JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
5 February 2025 (*)
( Subsidies – Imports of rainbow trout originating in Türkiye – Implementing Regulation (EU) 2022/2390 – Definitive countervailing duty – Manifest error of assessment – Pass-through analysis – Calculation of subsidy amount – Methodology differing from that used in the original investigation – Change of circumstances – Existence of a benefit – Preferential loans and tax treatment – Definition of the product concerned )
In Case T‑122/23,
Ege İhracatçıları Birliği, established in Konak (Türkiye), and the other applicants whose names are set out in the annex, (1) represented by G. Coppo, A. Scalini and G. Pregno, lawyers,
applicants,
v
European Commission, represented by L. Di Masi, G. Luengo and J. Zieliński, acting as Agents,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira (Rapporteur), President, M. Kancheva and U. Öberg, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 4 July 2024,
gives the following
Judgment
1        By their action based on Article 263 TFEU, the applicants, Ege İhracatçıları Birliği and the other legal persons whose names are set out in the annex, seek the annulment of Commission Implementing Regulation (EU) 2022/2390 of 7 December 2022 amending the definitive countervailing duty imposed on imports of certain rainbow trout originating in Türkiye by Implementing Regulation (EU) 2021/823 following a partial interim review pursuant to Article 19 of Regulation (EU) 2016/1037 of the European Parliament and of the Council (OJ 2022 L 316, p. 52; ‘the contested regulation’), in so far as it concerns the applicants.
Background to the dispute
2        The applicants are exporting producers of rainbow trout established in Türkiye, whose sales represent more than 60% of the export sales of that product to the European Union.
3        On 15 February 2014, following a complaint lodged with the European Commission’s services on 3 January 2014 by the Danish Aquaculture Association, the European Commission initiated an anti-subsidy investigation concerning imports into the European Union of certain rainbow trout originating in Türkiye.
4        The products under investigation were, more specifically, rainbow trout (Oncorhynchus mykiss), live, weighing 1.2 kg or less each; or fresh, chilled, frozen and/or smoked in the form of whole fish (with heads on), whether or not gilled, whether or not gutted, weighing 1.2 kg or less each, or with heads off, whether or not gilled, whether or not gutted, weighing 1 kg or less each; or in the form of fillets weighing 400 g or less each, originating in Türkiye and currently under Combined Nomenclature (CN) codes ex 0301 91 90, ex 0302 11 80, ex 0303 14 90, ex 0304 42 90, ex 0304 82 90 and ex 0305 43 00 (‘the product concerned’).
5        On 29 October 2014, the Commission adopted Implementing Regulation (EU) No 1195/2014 imposing a provisional countervailing duty on imports of certain rainbow trout originating in Turkey (OJ 2014 L 319, p. 1; ‘the provisional implementing regulation’). The investigation period was from 1 January to 31 December 2013 (‘the original investigation’).
6        On 26 February 2015, the Commission adopted Implementing Regulation (EU) 2015/309 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain rainbow trout originating in Turkey (OJ 2015 L 56, p. 12).
7        On 4 June 2018, following a first partial interim review, relating to an investigation period from 1 July 2016 to 30 June 2017, the Commission adopted Implementing Regulation (EU) 2018/823 terminating the partial interim review of the countervailing measures applicable to imports of certain rainbow trout originating in the Republic of Turkey (OJ 2018 L 139, p. 14; ‘the implementing regulation relating to the first interim review’). By that implementing regulation, the Commission decided to maintain the measures initially established.
8        On 15 May 2020, following a second partial interim review, relating to an investigation period from 1 January to 31 December 2018, limited to the subsidies concerning one sampled exporting producer, the Commission adopted Implementing Regulation (EU) 2020/658 amending Implementing Regulation 2015/309 following an interim review pursuant to Article 19(4) of Regulation (EU) 2016/1037 of the European Parliament and of the Council (OJ 2020 L 155, p. 3; ‘the implementing regulation relating to the second interim review’). By that implementing regulation, the Commission amended the countervailing duty rate applicable to that exporting producer.
9        On 20 May 2021, following an expiry review relating to an investigation period from 1 January to 31 December 2019, the Commission adopted Implementing Regulation (EU) 2021/823 imposing a definitive countervailing duty on imports of certain rainbow trout originating in Turkey following an expiry review pursuant to Article 18 of Regulation (EU) 2016/1037 of the European Parliament and of the Council (OJ 2021 L 183, p. 5; ‘the implementing regulation relating to the expiry review’). By that implementing regulation, the Commission extended, for a further period of five years, the measures laid down in Implementing Regulation 2015/309.
10      On 20 September 2021, by a notice of initiation of a partial interim review of the countervailing measures applicable to imports of certain rainbow trout originating in the Republic of Turkey, published in the Official Journal of the European Union (OJ 2021 C 380, p. 15), the Commission decided to carry out a partial interim review in order to take account of the lasting change of circumstances in the structure and rules for the implementation of the subsidies granted by the Government of Türkiye as compared with the original investigation. The investigation period was from 1 January to 31 December 2020 (‘the investigation period concerned’). That review was concluded by the adoption of the contested regulation, which amended and reduced the level of countervailing duties imposed on the applicants, thus subjecting them to a countervailing duty of between 2.8% and 4.4%.
Forms of order sought
11      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.
12      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
13      In support of their action, the applicants raise seven pleas in law. The first plea alleges infringement of Article 1(1), Article 3(2), Article 5 and Article 7 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55), in so far as the Commission failed to carry out an analysis of the pass-through of the subsidy per kilogram of purchased trout. The second plea alleges infringement of Article 22(6) of Regulation 2016/1037, in so far as the Commission applied a new methodology for calculating the subsidy amount per kilogram of purchased trout. The third plea alleges infringement of Article 1(1), Article 3(2), Article 5 and Article 7 of Regulation 2016/1037, in so far as the Commission made manifest errors of assessment when calculating the subsidy amount per kilogram of purchased trout. The fourth plea alleges infringement of Article 22(6) of Regulation 2016/1037, in so far as the Commission amended the methodology for calculating the amount of subsidy per kilogram of purchased trout by including large trout in that calculation. The fifth plea alleges infringement of Article 1(1), Article 3(2), Article 5 and Article 7 of Regulation 2016/1037, in so far as the Commission included large trout in the calculation of the subsidy amount per kilogram of purchased trout, even though the countervailing measures did not relate to large trout. The sixth plea alleges infringement of Article 3 of Regulation 2016/1037, in so far as the Commission reached the incorrect conclusion that certain export loans granted to Gümüșdoğa Su Ürünleri Üretim İhracat ve İthalat AŞ (‘Gümüșdoğa’) by private banks had to be attributed to the Government of Türkiye. The seventh plea alleges infringement of Article 5 and Article 7(2) and (4) of Regulation 2016/1037, in so far as the Commission made manifest errors of assessment when calculating Gümüșdoğa’s subsidy margin.
