JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
21 February 2024 (*)
(Dumping – Imports of certain polyvinyl alcohols originating in China – Definitive anti-dumping duty – Implementing Regulation (EU) 2020/1336 – Calculation of the normal value – Significant distortions in the exporting country – Article 2(6a) of Regulation (EU) 2016/1036 – WTO law – Principle of consistent interpretation – Price undercutting – Market segments – Product control number method – Article 3(2) and (3) of Regulation 2016/1036 – Rights of the defence – Confidential treatment – Articles 19 and 20 of Regulation 2016/1036)
In Case T‑764/20,
Anhui Wanwei Updated High-Tech Material Industry Co. Ltd, established in Chaohu (China),
Inner Mongolia Mengwei Technology Co. Ltd, established in Bai Town (China),
represented by J. Cornelis, F. Graafsma and E. Vermulst, lawyers,
applicants,
supported by
Wegochem Europe BV, established in Amsterdam (Netherlands), represented by R. Antonini, E. Monard and B. Maniatis, lawyers,
intervener,
v
European Commission, represented by G. Luengo, acting as Agent,
defendant,
supported by
European Parliament, represented by A. Neergaard, D. Moore and A. Pospíšilová Padowska, acting as Agents,
by
Council of the European Union, represented by H. Marcos Fraile and B. Driessen, acting as Agents, and by N. Tuominen, lawyer,
by
Kuraray Europe GmbH, established in Hattersheim am Main (Germany), represented by R. MacLean and D. Sevilla Pascual, lawyers,
and by
Sekisui Specialty Chemicals Europe SL, established in La Canonja (Spain), represented by A. Borsos and J. Jousma, lawyers,
interveners,
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of L. Truchot (Rapporteur), President, H. Kanninen, L. Madise, R. Frendo and T. Perišin, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 and 15 December 2022,
gives the following
Judgment
1        By their action under Article 263 TFEU, the applicants, Anhui Wanwei Updated High-Tech Material Industry Co. Ltd (‘Wanwei’) and Inner Mongolia Mengwei Technology Co. Ltd (‘Mengwei’), seek the annulment of Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China (OJ 2020 L 315, p. 1; ‘the contested regulation’), in so far as it concerns them.
Background to the dispute
2        Mengwei is a Chinese undertaking which produces and exports polyvinyl alcohols (‘PVA’) to the European Union. Wenwei is a Chinese undertaking related to Mengwei which sells the products made by the latter.
3        On 18 June 2019, Kuraray Europe GmbH (‘Kuraray’), a PVA producer representing more than 60% of total EU production, lodged a complaint with the European Commission on the basis of Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’). Accordingly, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain PVA originating in the People’s Republic of China (OJ 2019 C 256, p. 4).
4        The investigation of dumping and resulting injury covered the period from 1 July 2018 to 30 June 2019 (‘the investigation period’). The examination of trends relevant for the assessment of injury, relating to the information in tables 1 to 11 of the contested regulation, covered the period from 1 January 2016 to the end of the investigation period (recital 39 of the contested regulation).
5        Following a number of written exchanges with the applicants and other undertakings covered by its investigation, on 3 July 2020, the Commission sent the applicants the final disclosure provided for in Article 20 of the basic regulation (‘final disclosure’), in which it proposed an anti-dumping duty, based on their injury margin, of 55.7% for the applicants. Following further written exchanges with the Commission, the applicants submitted their comments on final disclosure on 20 July 2020. On 24 July 2020, the Commission sent the applicants an additional final disclosure, in which it accepted some of the arguments put forward by the applicants and rejected others. On 29 July 2020, the applicants submitted comments on that additional disclosure.
6        By the contested regulation, the Commission imposed a definitive anti-dumping duty on imports of certain PVA originating in China and established that the rate of the definitive anti-dumping duty applicable to the net free-at-Union-frontier price, before duty, was to be 55.7% for the applicants.
7        In calculating the normal value of the products manufactured by the applicants, the Commission did not rely on the general rule laid down in the first subparagraph of Article 2(1) of the basic regulation, according to which 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’. It applied Article 2(6a) of that regulation, a provision that was introduced pursuant to Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 amending the basic regulation and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union (OJ 2017 L 338, p. 1) (recitals 86 and 87 of the contested regulation).
8        Article 2(6a) of the basic regulation provides as follows:
‘6a(a)      In case it is determined, when applying this or any other relevant provision of this Regulation, that it is not appropriate to use domestic prices and costs in the exporting country due to the existence in that country of significant distortions within the meaning of point (b), the normal value shall be constructed exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks, subject to the following rules.
The sources the Commission may use include:
–        corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant data are readily available; where there is more than one such country, preference shall be given, where appropriate, to countries with an adequate level of social and environmental protection;
–        if it considers appropriate, undistorted international prices, costs, or benchmarks; or
–        domestic costs, but only to the extent that they are positively established not to be distorted, on the basis of accurate and appropriate evidence, including in the framework of the provisions on interested parties in point (c).
Without prejudice to Article 17, that assessment shall be done for each exporter and producer separately.
The constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and for profits.
(b)      Significant distortions are those distortions which occur when reported prices or costs, including the costs of raw materials and energy, are not the result of free market forces because they are affected by substantial government intervention. In assessing the existence of significant distortions regard shall be had, inter alia, to the potential impact of one or more of the following elements:
–        the market in question being served to a significant extent by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country;
–        state presence in firms allowing the state to interfere with respect to prices or costs;
–        public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces;
–        the lack, discriminatory application or inadequate enforcement of bankruptcy, corporate or property laws;
–        wage costs being distorted;
–        access to finance granted by institutions which implement public policy objectives or otherwise not acting independently of the state.
(c)      Where the Commission has well-founded indications of the possible existence of significant distortions as referred to in point (b) in a certain country or a certain sector in that country, and where appropriate for the effective application of this Regulation, the Commission shall produce, make public and regularly update a report describing the market circumstances referred to in point (b) in that country or sector. Such reports and the evidence on which they are based shall be placed on the file of any investigation relating to that country or sector. Interested parties shall have ample opportunity to rebut, supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. In assessing the existence of significant distortions, the Commission shall take into account all the relevant evidence that is on the investigation file.’
9        In the contested regulation, having found, in particular on the basis of the country report concerning China of 20 December 2017 which it had published pursuant to Article 2(6a)(c) of the basic regulation, that there were ‘significant distortions’, within the meaning of Article 2(6a)(b) of that regulation, in that country (recitals 91 and 171 of the contested regulation), the Commission constructed the normal value in accordance with the method laid down in the first indent of the second subparagraph of Article 2(6a)(a) of the basic regulation. For that purpose, it chose Türkiye as a representative country (recitals 172 and 222 of the contested regulation). In addition, in accordance with the final subparagraph of Article 2(6a)(a) of the basic regulation, the Commission included in the normal value what it considered to be an undistorted and reasonable amount for administrative, selling and general costs (‘SG&A costs’) and for profits (recital 87 of the contested regulation).
10      When comparing the normal value of the products manufactured by the applicants with their export price, the Commission made two adjustments under Article 2(10)(b) and (i) of the basic regulation. First, it increased the normal value ‘for the difference in indirect taxes between export sales from [China] to the Union and the normal value where indirect taxes such as [value added tax] [had] been excluded’ (recital 388 of the contested regulation). Secondly, it reduced the export price of PVA produced by Mengwei and sold in the European Union by Wanwei, which had to be considered not as an internal sales department, but rather as a trader (recitals 358 and 385 of the contested regulation). Furthermore, the Commission also made downward adjustments to the export price, deducting insurance costs, transport, handling and loading expenses, credit costs and bank charges (‘the costs at issue’) in order to reduce the export price to an ex-works level (recitals 313, 314 and 357 of the contested regulation).
11      When determining the injury allegedly suffered by the Union industry, pursuant to Article 3(2), (3) and (6) of the basic regulation, the Commission analysed price undercutting. For that purpose, first, it based its conclusion on its findings that the PVA market was not divided into two distinct segments (recitals 61 to 64 of the contested regulation). Secondly, it used in particular a method consisting of comparing import prices and Union industry sales prices by product type, although it did not find a perfect match for some of them (recitals 432 and 433 of the contested regulation).
Forms of order sought
12      The applicants claim that the Court should:
–        annul the contested regulation in so far as it concerns them;
–        order the Commission to pay the costs.
