that material injury flows from imports from various countries. In so far as, in the present case, the applicant does not dispute the fact that the Indian imports held a large market share, that their prices were lower than the prices of the products of the Union industry and that they competed with those products, the existence of Chinese imports at lower prices during the investigation period does not preclude material injury having been caused to the Union industry by the dumped Indian imports.
73      On the other hand, as regards the volume of imports from China, the institutions stated, in recital 96 of the contested regulation, that they did not amount to even half the volume of imports from India. In addition, the market share of Chinese imports remained significantly lower than that of Indian imports. It is apparent from recitals 70 and 89 of the contested regulation and from the table relating to imports from other third countries in the provisional regulation that the market share of Chinese imports increased by 2.1 percentage points during the period considered to reach 8.3% during the investigation period, while the market share of Indian imports increased by 4.9 percentage points to 16.9% over the same period.
74      Thirdly, as regards, in particular, the lower end of the market, recital 92 of the contested regulation indicates that Chinese imports in that market segment were concentrated in the United Kingdom, where the Union industry had virtually no production activity.
75      It is true that the lack of production in the United Kingdom does not preclude injury being attributed to imports from China. As is apparent from footnote 10 in recital 93 of the contested regulation, the Union industry and the Indian exporting producers are also present in the lower end of the market. Furthermore, it is apparent from recital 15 of the contested regulation that both the products in the lower end of the market and those in the upper end of the market fall within the definition of the product concerned. Chinese imports in the lower end of the market, although concentrated in the United Kingdom, could, therefore, have an impact on the Union industry since, on the one hand, as noted by the applicants in the reply, those products could subsequently be re-exported to another part of the Union where the product in question would be produced on a larger scale and, on the other, sales to the United Kingdom from the other Member States could decrease in favour of Chinese imports.
76      In the present case, however, the error of the institutions with respect to the reason chosen to justify the absence of an impact of Chinese imports on the Union industry in the lower end of the market is not such as to have an impact on the lawfulness of the contested regulation since, in accordance with paragraph 64 above, it was for the applicant to establish that the Chinese imports in the lower end of the market were such as to call into question the existence of the causal link between the injury suffered by the Union industry and the Indian imports. No evidence has been adduced of any export of the product concerned in the lower end of the United Kingdom market to other EU Member States or of reduced sales of that product in the United Kingdom by the producers of other Member States.
77      With regard to the applicant’s argument that the Union producers could have started to produce in the lower end of the market but did not do so, despite the existence of unused capacity, as a result of the presence of Chinese imports in that market segment, it should be noted that the applicant does not submit any evidence capable of supporting its argument.
78      Fourthly, in its reply to the Commission’s statement in intervention, the applicant submits that the Chinese imports were dumped and claims that the institutions failed to examine that question.
79      In that regard, it must be held that, contrary to the applicant’s submissions, the question of the possible dumping of Chinese imports was examined by the institutions. The institutions concluded, however, as is clear from recital 88 of the contested regulation, that there was no evidence of dumping causing injury to the Union industry which could have justified the opening of an anti-dumping investigation on imports originating in China.
80      Furthermore, the applicant has not submitted any evidence capable of calling into question the conclusion reached in recital 88 of the contested regulation. Even if the prices of imports from China are lower than the normal value in an analogue country, that fact is not sufficient to establish that Chinese imports caused injury to the Union industry nor, accordingly, that those imports were so significant as to call into question the existence of a causal link between the injury suffered by the Union industry and the Indian imports.
81      In the light of the foregoing, it must be concluded that the applicant has not demonstrated that the institutions made a manifest error of assessment in finding that, despite the Chinese imports, the injury caused by the Indian imports was significant and that the causal link between those Indian imports and the injury suffered by the Union industry could therefore be established.
82      The second ground of appeal must therefore be rejected as unfounded.
The third plea in law, alleging infringement of Article 5(2),(3) and (7) and of Article 9(5) of the basic regulation
83      The applicant maintains that the complaint of 28 June 2012 that led to the initiation of the investigation did not contain the evidence required by Article 5(2) of the basic regulation. According to the applicant, the data contained in that complaint concerning the price and price-undercutting of Chinese imports were incorrect. In addition, it states that the complaint contained no evidence capable of substantiating the claim that imports from China were not dumped.
84      The applicant therefore submits that by not examining the accuracy of the evidence provided in the complaint of 28 June 2012 and by not rejecting the complaint, the institutions infringed Article 5(3) and (7), respectively, of the basic regulation and, furthermore, that the anti-dumping duty imposed on it constitutes an infringement of Article 9(5) of that regulation.
85      It should be recalled, first of all, that under Article 5(2) of the basic regulation, any complaint made to the Commission must include evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury.
86      Article 5(3) of the basic regulation provides that the Commission must, 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. If, on the other hand, it considers that there is insufficient evidence to justify proceeding with the case, the complaint is rejected, in accordance with Article 5(7) of that regulation.
87      In that regard, while it is true that the Commission has an obligation to objectively establish facts relating to the existence of dumping and the injury which may ensue for the EU industry, the fact remains that it has a broad discretion in deciding, in the light of the Union’s interests, any measures needed to deal with the situation which it has established (see, to that effect, judgment of 4 October 1983, Fediol v Commission, 191/82, EU:C:1983:259, paragraph 26).