14      As a preliminary point, it should be noted that the question of whether the Union industry has suffered injury and whether that injury is attributable to subsidised imports requires the assessment of complex economic situations. Thus, 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 (see judgment of 14 December 2022, PT Ciliandra Perkasa v Commission, T‑138/20, not published, EU:T:2022:810, paragraph 24 and the case-law cited).
15      The judicial review of such an appraisal must therefore be limited to verifying whether the 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 judgment of 14 December 2022, PT Ciliandra Perkasa v Commission, T‑138/20, not published, EU:T:2022:810, paragraph 25 and the case-law cited).
16      However, whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU Courts must refrain from reviewing the institutions’ interpretation of information of an economic nature. The EU Courts must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgment of 28 June 2019, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2019:454, paragraph 30 and the case-law cited).
17      Lastly, according to the case-law, in order to establish that the Commission made a manifest error in the assessment of the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must suffice to render implausible the assessments of the facts relied on in the decision at issue (see, to that effect, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 62 and the case-law cited).
The first plea in law, alleging infringement of Article 1(1), Article 3(2), Article 5 and Article 7 of Regulation 2016/1037, in so far as the Commission failed to carry out an analysis of the pass-through of the subsidy per kilogram of purchased trout
18      The applicants claim, in essence, that, contrary to what the Commission had done during the original investigation, in the contested regulation it did not carry out a pass-through analysis in order to determine whether, and to what extent, the benefit received by unrelated trout farmers also benefited exporting producers of the product concerned. It arbitrarily assumed that that benefit was passed on in full to the exporting producers. The failure to carry out such an analysis clearly infringes Regulation 2016/1037, EU case-law and World Trade Organisation (WTO) case-law. Moreover, the Commission cannot rely on the inadequate analysis carried out during the original investigation in 2014. According to the applicants, that analysis is manifestly insufficient to satisfy the legal standard established by WTO case-law. Moreover, the circumstances surrounding that analysis have clearly changed since then.
19      The Commission disputes the applicants’ arguments.
20      In that regard, first, it should be noted that Article 1(1) of Regulation 2016/1037 provides that a countervailing duty may be imposed to offset any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product whose release for free circulation in the European Union causes injury.
21      Article 3 of Regulation 2016/1037 provides, in essence, that a subsidy is deemed to exist if there is a ‘financial contribution’ by the government of the country of origin or export and if a ‘benefit’ is thereby conferred.
22      Article 5 of Regulation 2016/1037 also states that the amount of countervailable subsidies is to be calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period for subsidisation.
23      It follows that, contrary to what the applicants submit, it cannot be inferred solely from the wording of those provisions that the Commission was required, during each review investigation procedure, to carry out a new pass-through analysis and could not therefore rely on the pass-through analysis carried out during the original investigation in order to determine, during the investigation period concerned, the benefit received by the exporting producers when purchasing trout from unrelated farmers. Those provisions state only that the amount of countervailable subsidies is calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period for subsidisation; the Commission did so in recitals 148 to 168 of the contested regulation.
24      The applicants submit that the interpretation that must be given to those provisions is confirmed by the case-law and by reports of the Appellate Body and Panels of the WTO. It should be noted that it is in no way apparent from the case-law and from the reports of the WTO cited by the applicants that the Commission was not entitled to rely, in the contested regulation, on the pass-through analysis carried out in the context of the original investigation in order to determine the benefit received by the exporting producers when purchasing trout from unrelated farmers.
25      Thus, the applicants’ proposed interpretation of those provisions, which would require the Commission to carry out, during each review investigation procedure, a new pass-through analysis, is not apparent either from the provisions of Regulation 2016/1037 relied on or from the case-law and reports of the WTO cited by the applicants.
26      Second, it is true that it is apparent from reading the contested regulation that, for the purposes of determining the benefit received by the exporting producers when purchasing trout from unrelated farmers, the Commission referred to the pass-through analysis carried out during the original investigation. In recital 111 of the contested regulation, the Commission refers to the original investigation which had found that the direct subsidy scheme also benefited the exporting producers when they purchased trout from unrelated farmers in Türkiye for processing, given that the product under review covered both the directly subsidised raw material, namely live trout, and the downstream products (fresh or frozen whole trout, fillets and smoked trout). In recital 112 of that regulation, the Commission also states that, in the original investigation, the benefit for the purchased trout had been calculated on the basis of the total subsidy amount granted by the Turkish authorities divided by the total amount of trout production in Türkiye.
27      However, it is apparent from reading the previous implementing regulations that the Commission also systematically referred to the pass-through analysis carried out in the context of the original investigation in order to determine the benefit received by the exporting producers when purchasing trout from unrelated farmers. In recital 34 of the implementing regulation relating to the second interim review, the Commission stated that it had applied, for the purposes of determining the benefit received by exporting producers when purchasing trout, the same methodology as that used in the original investigation. In recital 39 of the implementing regulation relating to the expiry review, the Commission reiterated the finding in the original investigation that the benefit of the subsidies applied also to companies which not only farmed but also purchased some trout from unrelated companies for processing, since the product concerned covered both the directly subsidised raw material, namely live trout, as well as the downstream products. It also stated that it had followed, for the purpose of determining the benefit received by the exporting producers when purchasing trout, the same methodology as that applied in the original investigation.