13      Wegochem Europe BV (‘Wegochem’), intervening in support of the applicants, claims that the Court should:
–        annul the contested regulation in so far as it concerns the applicants;
–        order the Commission to pay the costs, including those incurred by Wegochem.
14      The Commission, supported by the European Parliament, the Council of the European Union, Kuraray and Sekisui Specialty Chemicals Europe SL (‘Sekisui’), contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
15      In support of the action, the applicants rely on five pleas in law, the first alleging that the application of Article 2(6a) of the basic regulation is inconsistent with the obligations arising from World Trade Organisation (WTO) law; the second alleging infringement of Article 2(6a)(a) of the basic regulation on account of manifest errors of assessment in the choice of representative country; the third alleging infringement of Article 2(10) of the basic regulation and manifest error of assessment; the fourth alleging infringement of Article 3(2) and (3) of the basic regulation when establishing price undercutting, and infringement of Article 3(6) of that regulation; and the fifth alleging infringement of the rights of the defence.
First plea in law, alleging that the application of Article 2(6a) of the basic regulation is inconsistent with the obligations arising from WTO law
16      The applicants submit that, in the contested regulation, the Commission’s application of Article 2(6a) of the basic regulation was not in conformity with 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’), as interpreted by the decisions of the WTO’s Dispute Settlement Body (DSB). The applicants acknowledge that the anti-dumping agreement does not have direct effect, but argue that, given the commonality between that agreement and the basic regulation, that fact does not affect the obligation, which the Commission infringed in this case, to interpret the abovementioned provision of the basic regulation in a manner consistent with WTO law, including the decisions of the DSB.
17      The applicants make clear that the present plea cannot be regarded as a plea of illegality against Article 2(6a) of the basic regulation. They do not challenge that provision as such, but the Commission’s application of it in the contested regulation. The applicants state that it is possible to interpret Article 2(6a) of the basic regulation in a manner that is consistent with WTO law, without such interpretation necessarily being contra legem or leading to that provision being deprived of its substance.
18      The Commission, supported by the Parliament, the Council, Kuraray and Sekisui, disputes the applicants’ arguments.
19      It must be recalled that, by virtue of Article 216(2) TFEU, where international agreements are concluded by the European Union they are binding upon its institutions and, consequently, they prevail over acts of the European Union. Therefore, secondary EU legislation must be interpreted, as far as possible, in a manner consistent with those agreements, in particular where such legislation is intended specifically to give effect to an international agreement concluded by the European Union (see, to that effect, judgments of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraph 57 and the case-law cited; of 18 March 2014, Z., C‑363/12, EU:C:2014:159, paragraphs 71 and 72 and the case-law cited; and of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 31 and the case-law cited).
20      According to recital 3 of the basic regulation, in order to ensure a proper and transparent application of the rules of the anti-dumping agreement, the language of that agreement should be reflected in EU legislation to the best extent possible. The general international law principle of compliance with treaty commitments (pacta sunt servanda), laid down in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331), means that the Courts of the European Union must, for the purposes of interpreting and applying the anti-dumping agreement, take account of the decisions of the DSB interpreting the provisions of that agreement (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 30, 32 and 33 and the case-law cited).
21      However, as shown by the use in the case-law referred to in paragraph 19 above of the expression ‘as far as possible’, such case-law cannot be applied in the case of a provision whose meaning is clear and unambiguous and which therefore requires no interpretation. If that were so, the principle that secondary EU law must be interpreted in conformity with EU law would serve as the basis for an interpretation of that provision contra legem, which cannot be permitted (see judgment of 13 July 2018, Confédération nationale du Crédit mutuel v ECB, T‑751/16, EU:T:2018:475, paragraph 34 and the case-law cited; see also, to that effect, judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 151).
22      Moreover, it must be noted that the consistent interpretation of acts of the EU institutions in the light of provisions of an international agreement to which the European Union is a party, as defined by the case-law recalled in paragraphs 19 to 21 above, must not be confused with a review of the legality of those acts.
23      According to settled case-law, the provisions of an international agreement can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise. It is only when both those conditions are met that such provisions may be relied upon before the Courts of the European Union as a criterion in order to assess the legality of an EU act (see judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 37 and the case-law cited).
24      In the present case, since the applicants have declared that they are not raising a plea of illegality and, in any event, they have neither argued nor, a fortiori, demonstrated that the conditions laid down by the case-law referred to in paragraph 23 above are satisfied, they must, if the Court is to be able to uphold the present plea, establish that Article 2(6a) of the basic regulation lacks clarity or contains ambiguities that would have to be resolved by being interpreted in a manner consistent with those rules, and that that interpretation is not contra legem.
25      It must be noted that the applicants do not argue that the text of Article 2(6a) of the basic regulation is ambiguous.
26      However, in the first place, the applicants submit that, in order for Article 2(6a) of the basic regulation to be applied in a manner consistent with WTO law, it must be interpreted as meaning that, of the three sources of information referred to in Article 2(6a)(a) of that regulation, only the last – using the domestic costs in the exporting country – must be accepted.
27      It should be borne in mind that, according to settled case-law, for the purposes of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgment of 2 July 2020, Magistrat der Stadt Wien (European hamster), C‑477/19, EU:C:2020:517, paragraph 23 and the case-law cited).
28      As it is, the interpretation of Article 2(6a) of the basic regulation put forward by the applicants effectively excludes the first two sources of information envisaged by Article 2(6a)(a) of that regulation and gives the third option a broad scope, in the sense that it should be applied even if it has not been demonstrated that the relevant costs are undistorted.
29      First, the interpretation put forward by the applicants cannot be based on the wording of the provision concerned, which lists three options, the third of which is subject to a specific condition. It follows from the use of the term ‘include’ that those three options are not exhaustive, and therefore that the Commission could use sources of information other than those covered by those three options. However, the discretion which the legislature gave the Commission with regard to the use of supplementary sources of information does not mean that the Commission can use a fourth source that is the same as the third apart from there being no need to satisfy the condition that it must be proved that the domestic costs in the exporting country are not distorted.
30      Nor, furthermore, is that interpretation supported by the context in which Article 2(6a) of the basic regulation occurs. That provision introduces specific rules that are distinct from those arising from other paragraphs of Article 2 of the basic regulation, in that they apply to cases in which there are significant distortions in the domestic market of the exporting country. Therefore, the words ‘when applying this or any other relevant provision of this Regulation’ in the first subparagraph of Article 2(6a)(a) of the basic regulation do not mean that that provision must, in all cases, be interpreted in such a way as to be consistent with the provisions of the anti-dumping agreement that correspond to other provisions of Article 2 of the basic regulation.
31      Lastly, as regards the objectives of Article 2(6a) of the basic regulation, it must be noted that the objective of that provision is to prevent data relating to prices and costs in the exporting country that would be distorted by the significant distortions that exist in the domestic market of that country from being used for the purposes of an anti-dumping investigation. Provision is thus made for data relating to an appropriate representative third country, or for international data, or for domestic costs in the exporting country to be used, provided that it is demonstrated that these are not distorted.
32      Consequently, it must be held that, by their argument, which is summarised in paragraph 26 above, the applicants are proposing an interpretation contra legem of Article 2(6a) of the basic regulation, which cannot be adopted.
33      In the second place, the applicants maintain that Article 2(6a) of the basic regulation must be interpreted in a manner consistent with Article 2.2 and Article 2.2.1.1 of the anti-dumping agreement.
34      First, according to the applicants, instead of permitting a calculation on the basis of the prices in the exporting country, Article 2.2 of the anti-dumping agreement permits the construction of normal value only in three situations, one of which is when a particular market situation (‘PMS’) exists in the exporting country.
35      The applicants state that the concept of a ‘PMS’, as interpreted by the decisions of the DSB, does not give unlimited freedom to the authority conducting an anti-dumping investigation (‘the competent authority’), but covers only situations in which comparability between the normal value and the export price is affected. However, a situation characterised by significant distortions following substantial State interventions in the exporting country’s market does not, by itself, mean that the costs incurred by the exporting producers of that country may be disregarded when calculating the normal value and the costs incurred by third-country producers used instead. The Commission has the burden of proving the link between that market situation and price comparability. In this case, however, the applicants submit that that proof has not been provided.
36      Secondly, according to the applicants, even if a distortion of input costs were to give rise to a PMS, the method used by the Commission in this case, which imposes an obligation to use input costs from sources not affected by any distortions and to disregard the data on the costs of production reflected in the Chinese exporting producers’ records, is nonetheless inconsistent with Article 2.2.1.1 of the anti-dumping agreement, as interpreted by the decisions of the DSB.