88      In addition, it has consistently been held that the provisions of the basic regulation must, so far as possible, be interpreted in a manner that is consistent with the corresponding provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the Anti-Dumping Agreement’) in Annex 1 A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3) (judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 38).
89      Although the interpretations of the Anti-Dumping Agreement by the WTO’s Dispute Settlement Body cannot bind the Court in its assessment as to whether the contested regulation is valid (see, to that effect, judgment of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraph 54), there is nothing to prevent the Court from referring to them, where provisions of the basic regulation have to be interpreted (judgment of 25 October 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 36).
90      Accordingly, Article 5 of the basic regulation, which seeks to implement the content of Article 5 of the Anti-Dumping Agreement, must be interpreted, as far as possible, in the light of that provision and of its interpretation by the WTO’s Dispute Settlement Body.
91      Finally, Article 9(5) of the basic regulation provides that ‘an anti-dumping duty shall be imposed in the appropriate amounts in each case, on a nondiscriminatory basis on imports of a product from all sources found to be dumped and causing injury, except as to imports from those sources from which undertakings under the terms of this Regulation have been accepted’.
92      In the present case, it is therefore necessary to examine whether the institutions infringed the above provisions by initiating an investigation into imports from India.
93      In the first place, as regards the alleged infringement of Article 5 of the basic regulation, it must be held, first, that the complaint of 28 June 2012 includes the information required in paragraph 2 of that provision, namely information as to the existence of the alleged dumping of the product concerned, the injury resulting therefrom and the causal link between the allegedly dumped imports and the alleged injury. That complaint also includes information attesting to the lack of impact of other factors, such as the Chinese imports, on the injury suffered by the Union industry.
94      Secondly, it should be borne in mind that Article 5(2)(d) of the basic regulation provides that the complaint must contain ‘information on changes in the volume of the allegedly dumped imports, the effect of those imports on prices of the like product on the EU market and the consequent impact of the imports on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5)’. Contrary to the applicant’s submission, that provision does not provide that information should be included in the complaint as to the factors capable of breaking the causal relationship between the dumped imports and the injury caused to the Union industry.
95      Consequently, in the present case, the institutions may not be criticised for not having examined the accuracy and adequacy of information which went beyond what the complaint of 28 June 2012 must contain under Article 5(2) of the basic regulation, such as those relating to the prices of the Chinese imports, or for having failed to examine the question of a possible break in the causal link between the allegedly dumped imports and the alleged injury resulting from the Chinese imports.
96      In any event, as regards the Chinese import price data, it is clearly apparent from the complaint of 28 June 2012 that the prices set out therein do not take account of the prices of imports into the United Kingdom, which explains why the data in question differed from those of Eurostat, the statistical office of the European Union. Nevertheless, the institutions were able to take Eurostat’s data into account, since they were annexed to the complaint at issue.
97      Thirdly, although the information provided in the complaint of 28 June 2012 also contains errors relating to other data, such as those relating to the volume and price of imports from India, that fact cannot lead to the finding that the institutions infringed Article 5(3) of the basic regulation.
98      In that regard, it should be noted that the quantity and quality of the evidence necessary to meet the criteria of the sufficiency of the evidence for the purpose of initiating an investigation is different from that which is necessary for the purpose of a preliminary or final determination of the existence of dumping, injury or of a causal link. Therefore, evidence which is insufficient in quantity or quality to justify a preliminary or final determination of dumping, injury or causation, may nevertheless be sufficient to justify the initiation of an investigation (see, by analogy, report of the WTO Panel, ‘Guatemala — Anti-Dumping Investigation Regarding Portland Cement from Mexico’, of 19 June 1998, WT/DS60/R, paragraph 7.57).
99      Moreover, although, admittedly, the accuracy and adequacy of the evidence provided in the complaint are relevant to the determination by the institutions of whether there is sufficient evidence to justify the initiation of an investigation, it should be noted that the legal criterion under Article 5(3) of the basic regulation is not as such the accuracy and adequacy of the evidence, but the sufficiency thereof (see, by analogy, report of the WTO Panel, ‘Argentina — Definitive Anti-Dumping Duties on Poultry from Brazil’, of 22 April 2003, WT/DS241/R, paragraph 7.60, and report of the WTO Panel, ‘United States - Final Dumping Determination on Softwood Lumber from Canada’, of 13 April 2004, WT/DS264/R, paragraph 7.79).
100    In the present case, the Court finds, like the Council, that the differences noted by the applicant between the figures provided in the complaint of 28 June 2012 and those taken from the Eurostat data are not significant. Those figures differ by approximately 1% at most. It should also be noted that some of the figures provided in the complaint are more favourable to the applicant than those taken from the Eurostat data in that they indicate a smaller volume of imports from India and a higher price of those imports. It is moreover when the figures are more favourable to the applicant that the differences with the figures taken from Eurostat appear to be the most significant.
101    In any case, it had been possible rapidly to verify and correct the data provided in the complaint of 28 June 2012 on the basis of the Eurostat data annexed to it. In those circumstances, the errors in the complaint at issue do not call into question the institutions’ conclusion that the complaint contained sufficient evidence to justify the initiation of an investigation.