28      It is also apparent from the contested regulation, and from the other implementing regulations, that the interested parties, including the applicants, never submitted comments on whether that approach was inappropriate. In recitals 140 to 146 of the contested regulation, it is stated that, following the final disclosure, the interested parties only disputed the methodology used to calculate the indirect benefit received for the purchase of trout. In recital 35 of the implementing regulation relating to the second interim review, it is stated that the exporting producer which had made the request for a review had claimed above all that the support scheme for ‘Good farming practices’ had ended in 2019 and that the Commission should not therefore take it into consideration for the calculation of the indirect subsidy.
29      It is also apparent from the contested regulation, and in particular from recital 115 thereof, that, during the investigation period concerned, no party referred to any change in the circumstances surrounding the pass-through analysis carried out during the original investigation that would have been capable of calling into question that analysis and that would have justified the Commission carrying out a new analysis. In that recital, the Commission stated that no interested party had disputed that the exporting producers continued to benefit from the subsidisation when purchasing trout from unrelated farmers.
30      It follows from the foregoing findings that it is only in the context of the present action that, for the first time, the applicants complain that the Commission referred to the pass-through analysis carried out during the original investigation in order to determine the benefit received by the exporting producers when purchasing trout from unrelated farmers, and refer to a change of circumstances which, in the applicants’ view, justified the Commission conducting a new pass-through analysis. At the hearing, the applicants admitted that those issues had not been raised during the administrative procedure.
31      According to settled case-law, in the context of an action for annulment, the legality of a contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted. In particular, the assessments carried out by the Commission must be examined solely in the light of the information available to it at the time when it carried out those assessments, since the Commission is not obliged to examine, of its own motion and on the basis of prediction, what information might have been submitted to it (see, to that effect, judgment of 20 March 2019, Foshan Lihua Ceramic v Commission, T‑310/16, EU:T:2019:170, paragraph 129 and the case-law cited).
32      Therefore, an applicant who has participated in the investigation procedure cannot rely on factual arguments of which the Commission was unaware and of which it did not inform the Commission in the course of the investigation procedure (see, to that effect, judgment of 11 May 2005, Saxonia Edelmetalle and ZEMAG v Commission, T‑111/01 and T‑133/01, EU:T:2005:166, paragraph 68 and the case-law cited).
33      Accordingly, in the light of the abovementioned examples of the case-law, the applicants’ complaints set out in paragraph 30 above must be understood as factual arguments of which the Commission was unaware when it adopted the contested regulation; those arguments cannot therefore be raised for the first time before the General Court against the contested regulation and are inadmissible.
34      The same conclusion of inadmissibility must be reached in respect of the applicants’ arguments relating to the inadequacy and insufficient nature of the pass-through analysis carried out in the context of the original investigation, and there is no need to examine further the Commission’s objection that those arguments put forward in the reply were out of time. As noted in paragraph 29 above and as is apparent from reading the previous implementing regulations, the applicants did not challenge at any stage of the administrative procedure – either during the original investigation or following the various review procedures – the Commission’s findings that, first, the exporting producers purchased trout from farmers in Türkiye in order to process and export it in various forms to the European Union and, second, the benefit of the subsidies also applied at the time of those purchases. The applicants have only challenged the methodology and the calculation of the indirect benefit that were used by the Commission, as is apparent from recitals 140 to 146 of the contested regulation.
35      Third, it should be noted that neither Regulation 2016/1037 nor the case-law advocate a precise methodology to be followed in order to analyse that pass-through. In the present case, the Commission found in recitals 55 to 58 of the provisional implementing regulation, without being challenged by the parties, that all producers of the product concerned benefited from the direct subsidy scheme, irrespective of whether they themselves farmed trout or purchased it for further processing. In order to do so, first, the Commission compared the cost of farming of the three sampled companies which themselves farmed trout with the price paid to purchase live or chilled fish from unrelated suppliers. The Commission found that, for all three companies, the purchase price for live or chilled fish was lower than the average cost of farming. Second, the Commission compared the average cost of farming of the three other sampled companies (including a reasonable and conservative amount for selling, general and administrative costs and profits) with the individual average purchase price paid by Ternaeben – one of the sampled companies which did not farm – for chilled or live fish. It was found that the average cost of farming of the other three sampled companies was higher than the average purchase price of Ternaeben. Its average purchase price was found to be in line with the other sampled companies. Therefore, the Commission considered that the sampled companies, also to the extent that they purchased trout from unrelated companies, benefited from the direct subsidy scheme.
36      In recital 113 of the contested regulation, the Commission noted that, in the expiry review, the finding that the exporting producers received a benefit from the purchase of trout was confirmed. In recital 115 of the contested regulation, the Commission also found that no interested party had disputed, during the investigation period concerned, that the exporting producers continued to benefit from the subsidisation when purchasing trout from unrelated farmers.
37      It follows that, contrary to what the applicants submit, the Commission did not arbitrarily assume that the benefit received by the unrelated farmers was transferred in full to the exporting producers when they purchased trout from them for further processing. As the Commission rightly states in its pleadings, a mere disagreement as to the approach taken is neither sufficient to demonstrate a manifest error of assessment, nor can it constitute a breach of the principle of good administration.
38      On the basis of those facts and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be held that the approach followed by the Commission in the contested regulation, consisting in relying on the unchallenged pass-through analysis carried out in the context of the original investigation which led to the imposition of countervailing duties, does not appear to be manifestly incorrect. It must also be held that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation. In accordance with the case-law referred to in paragraph 17 above, such evidence is required in order to establish that an institution made a manifest error of assessment such as to justify the annulment of an act.
39      In those circumstances, it must be concluded that the Commission did not make a manifest error of assessment and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
40      The present plea must therefore be rejected.
The second plea in law, alleging infringement of Article 22(6) of Regulation 2016/1037, in so far as the Commission applied a new methodology for calculating the subsidy amount per kilogram of purchased trout
41      The applicants submit, in essence, that the Commission infringed Article 22(6) of Regulation 2016/1037, in so far as it applied, in the contested regulation, a methodology for calculating the subsidy per kilogram of purchased trout that differed from the methodology used in the original investigation, even though there had been no change of circumstances.
42      The Commission disputes the applicants’ arguments.
43      As a preliminary point, it should be noted that, first, judicial review of the appraisal of the choice between different methods of calculation requires an appraisal of complex economic situations and 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 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 86 and the case-law cited).