37      It should be recalled that, as noted in paragraph 22 above, the applicants’ reliance on the principle of consistent interpretation cannot lead to the Court’s reviewing the legality of Article 2(6a) of the basic regulation in the light of WTO rules without any need to demonstrate that the conditions laid down by the case-law for the exercise of that review are satisfied.
38      Furthermore, it follows from paragraph 19 above that, in order for the principle of consistent interpretation to be fully applicable, the provisions of EU law at issue must be intended to give effect to WTO rules.
39      It should be recalled that, by Regulation 2017/2321, the EU legislature amended Article 2 of the basic regulation by inserting paragraph 6a and amending paragraph 7.
40      According to the case-law, Article 2(7) of the basic regulation, in the version prior to amendment by Regulation 2017/2321, was the expression of the EU legislature’s intention to adopt, in that area, an approach specific to the EU legal order by establishing a special regime of detailed rules for the calculation of normal value for imports from non-market economy countries. Consequently, it has been held that that provision could not be considered to be a measure intended to ensure the implementation in the EU legal order of a particular obligation assumed in the context of the WTO agreements, which did not lay down rules for the calculation of normal value for non-market economy countries (judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission, C‑718/20 P, EU:C:2022:362, paragraph 88; see also, to that effect and by analogy, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 47 to 50). This Court has stated that, in so far as that provision laid down rules concerning the calculation of normal value that had no equivalents in the WTO agreements, the Commission was not required to interpret it in accordance with the obligations of the European Union in the context of the WTO. If that had been the case, the Commission would have been deprived of the discretion which the legislature had intended to grant it (see, to that effect and by analogy, judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraphs 111 to 113).
41      It must be held that those principles are applicable, by analogy, to Article 2(6a) of the basic regulation.
42      In fact that provision establishes a special regime laying down rules for determining normal value in the case of exports from countries whose domestic market has been shown to have significant distortions, as defined in that provision. WTO law does not, however, include specific rules for calculating normal value in such situations.
43      Moreover, it is true that recital 2 of Regulation 2017/2321 states that that regulation ‘is without prejudice to establishing whether or not any WTO Member is a market economy or to the terms and conditions set out in protocols and other instruments in accordance with which countries have acceded to the [Agreement establishing the WTO]’, which include the Protocol on the Accession of the People’s Republic of China to the WTO (‘the accession protocol’).
44      It is also true that paragraph 15 of the accession protocol contains specific rules for the application of the anti-dumping agreement to imports from China and provides for a transitional period, expiring no later than 15 years after the People’s Republic of China has become a member of the WTO, that is to say, 11 December 2016.
45      However, the presence of recital 2 in the preamble to Regulation 2017/2321 does not lead to the conclusion that, by that regulation, the EU legislature wished to create a mechanism that would give effect to paragraph 15 of the accession protocol.
46      In any event, assuming that, after the expiry of the transitional period provided for, paragraph 15 of the accession protocol precludes the use, in the context of an anti-dumping investigation, of a method intended to determine the normal value that is not based on Chinese prices or costs for the industry under investigation, it would follow that Article 2(6a) of the basic regulation would not be compatible with that paragraph.
47      Given that the applicants have not raised a plea of illegality in respect of Article 2(6a) of the basic regulation in the light of WTO rules, that potential incompatibility would merely confirm that it is impossible to interpret that provision in the manner suggested by the applicants.
48      Consequently, it must be concluded that the necessary conditions for the principle of consistent interpretation to be applicable to Article 2(6a) of the basic regulation in the light of WTO rules are not satisfied.
49      Accordingly, the first plea in law must be rejected.
The Commission’s request that the second and third pleas in law be rejected as ineffective
50      The Commission requests that the second and third pleas be rejected as ineffective because they relate to the dumping margin, set at 193.2% in the contested regulation, whereas the anti-dumping duty applicable to the applicants corresponds to the injury margin, set at 55.7% in the contested regulation. It asserts that the applicants, which bear the burden of proof, have not shown that, if the pleas in question were well founded, the difference between the dumping margin and the injury margin would be reduced below zero.
51      The Commission also submits that the applicants are required to demonstrate the existence of a vested and current personal interest which cannot concern a future and hypothetical situation.
52      In support of their contention that the pleas in question are effective, first, the applicants rely on the case-law relating to infringement of the rights of the defence, according to which an applicant cannot be required to show that the Commission’s decision would have been different in content but simply that such a possibility cannot be totally ruled out (judgments of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraph 94, and of 11 July 2013, Hangzhou Duralamp Electronics v Council, T‑459/07, not published, EU:T:2013:369, paragraphs 110 and 111). According to the applicants, that case-law is applicable to the present case as they find themselves in the predicament of being unable to demonstrate the numerical counterfactual. However, they accept that, in the present case, the probability of a reduction in the dumping margin to a level below the injury margin is lower than it was when the difference between those margins had been smaller.
53      Secondly, the applicants claim that they have an interest in having the Commission correctly calculate the dumping margin for possible reviews of the measures imposed by the contested regulation, for other possible anti-dumping proceedings against them or for possible applications made by them for refunds of the anti-dumping duties paid. Those scenarios are not future and hypothetical situations.
54      Thirdly, the applicants state that the anti-dumping duty applicable to another Chinese exporting producer, which was based not on that exporting producer’s injury margin but on its dumping margin, was calculated using data relating to the normal value of the products manufactured by the applicants. The applicants maintain that they should not bear the burden of being the indirect root cause for the dumping margin of other exporting producers to be overstated.
55      The Court recalls that the second subparagraph of Article 9(4) of the basic regulation is worded as follows:
‘The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry. …’
56      According to the case-law, that provision lays down the ‘lesser duty’ rule (‘the lesser duty rule’), pursuant to which the injury margin should be used to determine the rate of anti-dumping duty where the dumping margin is higher than the injury margin, and vice versa (see, to that effect, judgments of 4 March 2010, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06, EU:T:2010:70, paragraph 94 and the case-law cited, and of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 49 and the case-law cited).
57      The objective of the lesser duty rule is, inter alia, to prevent the anti-dumping duty imposed from going beyond what is necessary to remove the injury caused by the dumped imports. Thus, the adoption of anti-dumping duties is a protective and preventive measure against unfair competition resulting from dumping practices, not a penalty or a measure giving a competitive advantage to the Union industry (see, to that effect, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 50 and the case-law cited).
58      In the present case, in recital 658 of the contested regulation, the Commission ‘compared the injury margins and the dumping margins’ and stated that ‘the amount of the [anti-dumping] duties should be set at the level of the lower of the dumping and the injury margins’.
59      Recital 659 of that regulation contains the following table:
Company
Dumping margin
Injury margin
Definitive anti-dumping duty
Shuangxin Group [T‑763/20]
115.6%
72.9%
72.9%
Sinopec Group [T‑762/20]
17.3%
57.6%
17.3%
Wan Wei Group [T‑764/20]
193.2%
55.7%
55.7%
Other cooperating companies
80.4%
57.9%
57.9%
All other companies
193.2%
72.9%
72.9%
60      While the Commission argues that the pleas in question are ineffective in so far as the applicants have failed to prove that, if those pleas were well founded, the dumping margin would drop below the injury margin with the result that the anti-dumping duty would have to be reduced, the applicants counter not only by invoking the burden of proof but also by arguing that they have an interest in raising those pleas, leading the Commission to claim that that interest was not made out in the present case.
61      According to settled case-law, in an action for annulment, a plea in law which, even if it were well founded, would be incapable of bringing about the annulment which the applicant seeks, is considered ineffective (order of 26 February 2013, Castiglioni v Commission, T‑591/10, not published, EU:T:2013:94, paragraph 45, and judgment of 15 January 2015, France v Commission, T‑1/12, EU:T:2015:17, paragraph 73; see also, to that effect, judgment of 21 September 2000, EFMA v Council, C‑46/98 P, EU:C:2000:474, paragraph 38).
62      Furthermore, a plea for annulment is inadmissible on the ground of lack of interest in bringing proceedings when, even if that plea were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (see order of 14 July 2020, Shindler and Others v Commission, T‑627/19, EU:T:2020:335, paragraph 47 and the case-law cited).