102    Fourthly, it should be noted that Article 5(7) of the basic regulation does not impose on the institutions any substantive obligations in addition to those arising under Article 5(3) of that regulation as regards the initiation of the investigation, so that, in the presence of sufficient evidence to justify the initiation of an investigation under Article 5(3), the failure to dismiss the complaint does not constitute an infringement of Article 5(7) of that regulation (see, by analogy, report of the WTO Panel, ‘Mexico — Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States’, of 28 January 2000, WT/DS132/R, paragraph 7.99). Accordingly, inasmuch as, in the present case, the applicant failed to establish that the initiation of the investigation was incompatible with the requirements of Article 5(3) of the basic regulation, it may not validly argue that there had been a breach of Article 5(7) of that regulation.
103    In those circumstances, it must therefore be concluded that, in accordance with Article 5(2) of the basic regulation, the complaint contains prima facie evidence of dumping and that the institutions were entitled to hold, without committing a manifest error of assessment, that those factors were sufficient, within the meaning of Article 5(3) of the regulation, to justify the initiation of an investigation into imports which were alleged in the complaint to have been dumped.
104    Secondly, as regards the alleged infringement of Article 9(5) of the basic regulation, the applicant does not submit any particular argument in that regard. It appears to argue that the infringement of that provision results solely from the infringement of Article 5 of the basic regulation. In so far as the institutions did not infringe that provision (see paragraphs 93 to 103 above), the applicant’s allegation concerning infringement of Article 9(5) of the basic regulation must be dismissed.
105    In any event, a difference in treatment which consists of opening anti-dumping proceedings in respect of Indian imports only, even though there was evidence to justify investigating other imports, in particular those from China, does not constitute an infringement of Article 9(5) of the basic regulation, even if such a difference in treatment were proved (see, to that effect, judgment of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 36).
106    It is apparent from the wording of Article 9(5) of the basic regulation that that provision prohibits discriminatory treatment between all imports on which anti-dumping duties have been imposed in respect of imports of the same product (judgment of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 38). What is at issue here, however, is an alleged difference in treatment between imports on which anti-dumping duties have been imposed and imports which have not been the subject of any investigation. The facts of the present case therefore do not fall within the scope of Article 9(5) of the basic regulation.
107    Accordingly, the applicant’s arguments concerning the alleged dumping of Chinese imports do not affect the legality of the contested regulation.
108    In the light of the foregoing, the third plea must be rejected as unfounded.
The first plea in law, alleging manifest errors in the calculation of the cost of production in breach of Article 2(1), (3) to (6), (11) and (12) of the basic regulation, and breach of the obligation to state reasons
109    The applicant disputes the institutions’ upward adjustment of the cost of manufacture in respect of the SGA costs. It explains that it accepts the method used, which consists in allocating the SGA costs for the product concerned using the proportion of the sales value of that product in its total turnover as a basis for the allocation. However, it submits that the institutions erred in applying that method, and divides its argument into two parts. In the first part, the applicant maintains that the institutions made errors of calculation in the upward adjustment of the COP. The second part of the plea alleges that certain costs were taken into account incorrectly or twice in the context of the SGA costs.
110    Before examining the two parts of the first plea, it should be recalled, first of all, that the main method of determining the normal value of a product is set out in Article 2(1) of the basic regulation. According to that provision, ‘the normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country’.
111    Where sales are not made in the ordinary course of trade, normal value is to be calculated in accordance with Article 2(3) of the basic regulation on the basis of the cost of production in the country of origin plus a reasonable amount for SGA costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative. According to Article 2(4), sales at prices below production costs plus selling, general and administrative costs will be treated as not being in the ordinary course of trade if it is determined that such sales are made within an extended period in substantial quantities, and are at prices which do not provide for the recovery of all costs within a reasonable period of time.
112    The first subparagraph of Article 2(5) of the basic regulation provides that costs must normally be calculated on the basis of records kept by the party under investigation. The third subparagraph of that provision provides that ‘consideration shall be given to evidence submitted on the proper allocation of costs, provided that it is shown that such allocations have been historically utilised’, and that, ‘in the absence of a more appropriate method, preference shall be given to the allocation of costs on the basis of turnover’.
113    Furthermore, Article 18(1) of the basic regulation authorises the institutions to use the facts available in cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided in that regulation, or in which it significantly impedes the investigation. The use of facts available is also authorised if any interested party supplies false or misleading information. It is apparent from the wording of that provision that these four conditions are alternatives, so that if just one of them is satisfied, the institutions may use the facts available as the basis for their provisional or final findings (judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T‑633/11, not published, EU:T:2014:271, paragraph 44).
114    Finally, it is apparent from the case-law that, where the institutions enjoy a broad discretion, as is the case in the sphere of measures to protect trade by reason of the complexity of the economic, political and legal situations they have to examine (judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40), respect for the safeguards guaranteed by the European Union legal order in administrative proceedings is of even more fundamental importance. Those safeguards include, in particular, the requirement that the competent institution consider, carefully and impartially, all the information which is relevant to the particular case as well as the right of the person concerned to put forward his point of view and to have sufficient reasons given for the decision. Only in this way can the European Union Courts verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (see, to that effect, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraph 63; and of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, T‑122/09, not published, EU:T:2011:46, paragraph 75).