44      Second, according to the wording of Article 22(6) of Regulation 2016/1037, in all review or refund investigations carried out pursuant to Articles 18 to 21, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty, with due account being taken of Articles 5, 6, 7 and 27 of that regulation.
45      Third, according to the case-law, the application of an adjustment on the basis of factors which had not been examined in the past cannot be regarded as a change of method, but as a consequence of the finding that the conditions required for such an adjustment are now met (see, to that effect, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 197 and the case-law cited).
46      Fourth, the use of the same method does not mean that the same data collected during a previous investigation or the same factual conclusions or calculations obtained from that data must be used (see, to that effect, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 178 and the case-law cited).
47      In the present case, it should be noted that, in the contested regulation, the Commission applied, for the purposes of determining the benefit received by the exporting producers when purchasing trout from unrelated farmers, an approach differing from that followed in the original investigation which led to the imposition of countervailing duties.
48      During the original investigation, as stated in recitals 112 and 113 of the contested regulation, in recital 63 of the provisional implementing regulation, in recital 34 of the implementing regulation relating to the second interim review and in recital 39 of the implementing regulation relating to the expiry review, the Commission calculated that benefit on the basis of a single subsidy rate obtained by dividing the total subsidy amount, granted by the Turkish authorities, by the total amount of trout production in Türkiye. That rate was then applied to the exporting producers.
49      In the contested regulation, as follows from recitals 148 to 152 thereof, that benefit was calculated on the basis of two separate subsidy rates, determined according to the category to which the trout farmer from which the purchase was made belonged. For the purposes of that calculation, trout farmers were divided into two categories, irrespective of the number of farming licences held. The first category consisted of farmers whose production was below 350 tonnes per year. The second category consisted of farmers whose production was over 350 tonnes per year and farmers who did not receive a subsidy. Consequently, when trout was purchased from a farmer in the first category, a subsidy rate of 0.966 Turkish lira (TRY) per kilogram of purchased trout was applied. When trout was purchased from a farmer in the second category, a subsidy rate of TRY 0.368 per kilogram of purchased trout was applied.
50      Since the approaches taken during the original investigation and in the contested regulation differ, it is necessary to examine whether the approach taken in the contested regulation constitutes a change of methodology for the purposes of Article 22(6) of Regulation 2016/1037.
51      In that regard, it should be noted that it is apparent from recitals 115 and 148 of the contested regulation that the amount of subsidy for purchased trout was established on the basis of the list of trout farmers that was provided by the Government of Türkiye, which, according to the Commission, without this being disputed by the applicants, presented for the first time the total production of subsidised trout and the subsidy received in 2020 for each trout farmer. Those data, which were compared with the purchase listings of the exporting producers, enabled the Commission to find that:
–        5% of purchases by quantity came from farmers who had not received a subsidy, or where data could not be found;
–        49% of purchases by quantity were from farmers whose production quantity exceeded the statutory production cap of 350 tonnes per year;
–        46% of purchases by quantity were from farmers whose production quantity was below the statutory production cap of 350 tonnes per year.
52      The Commission stated in its pleadings that, during the previous investigations, it was not possible for it to make such a finding and such a categorisation between farmers, since the information provided by the Government of Türkiye did not have such a level of detail. It is apparent in that regard from recital 114 of the contested regulation, without it being challenged by the applicants, that the information provided by the Government of Türkiye in previous investigations was overall country-wide information which did not refer to the specific situation of the sampled exporting producers. It is also apparent from recital 143 of the contested regulation that, in previous investigations, the Commission had considered that all farmers in Türkiye received the same subsidy amount per kilogram of trout.
53      It follows that, since the Commission now had more precise data on the level of subsidy received by each farmer in 2020 enabling it to distinguish two categories of farmers and two subsidy rates for exporting producers when the latter purchased trout, the Commission relied, in the contested regulation, for the purposes of determining the amount of subsidy per kilogram of purchased trout, on facts of which it was not previously aware, which had therefore not been examined previously or from which it had not drawn legal conclusions.
54      In accordance with the case-law referred to in paragraph 45 above, which is applicable mutatis mutandis, contrary to what the applicants claim, given that Article 22(6) of Regulation 2016/1037 is identical to Article 11(9) 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), relied on in that case-law, an adjustment on the basis of factors which had not been examined in the past cannot be regarded as a change of methodology for the purposes of Article 22(6) of Regulation 2016/1037, but as a consequence of the finding that the conditions required for such an adjustment are now met.
55      That conclusion cannot be called into question by the applicants’ ineffective argument that the Commission stated, in recital 143 of the contested regulation, that the change in the calculation methodology was linked to a change of circumstances, since, where the Court is called upon to assess the legality of an act of the Commission, the Court cannot be bound by an assessment of the facts carried out by the Commission, since that assessment is part of the findings the legality of which is disputed before the Court. It must examine whether the approach taken by the Commission is contrary to Article 22(6) of Regulation 2016/1037, irrespective of the assessment of the facts made by the Commission in the contested regulation.
56      An identical conclusion of ineffectiveness must also be reached with regard to the applicants’ argument that the Commission could, from the time of the original investigation, have drawn such a distinction between trout farmers. Even if the Commission could have drawn that distinction from the time of the original investigation, that finding is not such as to render unlawful the approach taken in the contested regulation, since, as noted in paragraph 53 above, the Commission applied in the present case a methodology based on facts which it had not examined previously or from which it had not drawn legal conclusions.
57      Lastly, it is also necessary to reject the applicants’ argument that the Commission could have obtained the relevant information from the time of the original investigation if it had requested the Government of Türkiye to provide it. In that regard, it should be noted that Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93) does not confer on the Commission any investigating powers enabling it to compel interested parties to participate in an investigation or to produce information. In those circumstances, the Commission depends on the voluntary cooperation of the interested parties and the national authorities of third States in supplying the necessary information within the time limits set (see, to that effect, judgment of 11 October 2012, Novatex v Council, T‑556/10, not published, EU:T:2012:537, paragraph 81 and the case-law cited).