63      Those are two separate issues (see, to that effect, judgments of 21 September 2000, EFMA v Council, C‑46/98 P, EU:C:2000:474, paragraph 38, and of 4 May 2022, CRIA and CCCMC v Commission, T‑30/19, EU:T:2022:266, paragraph 92 (not published)).
64      The view must be taken that where, in an action for annulment of a regulation imposing anti-dumping duties in which the EU institutions have applied the lesser duty rule, the applicant raises pleas or parts of pleas challenging the highest margin between the dumping margin and the injury margin, the question which arises is whether those pleas or parts are effective (see, to that effect, judgments of 4 March 2010, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06, EU:T:2010:70, paragraphs 94 to 98, and of 21 March 2012, Fiskeri og Havbruksnæringens Landsforening and Others v Council, T‑115/06, not published, EU:T:2012:136, paragraphs 45 to 47).
65      Accordingly, it must be held that the parties’ arguments concerning whether the applicants have an interest in raising the pleas in question are irrelevant.
66      As to whether the pleas in question are effective, in response to written questions put by the Court, the Commission maintained its position that the applicants bore the burden of demonstrating that their pleas could affect the outcome of the investigation, but it also considered the impact that the pleas in question, if well founded, might have on the dumping margin. It concludes that the consequences of those pleas being well founded would clearly be insufficient to bring the dumping margin below the injury margin.
67      The applicants acknowledged that, on the basis of those calculations, the reduction in the dumping margin that may result from those pleas being well founded was ‘potentially insufficient’ for the dumping margin to drop below the injury margin. They did not dispute any of the figures in the Commission’s calculations.
68      In those circumstances, in view of the fact that the difference between the dumping margin and the injury margin, as determined in the contested regulation (see paragraph 59 above), is considerable, standing as it does at 137.5 percentage points, in the Court’s view, it cannot be accepted that the pleas in question, if well founded, might bring to light errors the removal of which, in the implementation of the judgment to be delivered, could lead to a situation whereby the dumping margin would fall below the injury margin.
69      The pleas in question must therefore be rejected as ineffective.
Fourth plea in law, alleging infringement of Article 3(2) and (3) of the basic regulation when establishing price undercutting, and infringement of Article 3(6) of that regulation
70      The fourth plea is in three parts, all relating to infringement of Article 3(2) and (3) of the basic regulation. More specifically, those parts concern, first, failure to conduct a segmented price undercutting analysis; secondly, failure to make adjustments to account for quality differences between imported PVA and PVA produced in the European Union; and, thirdly, failure to establish price undercutting for the relevant product as a whole. The applicants also rely on the consequent infringement of Article 3(6) of that regulation.
71      Since, in addition to challenging the merits of that plea, the Commission contends that the plea is ineffective, that issue must be examined first of all.
Whether the fourth plea in law is effective
72      The definition of ineffectiveness of a plea is set out in paragraph 61 above.
73      The Commission contends that, in the contested regulation, in addition to examining price undercutting by imports, it found that there was price suppression in respect of PVA sold by the Union industry, as is apparent from recitals 460 to 462, 473 and 490 of that regulation. The applicants had failed to address how its suppression findings would be insufficient to support its conclusion that the dumped imports were causing injury to the Union industry. Thus, the fourth plea, by which the applicants challenge the examination of price undercutting by imports, is, it argues, ineffective.
74      The applicants respond that simple statements, not supported by evidence, concerning price suppression cannot remedy the infringements of Article 3(2) and (3) of the basic regulation invoked by the present plea.
75      It should be recalled that the terms of the relevant provisions of Article 3 of the basic regulation are as follows:
‘1.      Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.
2.      A determination of injury shall be based on positive evidence and shall involve an objective examination of:
(a)      the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and
(b)      the consequent impact of those imports on the Union industry.
3.      With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.
…
5.      The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry …
6.      It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.’
76      The provisions of Article 3(2), (3) (5) and (6) of the basic regulation are highly similar or identical to those of Article 3.1, Article 3.2 and Article 3.5 of the anti-dumping agreement. Therefore, the principles referred to in paragraphs 19 to 21 apply.
77      According to the Report of the Appellate Body, China – Countervailing and anti-dumping duties on grain oriented flat-rolled electrical steel from the United States (WT/DS 414/AB/R), adopted by the DSB on 16 November 2012 (paragraph 137), the elements relevant to the consideration of significant price undercutting may differ from those relevant to the consideration of significant price depression and suppression. Thus, even if prices of subject imports do not significantly undercut those of like domestic products, subject imports could still have a price-depressing or price-suppressing effect on domestic prices.
78      Similarly, it is apparent from the Panel Report, Korea – Anti-dumping duties on pneumatic valves from Japan (WT/DS 504/R), adopted by the DSB on 30 September 2019 (paragraph 7.299), that, while the existence of price undercutting by imports is frequently relied on as an element suggesting that the effect of dumped imports is depression or suppression of prices in the importing country industry, the competent authority may properly consider that the effect of dumped imports is price depression or price suppression notwithstanding the absence of undercutting.
79      In the present case, the parties are agreed that, in principle, suppression of Union industry prices can occur even if there is no price undercutting by imports.
80      However, whereas, according to the Commission, the findings in the contested regulation concerning the existence of Union industry price suppression are independent of those concerning price undercutting by imports, the applicants argue that that suppression is a consequence of that undercutting.
81      It should be recalled that recital 490 of the contested regulation reads as follows:
‘The analysis of the injury indicators in recitals (398) to (478) shows that the economic situation of the Union industry worsened during the period considered and this coincided with a significant increase of dumped imports from the country concerned, which were found to undercut the Union industry prices during the investigation period and causing significant price suppression, as the Union industry was not able to increase its prices in line with the increase of cost of production.’
82      On the basis of the sole conjunction ‘and’ which appears, in some language versions of the contested regulation, between ‘undercut the Union industry prices during the investigation period’ and ‘causing significant price suppression’, recital 490 of that regulation might be read as meaning that the significant increase in Chinese imports resulted, on the one hand, in price undercutting and, on the other, in a price suppression that is independent of the price undercutting.
83      It is appropriate nevertheless to determine whether the contested regulation contains an analysis of the link between that price suppression and the increase in imports that may be based on elements other than those relating to price undercutting.
84      In that respect, the Commission invokes recitals 460 to 462 and 473 of the contested regulation.
85      It is apparent from recitals 460 to 462 and 473 of the contested regulation that the Commission studied the evolution of Union industry sales prices and found that those prices had increased by 14% during the period considered, whereas the unit cost of production had increased by 24%, because of the increase in the price of the principal raw material used. It noted that the price pressure operated by the Chinese imports had prevented the Union industry from raising its prices further and offsetting that increase.
86      It follows that recitals 460 to 462 and 473 of the contested regulation cannot be interpreted as meaning that the suppression of Union industry prices arises from factors other than the undercutting of prices by imports. The reason why, notwithstanding the significant increase in the unit cost of production, the Union industry did not increase its prices commensurately is the pressure exerted by the dumped imports. That pressure flows from the fact that the Chinese exporting producers’ prices are lower than those of the Union industry, which reflects the existence of price undercutting by imports.
87      Furthermore, the Commission is wrong to rely on paragraphs 95 to 99 of the judgment of 14 September 2022, Methanol Holdings (Trinidad) v Commission (T‑744/19, under appeal, EU:T:2022:558), and paragraphs 257 to 261 of the judgment of 14 September 2022, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission (T‑865/19, not published, under appeal, EU:T:2022:559), in support of the contention that the applicants’ arguments concerning its price undercutting analysis are ineffective. As regards the first of those judgments, the issue dealt with in the paragraphs on which the Commission relies concerned the admissibility of a complaint raised in the reply, whereas in the present case the fourth plea was raised in the application. Moreover, in both judgments, in the paragraphs immediately following those on which the Commission relies, the Court pointed out that there was a link between, on the one hand, the price undercutting and, on the other, the price depression and suppression. Thus, the Court did not attribute any independent value to the price depression or suppression in its finding of injury to the Union industry.
88      In the light of the foregoing, it must be concluded that, contrary to the Commission’s contention, the fourth plea in law is effective, and the question of its merits must therefore be examined.
The merits of the fourth plea in law
–       First part
89      The applicants submit that, contrary to the Commission’s finding in the contested regulation, the PVA market is divided into two segments. The first segment covers high-quality PVA grades, characterised by narrow viscosity and hydrolysis ranges, a low methanol content, a low ash content and a smaller particle size. Those PVA grades are sold at higher prices. The second segment concerns lower-quality grades, characterised by wide viscosity and hydrolysis ranges, a high methanol content, a high ash content and a larger particle size. Those PVA grades are sold at lower prices.