115    The applicant’s arguments must be assessed in the light of both parts of the first plea.
The first part of the first plea, alleging miscalculations in the upward adjustment of the COP and breach of the obligation to state reasons
116    The applicant does not dispute the method used by the institutions in allocating the SGA costs for the product concerned in proportion to the turnover but submits that errors were made when applying that method.
117    In that regard, first of all, it observes that the institutions did not carry out their calculations on the basis of the COM reported in the reply to the questionnaire, that is 171 833 Indian Rupees (INR), excluding packaging costs. It maintains that the institutions were not entitled to disregard the figures reported, since those figures were accepted and since, in the final stage, Article 18 of the basic regulation was not applied.
118    Next, the applicant submits that no explanation was given as regards the COM of INR 172 625 taken into account by the institutions. The latter did not explain in the course of the administrative proceeding or in the contested regulation the calculations which made it possible to arrive at that figure, thereby infringing their obligation to state reasons.
119    Finally, in the reply, the applicant states that it is unable to understand whether the upward adjustment of 13.82% was applied to the COM or the COP. It understood that the adjustment had been made on the basis of the COP. On reading the defence, it appears that that adjustment was applied to the COM. In addition, it claims that the percentages added to the COM in respect of the SGA costs did not correspond to those stated in the definitive findings. It therefore maintains that the institutions’ failure to provide an adequate explanation constitutes a breach of its rights of defence and of the principle of sound administration.
120    The Council contends that no error was made when it adjusted the applicant’s costs and maintains that the calculations proposed by the applicant are based on information that was never accepted by the institutions.
121    On the one hand, in their pleadings before the Court, the Council observes that the average cost of INR 176 737 was regarded as a valid basis to which it was appropriate to add the SGA costs. When 2% and 6.32% of the turnover was added to that cost, for other costs and finance costs respectively, the revised COP came to INR 196 607.
122    Moreover, the Council explains that the average cost of production excluding packaging costs was determined by deducting 1.56% from the average cost including packaging costs reported in the applicant’s internal accounting system, which came to INR 175 320. The average manufacturing cost excluding packaging costs thus arrived at is INR 172 625. When comparing that amount with the revised COP, it was therefore established that the applicant had underestimated the SGA costs by 13.82%, requiring an adjustment to be made. According to the Council, the information and detailed calculations sent to the applicant enabled it to understand that the upward adjustment had been established by comparing the COM provided by the applicant and the revised COP and that that adjustment was expressed as a percentage of the COM.
123    On the other hand, at the hearing, the Council reminded the Court that, during the administrative proceeding, an agreement had been reached with the applicant, pursuant to which the data provided by the applicant relating to the COM could be accepted, but that, in so far as the data provided in respect of the allocation of SGA costs could not be considered reliable, that allocation would be determined on the basis of its total turnover in accordance with Article 2(5) of the basic regulation. On the basis of that agreement, the institutions calculated a revised COP by constructing, on the basis of the applicant’s annual accounts, a ‘notional’ COM amounting to INR 176 737, to which were added, by way of SGA costs, 2.7% and 8.54% respectively for other costs and finance costs.
124    The COP thus revised, in the amount of INR 196 607, is then alleged to have been compared to a COM excluding packaging costs in the amount of INR 172 625. In that regard, the Commission explained at the hearing that the COM excluding packaging costs in the amount of INR 171 833 notified by the applicant had not been retained as that COM included labour costs, which could not be taken into account. The COM excluding packaging costs was therefore calculated by deducting 1.56% of the COM including packaging costs provided by the applicant, which, in the Commission’s view, was to the latter’s advantage. By comparing the revised COP with the COM excluding packaging costs, the institutions thus arrived at an adjustment rate of 13.82% which was applied to all the COMs provided by the applicant for each type of product.
125    It must be borne in mind that the statement of reasons relating to a measure of an EU institution must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and defend their rights and to enable the Court to exercise its power of review (judgment of 27 September 2005, Common Market Fertilizers v Commission, T‑134/03 and T‑135/03, EU:T:2005:339, paragraph 156). The question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be appraised having regard, in particular, to the information disclosed to the applicant and to the observations which it made during the administrative proceeding (judgment of 4 March 2010, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06, EU:T:2010:70, paragraph 127).
126    The institutions are admittedly not obliged to adopt a position on all the arguments relied on by the parties concerned (judgments of 8 June 1995, Siemens v Commission, T‑459/93, EU:T:1995:100, paragraph 31, and of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 280).
127    However, where, in a case of dumping, the interested parties insist during the administrative proceeding on obtaining answers or clarifications in respect of the key method to be used by the institutions in making the calculations, it must be held that it is even more important for the institutions to give reasons for their decision in such a way that the persons concerned are able to understand the calculations thus made.
128    In addition, the reasons for a measure must appear in the actual body of the measure and may not, save in exceptional circumstances where there is inadequate reasoning, be stated in written or oral explanations given subsequently when the measure is already the subject of proceedings brought before the European Union Courts (judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 174).
129    In the present case, it is therefore necessary to examine whether the institutions provided adequate reasons for their decision to adjust upwards the costs provided by the applicant and, if so, whether they committed a manifest error of assessment in making such an adjustment.
130    It should first be recalled that, at the provisional regulation stage, the Commission noted in recital 28 of that regulation that the cost tables provided in the reply to the questionnaire did not correspond to the data contained in the internal accounting system. It was therefore decided to apply Article 18 of the basic regulation and to make provisional adjustments to the cost data provided by the applicant in its reply to the questionnaire in the light of the data available in its internal accounting system.