58      On the basis of those facts and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be held that the approach taken by the Commission in the contested regulation does not appear to be manifestly incorrect. It must also be held that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation. In accordance with the case-law referred to in paragraph 17 above, such evidence is required in order to establish that an institution made a manifest error of assessment such as to justify the annulment of an act.
59      In those circumstances, it must be concluded that the Commission did not make a manifest error of assessment and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
60      The present plea must therefore be rejected.
The third plea in law, alleging infringement of Article 1(1), Article 3(2), Article 5 and Article 7 of Regulation 2016/1037, in so far as the Commission made manifest errors in the calculation of the subsidy amount per kilogram of purchased trout
61      The applicants submit, in essence, that the Commission made manifest errors of assessment by arbitrarily disregarding, when calculating the subsidy amount per kilogram of purchased trout, two essential elements of the Turkish legislation on direct subsidies, namely the scope of the statutory production cap and the existence of the double-capping mechanism. More specifically, they claim, first, that the Commission was wrong to apply the statutory production cap per farmer rather than by licence, as expressly provided for in Article 5(1)(ç)(3) of Communiqué No 2020/39 on support for aquaculture (T.C. Resmî Gazete No 31321 of 1 December 2020). Second, the Commission ignored the fact that farmers could not receive subsidies for production exceeding the limit of their licence, in accordance with Article 5(1)(ç)(4) of that communiqué. Consequently, that error did not enable it to draw a distinction correctly between farmers whose production exceeded the cap and farmers whose production did not exceed it, and artificially inflated the applicants’ subsidy margin.
62      The Commission disputes the applicants’ arguments.
63      As a preliminary point, it has been noted in paragraph 49 above that, for the purposes of determining the amount of the benefit passed through to the exporting producers when they purchased trout from unrelated farmers during the investigation period concerned, the Commission, on the basis of the information provided by the Government of Türkiye, drew a distinction between two categories of farmers. The first category consisted of farmers whose production was below the statutory production cap of 350 tonnes per year, irrespective of the number of licences held. The second category consisted of farmers whose production exceeded that cap and farmers who did not receive a subsidy. Consequently, when trout was purchased from a farmer in the first category, a subsidy rate of TRY 0.966 per kilogram of purchased trout was applied. When trout was purchased from a farmer in the second category, a subsidy rate of TRY 0.368 per kilogram of purchased trout was applied.
64      First, as regards the incorrect application of the statutory production cap, although it is indeed apparent from recital 150 of the contested regulation that the Commission applied that cap per farmer in that regulation, it is not, however, expressly stated in Article 5(1)(ç)(3) of Communiqué No 2020/39 that it was to be applied per licence, as the applicants claim. Unlike Article 5(1)(ç)(4) of that communiqué, the wording of which expressly refers to farming licences, Article 5(1)(ç)(3) of that communiqué does not contain any details to that effect. That provision states only that the maximum amount for undertakings that wish to obtain aid is limited to 350 tonnes per year. Therefore, contrary to what the applicants submit, Article 5(1)(ç)(3) of Communiqué No 2020/39 does not expressly provide that the statutory production cap applies per licence.
65      In those circumstances, the applicants cannot validly complain that the Commission made a manifest error of assessment in applying that cap per farmer and not per licence in the contested regulation.
66      Moreover, as regards the application of that cap per farmer, it should be noted that, according to Article 5(1) of Communiqué No 2020/39, aid for aquaculture is to be granted to farmers. Article 5(1)(b) of that communiqué also provides that the amount of aid per kilogram is to be granted to producers holding a farming certificate. Article 5(1)(ç)(3) of that communiqué refers to undertakings which, as the Commission stated at the hearing, are the farmers in the present case.
67      It follows that the approach taken by the Commission in the contested regulation cannot, in any event, follow from a manifestly incorrect interpretation of the Turkish legislation.
68      Furthermore, the Commission explained that that approach was appropriate, given that the exporting producers did not purchase their trout from a licence but from a farmer, which the applicants do not dispute. It is thus stated in recital 115 of the contested regulation, and recalled in paragraph 51 above, that the information provided by the Government of Türkiye had enabled the Commission to find that:
–        5% of purchases by quantity came from farmers who had not received a subsidy, or where data could not be found;
–        49% of purchases by quantity were from farmers whose production quantity exceeded the statutory production cap of 350 tonnes per year;
–        46% of purchases by quantity were from farmers whose production quantity was below the statutory production cap of 350 tonnes per year.
69      It follows from all of the foregoing that, in a context marked, in the first place, by Article 5(1) of Communiqué No 2020/39, which expressly provides that aid for aquaculture is to be granted to farmers, in the second place, by the absence of an express reference to farming licences in the wording of Article 5(1)(ç)(3) of Communiqué No 2020/39 and, in the third place, by the undisputed finding that the exporting producers did not purchase their trout from a licence but from a farmer, it must be held, in the light of the Commission’s broad discretion, that it did not make a manifest error of assessment in applying the statutory production cap per farmer in the contested regulation.
70      In any event, it is apparent from the contested regulation that the Commission’s approach was not commented on or challenged by the interested parties, including the applicants, during the administrative procedure, even though they were given an opportunity during that procedure to submit comments on both the final disclosure and the additional final disclosure. It is only in the context of the present action that the applicants complain for the first time that the Commission assessed the statutory production cap per farmer and not per licence.
71      In accordance with the case-law referred to in paragraphs 31 and 32 above, where an applicant has participated in the investigation procedure, it cannot rely on factual arguments of which the Commission was unaware and of which it did not inform the Commission in the course of the investigation procedure. The present argument is therefore inadmissible.
72      Second, as regards the applicants’ allegations that the failure to take account of the nominal capacity indicated in the farming licence did not enable the Commission to distinguish correctly between farmers whose production exceeded the cap and farmers whose production did not exceed it, and artificially inflated the applicants’ subsidy margin, although the Commission does not dispute that it did not take account of the nominal capacity indicated in the farming licence for the purposes of dividing farmers into those categories, it did, however, explain in its pleadings and at the hearing, without being contradicted by the applicants in that regard, that it did not have the necessary information, in particular information on the farmers’ actual production per licence.