90      The applicants submit that while, in theory, certain industries using lower-quality PVA grades might be able to switch to high-grade PVA, such a switch would not be economically logical. Meanwhile, industries using higher-quality grades of PVA cannot replace them with lower-quality grades.
91      Due to the significant differences in prices and quality between the PVA grades pertaining to the abovementioned first and second market segments, those grades are not directly interchangeable on the demand side.
92      According to the applicants, since the PVA market is divided into the two segments referred to above, the Commission should have taken their existence into consideration in its price undercutting analysis, particularly given that many Chinese producers were primarily producing PVA pertaining to the low market segment, whereas PVA produced in the European Union were usually in the high market segment.
93      In support of their arguments, the applicants rely, inter alia, on the Report of the Appellate Body, China – Measures imposing anti-dumping duties on high-performance stainless-steel seamless tubes (‘HP-SSST’) from Japan (WT/DS 454/AB/R), adopted by the DSB on 28 October 2015 (paragraph 5.181) (‘the HP-SSST report’).
94      Following delivery of the judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38), the applicants, in response to a written question from the General Court, explained their arguments in the light of the guidance stemming from that judgment, by which the Court of Justice set aside the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), which they had invoked in their pleadings. In their view, the present case entails the three exceptional circumstances, as set out in that judgment of the Court of Justice, in which the Commission cannot simply examine price undercutting on the basis of product control numbers (‘PCN’) but is required to carry out an analysis by market segment. First, according to the applicants, the PVA market is divided into two distinct segments; secondly, PVA prices are significantly different depending on the segment; and, thirdly, Union industry sales of PVA products are concentrated in the high-quality PVA segment, whereas imports from China are concentrated in the lower-quality segment.
95      The Commission, supported by Kuraray and by Sekisui, disputes the applicants’ arguments.
96      The relevant provisions of Article 3 of the basic regulation were recalled in paragraph 75 above.
97      As a preliminary matter, it must be borne in mind that, according to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine. That broad discretion covers, inter alia, the determination of injury caused to the Union industry in an anti-dumping proceeding. The judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 35 and 36 and the case-law cited).
98      In addition, the General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 59 and the case-law cited).
99      As regards, more specifically, the calculation of the price undercutting of imports, it follows from the case-law that that calculation is carried out, in accordance with Article 3(2) and (3) of the basic regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports and it is used, more broadly, to assess that injury and to determine the injury margin, namely the injury elimination level (see, by analogy, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176).
100    The basic regulation does not contain any definition of the concept of ‘price undercutting’ and does not lay down any method for the calculation of that concept (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 73; see also, by analogy, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 175).
101    However, it is apparent from the very wording of Article 3(3) of the basic regulation that the method used to determine possible price undercutting must, in principle, be applied at the level of the ‘like product’, within the meaning of Article 1(4) of that regulation, even though that product may consist of different product types falling within several market segments (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 74 and the case-law cited).
102    Accordingly, the basic regulation does not, in principle, impose any obligation on the Commission to carry out an analysis of the existence of price undercutting at a level other than that of the like product (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 75).
103    That interpretation is confirmed by paragraph 5.180 of the HP-SSST report, relied on by the applicants, according to which the competent authority is not required, under Article 3.2 of the anti-dumping agreement, to establish price undercutting for each of the product types under investigation or for the entire range of products constituting the like domestic product (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 76).
104    However, as confirmed in paragraph 5.180 of the HP-SSST report, since, under Article 3(2) of the basic regulation, the Commission is required to carry out an ‘objective examination’ of the effect of the dumped imports on prices in the Union industry for like products, it is required to take account in its analysis of price undercutting of all the relevant positive evidence, including, where applicable, evidence relating to the various market segments of the product under consideration (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 77).
105    It is also apparent from the case-law that examination of price undercutting on the basis of a method consisting in a PCN-by-PCN comparison (‘the PCN method’) does enable, to a certain extent, account to be taken of the possible segmentation of the market for the product under consideration (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 106, 113 and 114).
106    The fact remains that, in order to ensure that the analysis of price undercutting is objective, the Commission may, in certain circumstances, be required to carry out such an analysis at the level of the market segments of the product in question, even though the broad discretion enjoyed by that institution, in particular in determining the existence of injury (see paragraph 97 above), extends, at the very least, to decisions on the choice of method of analysis, to the data and evidence to be gathered, to the method of calculation to be used in order to determine the undercutting margin and to the interpretation and evaluation of the data gathered (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 78).
107    Accordingly, the Commission may, in certain exceptional circumstances, be required to carry out an additional analysis of price undercutting consisting of a comparison of the prices in each segment in addition to the application of the PCN method (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 111).
108    Those exceptional circumstances relate to the existence both of a clear segmentation of the market for the product under consideration involving significant variations between market segments (‘the first condition’) and a situation characterised by a high concentration of domestic sales and dumped imports in separate segments (‘the second condition’) (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 79 to 81, 110 and 111).
109    The arguments put forward by the applicants in support of the present part of the fourth plea must be examined in the light of those considerations.
110    In the contested regulation, the Commission stated as follows:
‘(60)      The information collected during the investigation also showed that some of these grades (sold both by the Union industry and exporting producers) have a broad range of application and, generally, have a lower price. Other more specialised grades designed for applications with narrow specifications … are on average more expensive. These grades are also sold by Union and exporting producers.
(61)      However, despite a large number of grades, the Commission found that there is no defined segments in the PVA market. Different users can source a number of PVA grades, depending on their required technical specifications. For some users the ash content is the most important element, for others the viscosity, and some are able to use mostly any of the specification. Each user industry can use a different set of PVA grades interchangeably. Even though certain users … are more limited in terms of the number of grades they can use, their grade range still overlaps with other type of users, which are able to source a wider range of grades.
(62)      For the reasons above, the Commission concluded that all grades compete with each other, at least to a certain extent, and therefore a segment analysis was not warranted nor appropriate in this case …
(64)      The analysis carried out by the Commission confirmed that the different grades, as explained in recital (61), are interchangeable between each other, at least to a certain extent. Even if it is true that certain users can source only a limited set of grades for their application, these grades do not pertain exclusively to one user’s downstream industry but overlap with the grades sourced by other downstream applications. Moreover, the investigation revealed that the Chinese exporting producers supply grades for all the four main applications of PVA and compete in full with the grades sold by the Union industry.
…
(78)      [The] various grades of PVA share the basic characteristics and their uses are to a large extent identical and interchangeable. The sole ash or methanol content levels do not define, alone, the applications or the price of the product concerned as it is the combination with the other relevant characteristics, such as viscosity and hydrolysis, which defines the grade characteristics, its possible end use and the selling price.
(79)      The evidence collected in the investigation revealed that, while the average price difference between the PVA grades with “low ash content” versus those with “standard ash content” is about 10%. However, PVA prices can vary up to 40% between PVA grades with the same ash content. In addition, certain allegedly cheaper grades with a “standard” ash content can be up to 27% more expensive than those with “low ash content” grades. Therefore it cannot be concluded, as the interested parties claimed, that the Union market was divided into high-quality PVA (produced by the Union industry) and low-quality PVA (imported from [China]) based on the ash and methanol content, neither that this alleged division is reflected in the prices and the production cost. On the contrary, … several grades with alleged “standard” specifications are also in competition with alleged “high-end” grades of the like product.’
111    It follows that the Commission ruled out the existence of any clear segmentation of the PVA market and a high concentration of Union industry sales and dumped imports in two distinct segments.
112    In so far as the Commission was required to carry out an objective examination of price undercutting (see paragraphs 104 and 106 above), it is necessary to ascertain whether its findings are sufficiently supported by the documents in the case file of the procedure which led to the adoption of the contested regulation.
113    In that regard, it should be noted that a regulation imposing anti-dumping duties must contain the essential part of the Commission’s reasoning, but need not include specific reasons for each of the numerous factual arguments relied on by the interested parties. The Court may therefore ask the Commission for additional explanations and take them into account when carrying out its review, provided that they are based on material in the Commission’s file (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 92, 93, 95 and 96 and the case-law cited).
114    In the present case, the Court asked the Commission to specify the elements of the case file which enabled it to rule out both the existence of a segmented market and the concentration of imports and Union industry sales in separate segments.