131    On several occasions during the administrative proceeding (see paragraphs 8 and 16 above), the applicant explained to the Commission the reasons why there were discrepancies between the data included in its internal accounting system and those provided in the reply to the questionnaire. It also stated that those discrepancies could be reconciled on the basis of the documents collected by the Commission during the verification visit.
132    At the final stage of the investigation, as stated in recital 27 of the contested regulation, the institutions considered that there was no longer any need to apply Article 18 of the basic regulation to establish the dumping margin for the applicant. It was considered that, on the basis of the explanations provided by the applicant, most of the costs included in the reply to the questionnaire could be accepted. Only the allocation of SGA costs provided by the applicant, determined on the basis of the profit and loss table, was not considered reliable. In agreement with the applicant, the SGA costs were, accordingly, allocated on the basis of the turnover and the cost of goods sold, in accordance with Article 2(5) of the basic regulation.
133    Secondly, as regards the application of the method used by the institutions to calculate the readjusted COP, it must be stated that, during the administrative proceeding, the explanations provided in that regard to the applicant were incomplete. It was only in the course of the proceedings before the Court that the institutions provided more information on the manner in which that method was applied and on the figures used in their calculations.
134    First of all, it should be noted that, in Annex 5 to the definitive findings, the institutions indicated that they had adopted the amount of INR 176 737 as the basis for adding SGA costs. As regards the percentages added to that basis in respect of SGA costs, it is stated in that document that ‘for other expenses 2% based on turnover is added to the manufacturing costs, after elimination of the processing costs already accounted for and the costs which were deducted as allowances in order to arrive at [ex-works prices]’, and, ‘for finance costs, 6.32% based on turnover is added, bringing the total average cost to INR 196 607 per ton, which, compared to the average of INR 172 625 in the questionnaire reply, represents an upward adjustment of 13.9%’.
135    In that regard, the applicant repeatedly stated, in the course of the administrative proceeding, its lack of understanding with respect to the figures used by the institutions in their calculations. In its observations on the definitive findings of 28 August 2013, and at the hearing of 4 September 2013, it stated that the COM on which the Commission had based its calculations was incorrect. It recalled that the COM excluding packaging costs notified in the document relating to production costs for products intended for the European market, entitled EUCOP, amounted to INR 171 833 and not INR 172 625. Furthermore, in his report of the hearing of 8 March 2013, the hearing officer himself invited the institutions to comment on the observations made and documents provided by the applicant, and to provide a detailed justification for the data used to determine the margin of dumping.
136    However, neither in the course of the administrative proceeding nor in the contested regulation did the institutions provide further explanations enabling the applicant to understand the reasoning followed in relation to the various COM figures used to determine the rate of adjustment. In the additional disclosure of 10 September 2013, the Commission failed to reply to the applicant’s comments on the amount of the COM on the basis of which the calculations were made, and further failed to explain how it arrived at the amount of INR 172 625, although it had stated at the hearing on 4 September 2013 that it was prepared to provide further explanations on the calculations made.
137    Next, in the defence, the Commission explained that the COM excluding packaging costs used to determine the rate of adjustment had been calculated by deducting 1.56% of the COM including packaging costs provided by the applicant in the EUCOP document, which amounted to INR 175 320. The COM excluding packaging costs to which the institutions compared the revised COP in order to establish the adjustment rate was thus set at INR 172 625.
138    In addition, in the defence, the Council indicated that the percentages added to the COM for other costs and finance costs were respectively 2.7% and 8.54% of the manufacturing costs. It explained in that regard that, in order to be added to the COM, SGA costs had to be expressed in relation to costs rather than turnover.
139    As regards that information, it should, on the one hand, be noted that the origin of the amount of INR 172 625 — obtained by deducting, in respect of packaging costs, 1.56% of the COM including packaging costs provided by the applicant — was never mentioned by the institutions before the statement of defence was submitted. Furthermore, no explanation was given as to why the institutions calculated the COM excluding packaging costs instead of taking account of that provided by the applicant. It should be pointed out that in the document referred to by the Council, namely the revised version of the EUCOP document of 22 November 2012, sent to the Commission on 26 November 2012, the amount of the COM including packaging costs was set out, together with that excluding packaging costs.
140    Accordingly, to the extent that the institutions stated that they accepted the costs provided by the applicant and that no reason was given to explain why the COM excluding packaging costs provided by the applicant was not taken into account, the information on the calculation of the COM excluding packaging costs taken into account by the institutions still did not, at the end of the written stage of the proceedings before the General Court, make it possible to understand the institutions’ reasoning with respect to the figures used to determine the rate of adjustment.
141    On the other hand, as regards the percentages added to the COM, it should be noted that the figures mentioned by the Council in the defence and in the replies to the questions put by the General Court in the context of the measures of organisation of procedure are set out in the table reproduced in Annex 5 to the definitive findings. This table shows the percentages of 2% for other costs and of 6.32% for finance costs and, in an adjacent column, the percentages of 2.7% and 8.54% for, respectively, other costs and finance costs. Furthermore, in the additional disclosure of 30 September 2013, those figures were also mentioned in order to reject the applicant’s claim that the adjustment ratios for other costs and finance costs should have been revised down. However, it is appropriate to find that the mere reference to those figures, without further explanation, in a context in which the applicant expressed, throughout the administrative proceeding, its wish to obtain clarification on the application of the method used by the institutions in order to calculate the readjusted COP, was not sufficient to make it possible to understand which percentages were actually used for other costs and finance costs.