73      In that regard, it is apparent from recital 148 of the contested regulation that the information provided by the Government of Türkiye, on the basis of which the Commission formed its analysis, related only to the total production of subsidised trout and the subsidy received in 2020 per licence and per licence holder on a legal entity basis.
74      It is also apparent from recitals 157 and 161 of the contested regulation that, for the purposes of challenging the categorisation method used by the Commission in respect of farmers, the exporting producers had merely provided statements concerning the situation of certain farmers, without any verification or even statement by the relevant farmers to support those exporting producers’ statements.
75      In that regard, first of all, it has been pointed out in paragraph 57 above that the Commission depended on the voluntary cooperation of the interested parties and the national authorities of third States to provide it with the necessary information within the prescribed periods. Regulation 2016/1037 does not confer on the Commission any power of investigation to enable it to compel the parties to produce information.
76      Next, it should be noted that, in view of its confidential nature, the information relating to the farmers’ actual production per licence is not information to which the Commission could by itself have access.
77      In those circumstances, the Commission cannot validly be criticised for not having taken account of the nominal capacity indicated in the farming licence for the purposes of dividing farmers into the two relevant categories.
78      Moreover, it is apparent from recital 167 of the contested regulation that the detailed findings, including the classification of farmers, had been submitted to the Government of Türkiye, which had not submitted any comments as to the accuracy of those findings.
79      In any event, it follows from the case-law referred to in paragraph 17 above that, in order to establish that the Commission made a manifest error in the assessment of the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to render implausible the assessments of the facts that were relied on in the decision at issue.
80      In the present case, it should be noted that, in support of their argument that the failure to take account of the nominal capacity indicated in the farming licence did not enable the Commission to distinguish correctly between farmers whose production exceeded the cap and farmers whose production did not exceed it, which had the effect of artificially inflating the subsidy margin of the applicants, the latter have not provided either evidence or figures. As the applicants admitted at the hearing in response to a question put by the Court, they are only speculating. Their line of argument is purely theoretical, as illustrated by their hypothetical scenario, set out in paragraph 84 of their application, according to which a farmer who holds two production licences (each for 250 tonnes) in different regions and who produces 500 tonnes per year would be regarded, in accordance with the legislation applicable to direct subsidies, as fully subsidised, whereas, in accordance with the approach adopted by the Commission, that farmer would be regarded as a farmer whose production exceeds the cap.
81      In the absence of specific evidence, the applicants’ line of argument does not enable the Court to assess either the existence of an error or how that alleged error did not in fact enable the Commission to distinguish correctly between farmers whose production exceeded the cap and farmers whose production did not exceed it and, in respect of the applicants, artificially inflated their subsidy margin. Mere assertions, conjecture or general and abstract considerations are not sufficient in themselves to render implausible the Commission’s assessments and to demonstrate the alleged manifest error.
82      It was for the applicants to substantiate their assertions with evidence capable of casting specific doubt on the reliability of the Commission’s assessments concerning them (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, EU:T:2021:278, paragraphs 178 and 179 and the case-law cited). To that end, the applicants could have produced, for example in order to show that the farmers from whom they made their purchases had been wrongly considered by the Commission to be fully subsidised, the data relating to the nominal capacity indicated in their licence and relating to their actual production. Such evidence is not unreasonable, given that that information is easily accessible to the applicants.
83      It must therefore be held that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
84      In accordance with the case-law referred to in paragraph 17 above, such evidence is required in order to establish that an institution made a manifest error of assessment such as to justify the annulment of an act.
85      In those circumstances, it must be concluded that the Commission did not, in any event, make a manifest error of assessment.
86      The present plea must therefore be rejected.
The fourth plea in law, alleging infringement of Article 22(6) of Regulation 2016/1037, in so far as the Commission amended the method for calculating the subsidy amount per kilogram of purchased trout by including large trout in that calculation
87      The applicants submit, in essence, that the Commission infringed Article 22(6) of Regulation 2016/1037, in so far as it included the direct subsidies granted for large trout in the calculation of the subsidy amount per kilogram of purchased trout. The Commission cannot, in their view, reasonably argue in that regard that the circumstances changed since the original investigation because, as Table 2 in recital 97 of the contested regulation shows, the Government of Türkiye had been granting direct subsidies for the production of large trout since 2017. The Commission thus made a manifest error of assessment in concluding that the circumstances during the investigation period concerned had changed to such an extent that there was justification for taking account of the direct subsidies granted for large trout in order to calculate the average amount of subsidies per kilogram of purchased trout.
88      The Commission disputes the applicants’ arguments.
89      As a preliminary point, first, as stated in paragraph 43 above, judicial review of the appraisal of the choice between different methods of calculation requires an appraisal of complex economic situations and 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.
90      Second, according to the wording of Article 22(6) of Regulation 2016/1037, recalled in paragraph 44 above, in all review or refund investigations carried out pursuant to Articles 18 to 21 of that regulation, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty, with due account being taken of Articles 5, 6, 7 and 27 of that regulation.
91      Third, according to the case-law, the exception whereby the institutions may, in the review procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, since a derogation from or exception to a general rule must be interpreted narrowly (see, by analogy, judgment of 10 February 2021, RFA International v Commission, C‑56/19 P, EU:C:2021:102, paragraph 54 and the case-law cited).
92      In the present case, it is indeed apparent from reading the contested regulation that, during the investigation procedure concerned, the Commission included large trout in the calculation of the subsidy amount per kilogram of purchased trout.
93      In that regard, in recitals 101 and 115 of the contested regulation, the Commission stated that the Government of Türkiye had provided data regarding the level of subsidy for 2020 for each trout farmer both at the rate of TRY 0.75 per kilogram for trout ‘of any size’ and at the rate of TRY 1.5 per kilogram for ‘over kilogram trout’. In recital 116 of the contested regulation, it explained that, for the production in 2020, the subsidy per kilogram of trout of any size was calculated at TRY 0.53 per kilogram if all production were taken into account and at TRY 1.02 per kilogram if only the subsidised production were taken into account. In recital 118 of the contested regulation, it stated that interested parties had mainly disputed the inclusion, in the subsidy calculation, of the benefit paid to the exporting producers for the harvesting of ‘over kilogram trout’ because that benefit had not been included in the subsidy calculations in the previous investigations.