115    On that point, the Commission referred to the replies of PVA users to its request for information about their PVA purchases by PCN and to the information supplied to it by Kuraray.
116    As regards the lack of clear segmentation, the Commission produced an example of its request for information, although it did not produce the replies received, which were described as confidential. It also lodged an extract from Kuraray’s website. At the hearing, the Commission stated that an earlier version of that extract was included in the case file of the procedure which led to the adoption of the contested regulation, and this was not contradicted by the applicants.
117    It must be stated that the extract of Kuraray’s website shows that there are several grades of PVA whose main uses are both in industries that would use high-quality PVA and in industries that would use lower-quality PVA. As the Commission observes, several PVA grades used in the paper and adhesives industries are also used in the emulsion polymerisation and polyvinyl butyral production industries. Consequently, that extract serves to confirm that the PVA market is not clearly segmented.
118    Furthermore, it should be noted that, in so far as the first condition relates to the existence of clear segmentation of the product at issue, in order to rule out the possibility of that condition being satisfied, contrary to the applicants’ contention, it is not necessary that all users should be able to purchase all PVA grades and that those grades should therefore be completely interchangeable.
119    Thus, it must be held that the first condition is not satisfied in the present case.
120    Accordingly, it is not necessary to rule on the second condition, as it may already be concluded that the Commission was not required to carry out an additional analysis of price undercutting over and above that based on the PCN method.
121    In any event, as regards the second condition, the following must be noted.
122    The case file in the present case includes three tables that were in the case file of the procedure which led to the adoption of the contested regulation, each table relating to one of the three main Chinese exporting producers that cooperated, including the applicants. Displayed in those tables are the quantities of PVA, by PCN, imported into the European Union. However, on grounds of confidentiality, the tables do not show, by PCN, the importance of sales made by Kuraray. A study of the figures in those tables serves to establish that the imports, taken as a whole, cover eight different PCN, in their revised versions, which are not disputed by the applicants, and that the quantities in respect of two of those PCN are equivalent, in each case, to approximately 29% of total imports from those exporting producers, whereas the quantities in respect of six other PCN are, in percentage terms, between 3.24 and 9.54%.
123    Consequently, the imports cannot be considered to represent a high concentration and, therefore, even without the data relating to Kuraray’s sales, it must be held that the second condition is not satisfied.
124    Since the conditions laid down by the case-law recalled in paragraph 108 are not satisfied, it must be concluded that the Commission was not required to carry out an additional analysis of price undercutting over and above that based on the PCN method.
125    In the light of the foregoing considerations, the first part of the fourth plea in law must be rejected.
–       Second part
126    The applicants submit that the Commission did not properly establish price undercutting because, while it made an adjustment of 10% to account for the lower quality, in terms of ash content, of the PVA imported from China compared to the PVA produced in the European Union, it refused to make other adjustments to reflect the other quality differences between those PVA.
127    The Commission, supported by Sekisui, disputes the applicants’ arguments.
128    It should be recalled that the relevant recitals of the contested regulation read as follows:
‘(423)      Price undercutting of the imports was established on the basis of data of the cooperating exporting producers in the country concerned and domestic sales data provided by the Union industry for the period of investigation …
(424)      The price comparison was made on a type-by-type basis for transactions at the same level of trade, and after deduction of deferred discounts. When necessary, the import price of the product concerned imported from [China] was duly adjusted when compared with the comparable product type sold by the Union industry.
(425)      As regards the differences in certain characteristics between the product concerned and the like product … the product types imported from [China] compete with the product types produced and sold by the Union industry. However, as the ash content of the PVA produced and sold by the cooperating exporting producers was overall higher than the ash content of the PVA produced and sold by the Union industry, the Commission considered that an adjustment was warranted to ensure a fair comparison between the Chinese and EU product types on the basis of PCNs. The Commission established the adjustment on the basis of the difference found for PVA imports with high and low ash content from third countries on the basis of information provided by users. The price difference was established at 10%.
(426)      On this basis, an adjustment of 10% was added to the CIF price of the PVA with high ash content sold by the cooperating exporting producers.
…
(429)      Furthermore, as the methanol content and the packing have a negligible effect on the prices …, the Commission concluded that for undercutting purposes it was appropriate to disregard these characteristics.’
129    Before the Court, the Commission explained that, as could be seen from a questionnaire which it had sent to Chinese exporting producers, the PCNs had been established on the basis of five characteristics of PVA, that is to say, their viscosity, their degree of hydrolysis, their ash content, their methanol content and their packaging.
130    It follows that the Commission considered it necessary to apply an upward adjustment of 10% to the prices of certain product types imported from China, which corresponded, in terms of viscosity and degree of hydrolysis, to product types sold by the Union industry, because of differences in ash content, which was higher in the former than in the latter. By contrast, it ruled out the possibility of other adjustments being warranted on the basis of differences in respect of methanol content and packaging.
131    While the applicants do not challenge the merits of the 10% adjustment applied by the Commission because of differences in ash content, they claim that other adjustments were necessary.
132    However, they did not produce any evidence capable of demonstrating that the Commission had made a manifest error of assessment in finding that the differences, in terms of methanol content and packaging, between product types that were comparable in terms of their viscosity and their degree of hydrolysis did not have a significant effect on their prices.
133    Accordingly, the second part of the fourth plea in law must be rejected.
–       Third part
134    The applicants submit that it is apparent from recitals 432 and 433 of the contested regulation and from the information they were able to obtain from the Commission and information provided by other exporting producers that, in its price undercutting analysis, the Commission compared 100% of the PVA imports from China with 82% of the Union industry’s sales of PVA. The Commission found that there was an 82% overlap between the PCNs sold by the Union industry and those sold by the Chinese exporting producers. The Commission thus excluded from its analysis 18% of the sales made by the Union industry. In so doing, the Commission infringed the obligation under Article 3(2) and (3) of the basic regulation to establish price undercutting for the product concerned as a whole.
135    The applicants dispute that the contested regulation can be interpreted as meaning that the Commission compared 100% of the Union industry’s sales with 82% of the sales made by the Chinese exporting producers, and rely for this purpose on the price undercutting calculations in relation to the applicants themselves and to the other exporting producers, from which it may be inferred that 100% of the imports were compared with 82% of the Union industry’s sales. In any event, in their view, even if that portrayal of the facts were accepted, the Commission nevertheless infringed Article 3(2) and (3) of the basic regulation given that it was required to take 100% of the imports into consideration.
136    The Commission, supported by Sekisui, disputes the applicants’ arguments.
137    It should be recalled that recitals 432 and 433 of the contested regulation read as follows:
‘(432)      Wacker and the Chinese exporting producers claimed that 18% of the exports from [China] were not sold by the Union industry since for this quantity no comparable PCNs were found. The parties referred to the judgement [of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691)] in support of their claim that the Commission’s injury analysis was only based on a limited volume of the Union industry’s sales and not the whole like product.
(433)      First, the Commission noted that this judgment is under appeal before the Court of Justice and therefore cannot be taken as authoritative. Second, the basic Regulation does not require the Commission to carry out the price analysis for each product type separately. Rather, the legal requirement is a determination at the level of the like product. While PCNs are used as the starting point for such assessment, it does not mean that different PCNs are not in competition. Thus, the fact that certain PCNs of the Union industry were not compared to imports does not mean that they do not suffer price pressure from the dumped imports. Indeed, the establishment of price undercutting and underselling by first calculating margins at the level of the PCN is only an intermediary and preparatory step of that required price comparison. That step is not legally mandated, but constitutes the standard practice of the Commission. Third, in cases where sampling is applied it is not surprising that there is not a perfect matching between the imports of the sampled exporting producers and the sales of sampled Union industry. This does not necessarily mean that there are no imports of certain types, but that these types were not exported to the Union by the sampled exporting producers during the investigation period. Finally, … the Commission concluded that all PVA grades competed with each other, at least to a certain extent. Therefore, the 18% of the exports of the sampled exporting producers not sold by the Union industry does not constitute a separate category of the product concerned but competes in full with the remaining grades for which a matching was found. Moreover, the PCNs not sold by the Union industry were product types suitable for application in the adhesives, polymerisation and paper sectors, and therefore equivalent and in direct competition with other product types produced and sold by the Union industry for use in the same applications, even if not used for the quantification of price undercutting.’
138    It should be noted that, in recitals 432 and 433 of the contested regulation, the Commission summarised an argument which the applicants had based on the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), before going on to reject it.