142    Finally, it was only at the hearing that the institutions explained that they had not taken account of the COM excluding packaging costs provided by the applicant, since they had found that the labour costs should not be included in the packaging costs. The failure to take account of labour costs therefore led them to deduct only 1.56%, and not 1.99%, from the COM including packaging costs provided by the applicant, in order to arrive at a COM excluding packaging costs of INR 172 625. According to the institutions, the taking into account of that amount, instead of the figure for the COM excluding packaging costs provided by the applicant in the amount of INR 171 833, is to the advantage of the latter. To the extent that the adjustment rate was determined by comparing the amount of the COM excluding packaging costs with the amount of the revised COP, the taking into account of a lower COM excluding packaging costs, such as that provided by the applicant, had ‘they claim’ the effect of increasing the rate of adjustment.
143    In that regard, the fact that it is allegedly to the applicant’s advantage to use a COM excluding packaging costs which is higher than that provided in the reply to the questionnaire does not in any way justify or excuse the lack of explanation provided concerning the figure thus retained in respect of the COM.
144    In those circumstances, in the light of case-law referred to in paragraphs 125 to 128 above, and given the applicant’s repeated requests during the administrative proceeding for additional explanations on the reasoning followed by the institutions, it must be held that the institutions infringed their obligation to state reasons.
145    Thirdly, it should be noted that the reasoning followed by the institutions in order to calculate the rate of adjustment, as it may have been understood at the end of the proceeding before the General Court, still raises several problems of understanding.
146    It must be borne in mind that the institutions, on the basis of the annual accounts, constructed a reference COM, referred to as the ‘notional’ COM at the hearing, to which the SGA costs were added in order to arrive at the readjusted COP. The latter was then compared with the COM provided by the applicant in order to determine the rate of adjustment which should be applied to the costs declared in the anti-dumping questionnaire for each type of product. Such a combination of the data drawn up by the institutions, on the one hand, and the information provided by the applicant in the anti-dumping questionnaire on the other, raises questions in the light of the agreement reached between the parties in respect of the method to be applied and the data to be used in order to determine the rate of adjustment. Moreover, that combination, which remains unexplained, turns out to be to the disadvantage of the applicant in that it leads to a higher rate of adjustment.
147    In that regard, first of all, it should be recalled that, in agreement with the applicant, the institutions decided to calculate the SGA costs on the basis of Article 2(5) of the basic regulation and, consequently, adopted a system for allocating these costs based on turnover. It was therefore agreed between the applicant and the institutions that the SGA costs would be calculated not on the basis of the answers given in the anti-dumping questionnaire but on the basis of the applicant’s annual accounts, in accordance with Article 2(5) of the basic regulation. On the other hand, the application of that provision did not mean that the COM, to which the SGA charges would have to be added in order to arrive at the readjusted COP, would also be determined on the basis of data other than those provided by the applicant.
148    Next, it must be held that the ‘notional’ COM of INR 176 625, taken as the basis to which the SGA costs were added, does not correspond to the COM provided by the applicant. The institutions constructed that COM on the basis of the annual accounts and justify that construction by the fact that, at the provisional stage of the investigation, it was not possible to reconcile the figures provided by the applicant with the data contained in its internal accounting system and that it was therefore necessary to use the available data in accordance with Article 18 of the basic regulation.
149    However, to the extent that that provision was not applied at the final stage of the investigation, the explanation given by the institutions to justify the construction of a COM on the basis of the annual accounts is not convincing and renders the reasoning followed in order to determine the rate of adjustment all the more confusing.
150    Moreover, the argument put forward at the hearing by the Commission in order to reduce the importance of the ‘notional’ COM, that that COM was used only to determine the adjustment rate of 13.82%, is not relevant in that it does not explain the reasoning followed.
151    Finally, when comparing the revised COP to the COM in order to determine the adjustment rate, the institutions used the COM provided by the applicant, namely the COM in the amount of INR 175 320, from which 1.56% was withdrawn by way of packaging costs. That reasoning, with respect to the two data used and compared in order to determine the adjustment rate, is difficult to understand.
152    The objective of the institutions is to assess to what extent the costs provided by the applicant for each type of product must be adjusted upwards so that they also accurately reflect SGA costs. In order to do so, the institutions recalculated the COP, which, it should be recalled, consisted of the COM and the SGA costs, and compared it to the COM provided by the applicant. However, as noted above, the COM provided by the applicant was compared with a COP calculated on the basis of another COM, namely the ‘notional’ COM of INR 176 625 to which a percentage of the turnover in respect of SGA costs was added. The institutions thus followed a reasoning which, prima facie and without further explanation, appears to be based on data from different sources and which are not necessarily comparable.
153    In addition, it should be noted that that reasoning had the effect of substantially increasing the difference between the two COM taken into account for the purposes of the comparison, and, accordingly, the adjustment rate, in so far as the ‘notional’ COM is higher than that provided by the applicant. Therefore, detailed and relevant explanations should have been provided to the applicant in that regard. Even in the course of the proceedings before the Court, the institutions did not provide such explanations.