94      In recital 119 of the contested regulation, the Commission justified the inclusion of large trout in the calculation of the subsidy amount, due to a change of circumstances in the payment of the benefit for the harvesting of trout since the original investigation, but also since the expiry review investigation period. In particular, it stated that, whereas, in the past, direct support was granted on the basis of kilograms of production with no distinction relating to the size of the trout, the Government of Türkiye progressively moved to a system of disbursements on the basis of different support rates depending on the size of the harvested trout.
95      It is therefore necessary to ascertain whether, as the Commission explained, the circumstances had actually changed since the original investigation and whether that change justified the inclusion of those trout in that calculation.
96      In that regard, first of all, recital 89 of the contested regulation states that, during the original investigation, the scheme consisted of a support payment to trout farmers based on the harvested quantity of all trout regardless of any size, with the benefit per kilogram harvested paid in two separate rates based on the quantity harvested up to 500 tonnes per year.
97      In recital 90 of the contested regulation, it is also stated that, for the production year 2017, the Government of Türkiye had added a payment of TRY 0.25 per kilogram for harvested trout over 1 kilogram in weight. That additional payment still applied to the product under review which could weigh up to 1.2 kilograms when harvested.
98      In recital 92 of the contested regulation, it is also stated that, in 2019, the Government of Türkiye withdrew the additional payment of TRY 0.25 for over kilogram trout and instead split the support scheme into two payments: a payment of TRY 0.75 per kilogram for trout of any size and a payment of TRY 1.5 per kilogram for over kilogram trout.
99      Next, it is apparent from recital 95 of the contested regulation that, during the investigation period concerned, trout farmers could now apply, depending on the weight of the harvested trout, for the rate corresponding either to trout of any size or to over kilogram trout. The Commission thus found that, because of the higher support rate for over kilogram trout, trout farmers among the sampled exporting producers, when harvesting trout weighing more than 1.25 kilograms, applied, in most cases, for the rate for over kilogram trout.
100    It is apparent from recitals 96 and 97 of the contested regulation that the Commission had therefore observed a doubling of production of over kilogram trout and of the amount of the subsidy paid to farmers in 2019 and 2020 and a clear shift towards the harvesting of larger trout. More specifically, it found that the subsidies granted had increased by 59 percentage points during the investigation period concerned.
101    It is also apparent from reading recitals 101 and 102 of the contested regulation that the Commission established that, during the investigation period concerned, the exporting producers had benefited from the direct support scheme both at the rate of TRY 0.75 per kilogram for trout of any size and at the rate of TRY 1.5 per kilogram for over kilogram trout, which was not the case in the original investigation, since there was no separate subsidy rate for over kilogram trout. In particular, in recital 102 of the contested regulation, it explained that, in the reviews subsequent to the original investigation, including the expiry review, it had not been able to establish any benefit received for the harvesting of trout weighing more than 1.25 kilograms, given that the exporting producers did not harvest over kilogram trout.
102    Lastly, in recitals 104 and 106 of the contested regulation, the Commission noted that all trout were farmed in the same production facilities, came to maturity in the same ponds, and received the same food. The only difference was that some trout were harvested later to allow them to grow to the required size. It therefore concluded that any benefit received for the farming of larger trout was automatically connected to the farming of smaller trout as well. According to the Commission, no matter whether a trout benefited from one or the other rate, the direct support was provided to harvesting trout, which was the product concerned. Furthermore, any benefit to trout was also present when sold in the form of fillets, which were not distinguished on the basis of the size of the harvested trout.
103    It follows from all of the foregoing that the Commission concluded that there had been a change of circumstances owing, in essence, to the decision of the Government of Türkiye to stop, in 2019, subsidising all trout at a single rate in order to subsidise both trout of any size and over kilogram trout. In particular, following that change, the Commission observed a doubling in production of over kilogram trout and in the amount of the subsidy paid to trout farmers under that scheme in 2019 and 2020, as well as a clear shift towards the harvesting of larger trout. It also observed that, during the investigation period concerned, the exporting producers had benefited from the direct support scheme both for trout of any size and for over kilogram trout, which was not the case in the original investigation where there was no separate subsidy rate for the harvesting of over kilogram trout.
104    It must therefore be stated that the application of the methodology followed by the Commission in the contested regulation is based on the existence of a duly established change of circumstances.
105    On the basis of those facts, the Commission did not make a manifest error of assessment in finding that the abovementioned changes in the structure and the detailed rules for the implementation of the subsidies granted by the Government of Türkiye to trout farmers, as compared with the original investigation, constituted a change of circumstances, for the purposes of Article 22(6) of Regulation 2016/1037, such as to justify the taking into account of large trout in the calculation of the subsidy amount per kilogram of purchased trout.
106    In addition, it should be noted that the change of circumstances referred to in Article 22(6) of Regulation 2016/1037 concerns the parameters used to establish the amount of subsidy (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 177 and the case-law cited), as in the present case.
107    Furthermore, the applicants’ argument that, from 2017, large trout benefited from the direct subsidy scheme, with the result that there was no change of circumstances during the investigation period concerned, is ineffective since, in accordance with the wording of Article 22(6) of Regulation 2016/1037, the circumstances to be taken into consideration, for the purposes of determining whether they have changed in such a way as to enable the institutions to apply a different methodology, are the circumstances of the investigation which led to the imposition of the countervailing duty, that is to say, in the light of the case-law, the circumstances of the original investigation (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 174 and the case-law cited).
108    As established in paragraph 96 above, during the original investigation, the direct support scheme consisted only of a payment to trout farmers based on the harvested quantity of all trout, regardless of their size. That finding is also supported by the table in recital 88 of the contested regulation and by recital 89 of that regulation, from which it is apparent that the differentiation in subsidies, according to the weight of the harvested trout, occurred only after the original investigation.