139    It must be recalled that, in paragraphs 68 to 75 of the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), the Court held, in essence, that in so far as the Commission had not taken into account, in the analysis of price undercutting, a certain volume of the product under consideration produced by the sampled EU producers, namely 17 of the 66 product types identified, representing 8% of the sales volume of those producers, which were not exported by the sampled Chinese exporting producers, it had failed to take account of all the relevant data in the case at issue, in breach of Article 3(2) and (3) of the basic regulation (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 22).
140    In rejecting the applicants’ argument based on the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), the Commission first of all pointed out, in the first sentence of recital 433 of the contested regulation, that that judgment was under appeal.
141    Next, in the second to ninth sentences of recital 433 of the contested regulation, the Commission defended the merits of its actions in the regulation that was being challenged in the case that gave rise to the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), while also setting out general considerations in relation to the analysis of price undercutting by the PCN method. It is in that context that it stated that ‘certain PCNs of the Union industry [had] not [been] compared to imports’. Accordingly, that part of the sentence cannot be interpreted as an admission by the Commission that, in the present case, it had failed to take account of certain PCNs produced by the Union industry.
142    Lastly, in the 10th to 12th sentences of recital 433 of the contested regulation, the Commission examined the circumstances of the present case. It is apparent from that passage that, first, for 18% of PVA exported to the European Union by the sampled Chinese exporting producers, it had not been possible to find any corresponding product type sold by the Union industry and, secondly, because of the fact that all PVA were in competition with each other to a certain extent, the PVA sold by the Union industry were also competing with the 18% of PVA imported from China.
143    It follows that the Commission associated an imported product type with each product type sold by the Union industry and that, in the case of imported product types that did not match product types sold by the Union industry, it found that a competitive relationship nevertheless existed. In so doing, the Commission carried out the assessment required by Article 3(2) and (3) of the basic regulation, which consists of examining the effect on the Union industry prices of ‘dumped imports’ (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 161) and analysed price undercutting for the product under consideration as a whole.
144    Contrary to the applicants’ contention, that interpretation of recital 433 of the contested regulation is compatible with the explanation given to them by the Commission in the procedure that led to the adoption of the contested regulation, that ‘the matching percentage between the [Union] industry and the sampled Chinese exporting companies is 82%’. While it is apparent from that explanation that a total match could not be established, the Commission’s choice of wording does not make clear whether it was the Union industry or Chinese exporting producers which sold more product types.
145    Furthermore, that interpretation of recital 433 of the contested regulation is not affected by the tables produced by the applicants in the annexes to the reply. Those tables show, for each of the exporting producers sampled, including the applicants, the PCNs in respect of which there is a match between imported product types and those sold by the Union industry. Although, for confidentiality reasons, the tables do not display the quantities sold by the Union industry, by PCN, it cannot be inferred from this that only 82% of Union industry sales were taken into account, as the applicants claim.
146    Therefore, it must be held that the applicants’ argument that the Commission analysed price undercutting without taking account of all PVA sales by the Union industry has no basis in fact.
147    In any event, assuming that the Commission did exclude certain product types sold by the Union industry from the price undercutting analysis, it must be noted that the judgment of 24 September 2019, Hubei Xinyegang Special Tube v Commission (T‑500/17, not published, EU:T:2019:691), was set aside by the Court of Justice, which concluded that the General Court had erred in law in that judgment in holding that, in the context of the analysis of the effects of the dumped imports on the Union industry prices provided for in Article 3(2) and (3) of the basic regulation, and, in particular, in the context of the analysis of price undercutting, the Commission was, in all circumstances, obliged to take account of all the products sold by that industry, including the types of product at issue that were not exported by the sampled producing exporters (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 159).
148    As the applicants point out, it follows from paragraphs 138 to 140 of the judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38, paragraph 138 to 140), that, in order for the Commission to be under that obligation, the first and second conditions (see paragraph 108 above) must be satisfied. As it is, contrary to the applicants’ contention, that is not the case here (see paragraphs 116 to 123 above).
149    Accordingly, the third part of the fourth plea in law must also be rejected.
150    Since all parts of the fourth plea, relating to the infringement of Article 3(2) and (3) of the basic regulation, have been rejected, the applicants also have no basis for claiming that, because of those infringements, the Commission also infringed Article 3(6) of that regulation (see paragraph 70 above).
151    In the light of all of the foregoing, the fourth plea in law must be rejected in its entirety.
Fifth plea in law, alleging infringement of the rights of the defence
152    The applicants submit that the Commission infringed their rights of defence in that, despite their requests, it failed to provide them with any information with respect to the Union industry’s quantities sold and sales prices by PCN or the price undercutting and underselling margins by PCN (‘the information at issue’). They criticise the Commission for not having provided them with that information at least in the form of ranges of values. In their view, although Article 19 of the basic regulation provides for the confidential treatment of certain information, its application cannot deprive the rights of the defence of their substance. They note that Article 19(2) of the basic regulation provides that interested parties claiming confidentiality of information supplied are required to submit a non-confidential summary of that information or, at the very least, a statement of reasons as to why such summarisation is not possible. Furthermore, according to the applicants, it is irrelevant that the allegedly confidential information relates to a single EU producer.
153    The applicants submit that, for the present plea to be well founded, they do not have to show that the outcome of the investigation could have been different; they only need to show that the possibility of a different outcome cannot be totally ruled out. However, without having the information at issue, they could not assess whether there was an absence of price undercutting or underselling for certain PCNs, nor could they assess for which PCNs the Union industry had made most of its sales. That information was therefore essential in order to be able to review the correctness of the undercutting determination, for which it might be appropriate to look at the market shares of the various PCNs in question, and to examine whether the imports had indeed caused injury to that industry.
154    The Commission, supported by Kuraray and by Sekisui, disputes the applicants’ arguments.
155    For the purposes of examining the present plea, it is appropriate to recall the wording of the relevant provisions.
156    Article 19 of the basic regulation provides as follows:
‘1.      Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information) or which is provided on a confidential basis by parties to an investigation shall, if good cause is shown, be treated as such by the authorities.
2.      Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not capable of being summarised. In such exceptional circumstances, a statement of the reasons why such summarisation is not possible shall be provided.
…
4.      This Article shall not preclude the disclosure of general information by the Union authorities, and, in particular, of the reasons on which decisions taken pursuant to this Regulation are based, or disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interests of the parties concerned that their business secrets not be divulged.
5.      The Commission and Member States, including the officials of either, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from that supplier.
…’
157    Article 20 of the basic regulation provides as follows:
‘1. The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed …
2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.
…’
158    Article 6(7) of the basic regulation provides as follows:
‘7. The complainants, importers and exporters … may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and is used in the investigation.
…’
159    By those provisions, the basic regulation is pursuing two objectives: on the one hand, to allow the interested parties effectively to defend their interests and, on the other hand, to preserve the confidentiality of the information collected in the course of the investigation (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 96; see also, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142 and the case-law cited).
160    As regards the first objective referred to in paragraph 159 above, it should be recalled that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. Respect for that principle is of crucial importance in anti-dumping investigations (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 139 and the case-law cited).
161    In accordance with that principle, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 140 and the case-law cited).
162    As regards the second objective referred to in paragraph 159 above, it must be recalled that the protection of business secrets is a general principle of EU law. The maintenance of fair competition is an important public interest, the safeguarding of which can justify a refusal to disclose information which reveals business secrets (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 165 and the case-law cited).
163    In order to reconcile the two objectives in question, in performing their duty to provide information, the EU institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information (see, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 141).
164    The need to reconcile those objectives also follows from the fact that, according to the case-law, Article 19 of the basic regulation is intended to protect not only the business secrets but also the defence rights of the other parties to the anti-dumping proceeding (see judgment of 15 October 2020, Zhejiang Jiuli Hi-Tech Metals v Commission, T‑307/18, not published, EU:T:2020:487, paragraph 82 and the case-law cited).
165    The protection of information covered by business secrecy does not require the exclusion, on principle, of all disclosure to interested parties of the information used during an anti-dumping investigation, irrespective of the circumstances. In particular, it is necessary to consider the particular situation of the interested party with regard to that information and, in particular, the position that that interested party occupies on the market under consideration in relation to the position of the supplier of the information (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 199; see also, to that effect, judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 159).
166    The case-law makes clear that the obligation to respect confidential information cannot deprive the applicant’s rights of defence of their substance (see judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 142 and the case-law cited).