154    In the light of the foregoing, it must therefore be held that, at the end of the proceedings before the Court, the Court does not have all the information necessary in order to confirm that no manifest error of assessment was made by the institutions when determining the rate of adjustment.
155    The first part of the first plea must therefore be upheld in that the institutions infringed their obligation to state reasons.
The second part of the first plea in law, alleging that certain costs were taken into account twice and incorrectly taken into account
156    The applicant submits that the SGA costs calculated by the institutions include items which should be excluded therefrom.
157    First of all, as regards the 2% of turnover added to the COM as ‘ex works other expenses’, the applicant maintains that it includes processing costs already accounted for in the COM. As a result, those costs were recorded twice in the revised COP.
158    Secondly, as regards the 6.32% of turnover added to the COM as ‘ex works finance costs’, first, the applicant claims that that percentage includes items that were deducted from the selling price in the domestic market and from the export price by way of adjustment. In that regard, the applicant explains that 0.87% was deducted from those prices as credit costs. In calculating the COP, the institutions made a deduction of only 0.05% for bank charges but refused to deduct the credit costs, which inflated the COP by 0.82%. The applicant further submits that the fact that the credit costs are notional and not actual cannot constitute a ground for refusing to deduct those costs.
159    Second, the applicant claims that the foreign currency conversion costs are not part of the SGA costs.
160    Thirdly, it maintains that, if the foreign currency conversion costs had to be included in the SGA costs, the institutions should also have taken into account the gains on foreign currency conversions and not just the losses. In that regard, it states that it realised net gains and therefore that no loss on transactions and conversions into foreign currency should have been recorded in SGA costs.
161    According to the applicant, after elimination of the abovementioned costs, the ‘ex works other expenses’ and the ‘ex works finance costs’ represent respectively only 0.84% and 5.28% of turnover. Applying those percentages to the COM according to the method used by the institutions, the revised COP amounts to INR 187 043.09. The difference between the revised COP and the COP notified in the reply to the questionnaire is therefore only 2.59%.
162    The applicant submits that, by using excessive SGA costs, the institutions infringed Article 2(5) and (6) of the basic regulation, which also led to an increase in the normal value and the number of sales considered as not constituting normal commercial transactions, in breach of Article 2(3) and (4) of that regulation.
163    It should be borne in mind that the COP, understood as the sum of the COM and SGA costs, is taken into account by the institutions in order to assess whether domestic sales are profitable and can therefore be considered to have taken place in the ordinary course of trade, and, furthermore, in order to calculate normal value where the domestic sales in question could not be considered to have taken place in the ordinary course of trade.
164    It follows, as the applicant submits, that, if there are errors in the determination of the SGA costs, in breach of Article 2(5) and (6) of the basic regulation, and those errors lead to the value of the COP being increased, more sales are likely to be considered unprofitable. In addition, both the normal value and the dumping margin will unduly be increased, since the dumping margin is to be established on the basis of a comparison between the normal value and the export price, in accordance with Article 2(11) and (12) of the basic regulation.
165    In the present case, it is therefore appropriate to examine whether the SGA costs taken into account by the institutions included costs which should have been excluded.
166    First, as regards the costs which, according to the applicant, were already included in the COM and could not therefore be counted a second time in the ‘other costs’, it should be pointed out that the institutions deducted certain expenses, falling under ‘other costs’, such as electricity, fuel and labour costs, in so far as those costs constituted manufacturing costs already taken into account in the COM. However, in the additional communication of 10 September 2013, the Commission refused to deduct the other costs claimed by the applicant, stating that ‘there are no elements in the verified file that prove that the items “material handling charges, job work charges, repairs and maintenance, water expenses, rent, rates and taxes and legal and professional expenses” were already incorporated in the above determined unadjusted cost of manufacturing’.
167    In that regard, it should be recalled that the data provided by the applicant in respect of the SGA costs were not regarded as reliable by the institutions. It was therefore decided, in agreement with the applicant, to determine the SGA costs on the basis of Article 2(5) of the basic regulation and to take account only of the annual accounts in calculating those costs.
168    The applicant has not shown that the double counting of certain costs could be established solely on the basis of the annual accounts. One of the documents relied on by the applicant in support of its claim that certain costs were recorded twice, namely item 33 obtained during the verification visit, contains information which is not included in the annual accounts and which has therefore not been verified.
169    Consequently, it cannot be held that the institutions made a manifest error of assessment in failing to deduct the costs mentioned by the applicant from the SGA costs.
170    Secondly, as regards the ‘ex works other expenses’, the applicant criticises the institutions for not having deducted the same percentage in respect of credit costs as that deducted from the prices for export sales and for domestic sales reported in the transaction-by-transaction tables, and, furthermore, for not having deducted the losses on transactions and conversions into foreign currency.
171    First, as regards credit costs, the Commission stated in the additional communication of 10 September 2013 that:
‘These costs amount to 2.47% on turnover company-wide, but only 0.87% of turnover is deducted from the transaction-by-transaction (T-by-T) listing as an allowance. Apart from the elimination from the adjusted cost of the item bank charges (0.05% of turnover), which can be accepted, the credit costs deducted in the T-by-T as an allowance are notional and based on the payment conditions. There is no corresponding cost identifiable in the reported costs, that could be deducted from the finance costs. In order to guarantee an equal treatment of costs and prices, at [ex works] level, only bank charges as deducted in the T-by-T can therefore be taken into account.’
172    The applicant does not allege that the total amount of the credit costs incurred, namely 2.47% of turnover, should have been deducted from the SGA costs calculated by the institutions. On the other hand, it does submit that, in so far as the institutions acknowledged that it was necessary to deduct 0.87% of the turnover from the price of domestic sales and from the export sales price indicated in the transaction-by-transaction table, the same adjustment should have been made in the context of the determination of the COP.
173    In that regard, it must be held that the applicant has in no way demonstrated that, on the basis of the annual accounts, which were the only item taken into account by the institutions in determining SGA costs, it was possible to identify credit costs, corresponding to the credit costs of domestic and export sales, which could be deducted from financial costs. To the extent that, in agreement with the applicant, the institutions decided to take account only of the data in the annual accounts in order to calculate SGA costs (see paragraph 167 above), they may not be criticised for having complied with the terms of that agreement and for not having taken account of other data. Accordingly, there is nothing in the present case to suggest that the institutions’ refusal to deduct credit costs as part of the determination of the COP, although such a deduction had been made in respect of the price of domestic sales and export sales on a transaction-by-transaction basis, compromised the analysis of the profitability of those domestic sales.
174    The applicant’s claim that the institutions erred in failing to deduct the credit costs from the SGA costs must therefore be rejected.
175    Secondly, as regards losses on transactions and conversions into foreign currency, the applicant submits that those costs should not be included in the SGA costs and that, in any event, to the extent that the financial gains on foreign currency conversion that it achieved are greater than the losses, no cost should have been accounted for in that respect. It notes that the losses and gains resulting from the conversion of foreign currency are clearly indicated in the documents sent to the institutions and, in particular, in item 43 provided during the verification visit.
176    The Council maintains that the gains on currency conversion referred to by the applicant cannot be offset against the financial costs in so far as, on the one hand, some of those gains are not linked to the applicant’s production activity and, on the other, the documents relied on were not accepted by the institutions.
177    It should be noted that the losses on foreign currency transactions and conversions must be included in the SGA costs if they are linked to the applicant’s main activity. The SGA costs are comprised of costs related to sales and to the overall working and operation of the business.
178    Moreover, it must be held that the gains on transactions and conversions into foreign currency, in so far as they are also related to the applicant’s main production activity and to the sales related thereto, may also be taken into account, up to the level of the financial charges resulting directly from that production and sale activity.
179    However, in the present case the applicant has still not established that the institutions committed a manifest error of assessment by taking into account only the losses on foreign currency transactions and conversions when calculating SGA costs.
180    In the first place, as regards the losses, the applicant does not dispute that the losses mentioned in the annual accounts under the heading ‘[L]oss on foreign currency translation and transaction’ are losses related to its main business. They must therefore be taken into account in the calculation of SGA costs.
181    Secondly, with regard to earnings, it should be noted that in the annual accounts, the amount of the gains under the heading ‘[N]et gain on foreign currency translation and transaction’ amounted to zero as at 31 March 2012. In fact, the claims relied on by the applicant, which, according to the latter, should have been taken into account in order to offset the losses on foreign currency transactions and conversions, are included under other headings, namely ‘[P]rofit on cancellation of forward exchange contracts’ and ‘[E]xchange gain/loss’.
182    On the one hand, as regards the gains realised following the annulment of the forward exchange contracts, the applicant has not adduced any evidence capable of showing that the Council committed a manifest error of assessment in holding that those gains, amounting to INR 26 003 847, did not constitute gains related to its main activity and hence could not be taken into consideration in the calculation of the SGA costs.
183    Moreover, as regards the exchange gains relied on by the applicant, it should be noted, as the Council has done, that those gains are not included in the annual accounts but appear only in item 43, provided during the verification visit. To the extent that, as was recalled above (see paragraph 167 above), it was agreed with the applicant to determine the SGA costs solely on the basis of the annual accounts, the institutions may not be criticised for not having taken into account the data contained in item 43.
184    In any event, the applicant has not submitted any evidence to show that the gains under the heading ‘[E]xchange gain/loss’ constitute gains linked to its main activity and should therefore have been taken into account by the institutions.
185    In those circumstances it must be held that the applicant has not established that losses on foreign currency transactions and conversions should have been deducted from the costs because of the existence of similar gains with which those losses would have had to be compensated.
186    In the light of all the foregoing, the second part of the first plea must therefore be rejected.
187    However, in so far as the first part of the first plea has been upheld, and that it is sufficient to justify the annulment of the contested regulation, the contested regulation must be annulled in so far as it concerns the applicant.
Costs
188    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicant in accordance with the form of order sought by the applicant.
189    The Commission shall bear its own costs in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber),
hereby:
1.      Annuls Council Implementing Regulation (EU) No 1106/2013 of 5 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain stainless steel wires originating in India, as far as it relates to Viraj Profiles Ltd;
2.      Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Viraj Profiles;
3.      Orders the European Commission to bear its own costs.
Van der Woude
Ulloa Rubio
Marcoulli
Delivered in open court in Luxembourg on 11 July 2017.
E. Coulon
S. Frimodt Nielsen
Registrar
President
* Language of the case: English.