167    In the present case, as is apparent from recital 435 of the contested regulation and from a letter which the applicants sent to the Commission on 8 July 2020, the applicants, after receiving final disclosure, requested access to the information at issue.
168    By email of 13 July 2020, Kuraray informed the Commission that it was opposed to the disclosure to the applicants of the information at issue, including in the form of ranges instead of exact values. As the Commission stated at the hearing, that email was Kuraray’s response to an email which the Commission had sent to it after receiving the applicants’ letter of 8 July 2020, referred to in paragraph 167 above. Kuraray argued that the information at issue was confidential by nature within the meaning of Article 19(1) of the basic regulation and stated that, since it was the only EU producer sampled by the Commission to sell the product concerned to third parties, the disclosure of further details in respect of the undercutting and underselling calculations would be of a competitive advantage to its competitors and would have a significantly adverse effect on it. Such disclosure, which would reveal information about quantities of PVA sold during the investigation period as well as average prices based on PCNs, would cause irreparable harm to its business operations in the European Union.
169    Furthermore, Kuraray contended that the information about price undercutting and underselling already provided to the applicants enabled them to understand the injurious effect of the imports on the Union industry and to exercise their rights of defence. It stated that each exporting producer would be subject to the same level of anti-dumping duties in respect of all of its exports to the European Union of the product concerned, without any distinction based on PCNs.
170    By email of 14 July 2020, the Commission informed the applicants that, having assessed their request for access to the information at issue, it had decided to refuse it because the information was confidential under Article 19 of the basic regulation. The Commission’s reasons for its decision are the same as those put forward by Kuraray, set out in paragraph 169 above.
171    In recital 436 of the contested regulation, the Commission noted that, in line with Article 19 of the basic regulation, it had not been able to reveal the information at issue, since disclosure of such a level of detail would make it possible, either directly or with the addition of market intelligence, to reconstruct confidential sales or production data of individual EU producers.
172    It must be held that, in the light of Article 19(1) and (5) of the basic regulation, the Commission was not authorised to disclose the information at issue to the applicants because of Kuraray’s opposition (see, by analogy, judgments of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 178, and of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 477).
173    However, where information cannot be communicated because it is confidential, Article 19(2) of the basic regulation requires the parties which are the source of that information to provide a non-confidential summary of it whenever possible (see, to that effect, judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 483).
174    Therefore, the Court must ascertain whether, by failing to take steps to enable the applicants to be provided with the information at issue in the form of non-confidential summaries, within the meaning of Article 19(2) of the basic regulation, the Commission infringed the applicants’ rights of defence.
175    To that end, it is necessary to refer, in accordance with the principles recalled in paragraphs 19 to 21 above, to the decisions of the DSB relating to Articles 6.5 and 6.5.1 of the anti-dumping agreement, which correspond, in essence, to Article 19(1) and (2) and the first sentence of Article 19(5) of the basic agreement (see, to that effect and by analogy, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraphs 103, 188 and 190).
176    According to the Report of the Appellate Body, European Communities – Definitive anti-dumping measures on certain iron or steel fasteners from China (WT/DS 397/AB/R), adopted by the DSB on 28 July 2011 (paragraphs 542 to 544), in respect of information treated as confidential under Article 6.5 of the anti-dumping agreement, Article 6.5.1 of that agreement obliges the competent authority to require that a non-confidential summary of the information be furnished. The sufficiency of the summary provided will depend on the confidential information at issue, but the summary must permit a reasonable understanding of the substance of the information withheld in order to allow the other parties to the investigation an opportunity to respond and defend their interests. Article 6.5.1 of the anti-dumping agreement contemplates the possibility that, in exceptional circumstances, confidential information may not be susceptible of summary. In such exceptional circumstances, a party may indicate that it is not able to furnish a non-confidential summary of the information submitted in confidence, but it is nevertheless required to provide a statement of the reasons why summarisation is not possible. For its part, the competent authority must scrutinise such statements to determine whether they establish exceptional circumstances and whether the reasons given appropriately explain why, under the circumstances, no summary that permits a reasonable understanding of the information’s substance is possible. Summarisation of confidential information will not be possible where no alternative method of presenting that information can be developed that would not, either disclose the sensitive information, or fail to provide a sufficient level of detail to permit a reasonable understanding of the substance of the information submitted in confidence.
177    In the present case, when Kuraray opposed the disclosure of the information at issue, including in the form of ranges of values, it must be considered to have refused to comply with the obligation to provide non-confidential summaries of that information and to have relied in that respect on the existence of the exceptional circumstance that it was the only EU producer whose sales had been taken into account by the Commission in the analysis of price undercutting and underselling. The Commission examined Kuraray’s arguments and decided that its stance was well founded, having regard also to the fact, noted in essence in recital 436 of the contested regulation, that Chinese exporting producers would have been able to read the information sought in the light of the market intelligence already available to them.
178    Consequently, it must be held that the Commission correctly followed the steps laid down in the relevant provisions in order to strike a balance between the two objectives referred to in paragraph 159 above.
179    As to the merits of the Commission’s assessment, it should be noted that, in view of the sensitivity of the information at issue and the exceptional circumstances of this case, the Commission did not make any error in refusing its disclosure.
180    The fact that there was no error on the part of the Commission is confirmed by the fact that when the applicants received the email from the Commission refusing their request for access to the information at issue (see paragraph 170 above), they did not bring the matter before the hearing officer, although they could have done so under Article 15 of Decision (EU) 2019/339 of the President of the European Commission of 21 February 2019 on the function and terms of reference of the hearing officer in certain trade proceedings (OJ 2019 L 60, p. 20).
181    It must be held that, by refraining from bringing the matter before the hearing officer, the applicants accepted the balance struck by the Commission between the objectives in question.
182    In any event, it must be recalled that, according to the case-law, although an applicant cannot be required to show that the Commission’s decision would have been different in the absence of the procedural irregularity in question, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself had there been no irregularity, the fact remains that the existence of an irregularity relating to the rights of the defence can result in the annulment of the measure in question only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the rights of the defence (see judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission, C‑718/20 P, EU:C:2022:362, paragraph 49 and the case-law cited).
183    On that point, first, the applicants maintain that the confusion which arose regarding the percentages of products imported and sold by the Union industry that were examined in the analysis of price undercutting would not have occurred if they had received the information at issue (see the third part of the fourth plea). However, it must be stated that that confusion has no bearing on whether there is a possibility that the procedure conducted by the Commission might result in a different outcome. In any event, if the applicants considered the explanations given by the Commission (see paragraph 144 above) to be ambiguous, they could have asked the Commission for further clarification.
184    Secondly, the applicants submit that, in certain circumstances, in order to ensure that the examination of the existence of significant price undercutting at the level of the like product is objective, it may be appropriate to examine the market shares of the various product types in question. In order for an interested party to be able reasonably to argue that those circumstances prevail, it would have to have information about those market shares.
185    Since, as is apparent from paragraphs 106 to 108, in certain circumstances, the analysis of price undercutting might have to be conducted by market segment, the possibility cannot a priori be entirely ruled out that if the applicants had been in possession of non-confidential summaries in respect of the information at issue, they would have been able to put forward arguments capable of demonstrating that the circumstances of the case required that such an analysis be carried out.
186    However, as is apparent from the examination of the fourth plea, in particular from paragraphs 116 to 123 above, there is nothing in the present case that would require the Commission to carry out an analysis of price undercutting by market segment. Accordingly, the possibility that the procedure might have resulted in a different outcome if the abovementioned summaries had been available to the applicants must be ruled out.
187    In the light of all of the foregoing considerations, the fifth plea in law must also be rejected and, as a result, the action must be dismissed in its entirety.
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 applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, by Kuraray and by Sekisui, in accordance with the form of order sought by them.
189    Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Parliament and the Council shall bear their own costs.
190    Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 thereof to bear its own costs. In the present case, Wegochem, which intervened in support of the main parties who were unsuccessful, must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders Anhui Wanwei Updated High-Tech Material Industry Co. Ltd and Inner Mongolia Mengwei Technology Co. Ltd to bear their own costs and to pay the costs incurred by the European Commission, by Kuraray Europe GmbH and by Sekisui Specialty Chemicals Europe SL;
3.      Orders the European Parliament, the Council of the European Union and Wegochem Europe BV to bear their own costs.
Truchot
Kanninen
Madise
Frendo
Perišin
Delivered in open court in Luxembourg on 21 February 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.