109    Moreover, even though it is true that large trout benefited, as from 2017, from the direct support scheme, it must nevertheless be observed that it was only from 2019 that the initial support scheme was fundamentally modified by the Government of Türkiye. First, it was only at that time that that government put in place a new support scheme, under which two different payments were now provided for according to the size of the trout harvested: a payment of TRY 0.75 per kilogram for trout of any size and a payment of TRY 1.5 per kilogram for over kilogram trout. Second, as stated by the Commission in recital 96 of the contested regulation, without being challenged by the applicants, and as is also apparent from the table in recital 97 of the contested regulation, it was only during the investigation period concerned that a clear shift towards the harvesting of larger trout was noted, to such an extent that the subsidies paid for over kilogram trout represented more than 60% of the total subsidies paid by the Government of Türkiye, compared with 38% in 2019, 24% in 2018 and 10% in 2017.
110    Consequently, contrary to what the applicants submit, all the conclusions reached by the Commission in the contested regulation as regards the subsidisation of large trout and its impact on the subsidisation of the product concerned could not have been drawn in the past. The applicants have therefore failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation. In accordance with the case-law referred to in paragraph 17 above, such evidence is required in order to establish that an institution made a manifest error of assessment such as to justify the annulment of an act.
111    It follows that the fact that that change in the support scheme occurred in 2017, and not during the investigation period concerned, is not such as to call into question the conclusion, set out in paragraph 105 above, that the noted changes constitute a change of circumstances, for the purposes of Article 22(6) of Regulation 2016/1037, such as to justify the taking into account of large trout in the calculation of the subsidy amount per kilogram of purchased trout.
112    In any event, the Commission applied the disputed calculation on the basis of facts which it had not previously examined or from which it had not drawn legal conclusions.
113    In accordance with the case-law referred to in paragraph 45 above, applicable mutatis mutandis, as follows from paragraph 54 above, an adjustment on the basis of factors which had not been examined in the past cannot be regarded as a change of methodology for the purposes of Article 22(6) of Regulation 2016/1037, but as a consequence of the finding that the conditions required for such an adjustment are now met.
114    In those circumstances and in the light of the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be concluded that the Commission did not make a manifest error of assessment in the present case and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
115    The present plea must therefore be rejected.
The fifth plea in law, alleging infringement of Article 1(1), Article 3(2), Article 5 and Article 7 of Regulation 2016/1037, in so far as the Commission included large trout in the calculation of the subsidy amount per kilogram of purchased trout
116    The applicants submit, in essence, that the Commission made a manifest error of assessment by including large trout in the calculation of the subsidy amount per kilogram of purchased trout, even though the countervailing measures did not relate to large trout, and did so without having carried out any proper analysis. According to the applicants, the subsidies granted for large trout, which relate to a product other than the product concerned, should not be included in that calculation unless it has been demonstrated that the subsidies granted for the product concerned also benefit that other product. The Commission simply assumed, in the present case, that all trout farmers also benefited from the subsidies granted for large trout.
117    The Commission disputes the applicants’ arguments.
118    As a preliminary point, as already reiterated in paragraph 20 above, Article 1(1) of Regulation 2016/1037 provides that a countervailing duty may be imposed to offset any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product whose release for free circulation in the European Union causes injury.
119    In the present case, during the original investigation, as, moreover, during the various review investigation periods, the product concerned was defined, as follows from recital 24 of the provisional implementing regulation, as being rainbow trout (Oncorhynchus mykiss):
–        live, weighing 1.2 kg or less each, or
–        fresh, chilled, frozen and/or smoked:
–        in the form of whole fish (with heads on), whether or not gilled, whether or not gutted, weighing 1.2 kg or less each, or
–        with heads off, whether or not gilled, whether or not gutted, weighing 1 kg or less each, or
–        in the form of fillets weighing 400 g or less each,
–        originating in Türkiye and currently falling within the CN codes ex 0301 91 90, ex 0302 11 80, ex 0303 14 90, ex 0304 42 90, ex 0304 82 90 and ex 0305 43 00.
120    It should also be pointed out that that definition of the product concerned corresponded to the information provided by the Danish Aquaculture Organisation in its complaint, in which it was stated that trout weighing less than 1.2 kg were covered, but also live, frozen and smoked trout, in the form of whole fish or fillets weighing less than 400 grams each, which were the subject of direct or indirect subsidies. That definition also corresponded to the information given in the questionnaire sent by the Commission to the exporting producers.
121    It thus follows from that definition that trout in the form of whole fish, weighing 1.2 kg or more, did not in fact correspond to the product concerned.
122    However, contrary to what the applicants submit, it cannot be inferred from that finding that the subsidies paid by the Government of Türkiye for over kilogram trout could not be taken into account by the Commission, since that product also covered trout fillets weighing a maximum of 400 grams, which the applicants do not dispute in the present case and, moreover, never disputed during the various review investigation periods.
123    In that regard, it should be noted, as follows from paragraph 119 above, that the definition of the product concerned, as regards trout fillets, did not contain any details as to the maximum permitted initial weight of the trout. In addition, Communiqué No 2020/39, which was in force during the investigation procedure concerned, also covered sales of rainbow trout in the form of fillets. It also did not set out a legal criterion excluding support where the trout was sold in a form other than as whole fish. Similarly, it did not specify the maximum permitted initial weight of trout sold in the form of fillets.
124    It is also apparent from reading recital 105 of the contested regulation and also recital 45 of the implementing regulation relating to the first interim review, that the Commission found, without it being disputed, that it was common practice in the relevant industry to process some of the large harvested trout and to sell it as the product concerned, for example in the form of fillets.
125    Thus, the applicants’ interpretation that the fillets do not come from large trout is not apparent either from the undisputed definition of the product concerned or from Communiqué No 2020/39. Furthermore, the applicants have not adduced any evidence in support of that claim.
126    In addition, the Commission established, during the administrative procedure, without this being disputed, that, first of all, the exporting producers purchased trout from unrelated farmers in Türkiye, and that they processed and exported that trout to the European Union. Next, the original investigation had revealed that the benefit of subsidies for purchased trout also applied to purchases of trout by exporting producers from unrelated farmers with a view to processing, given that the product concerned covered both the directly subsidised raw material, namely live trout, and downstream products, namely fresh or frozen trout in the form of whole fish, fillets and smoked trout. Lastly, it was common practice in the industry to process some of the large harvested trout and to sell it as the product concerned, for example in the form of fillets.
127    In the light of the foregoing, it must be noted that the applicants’ line of argument is based on the incorrect premiss that over kilogram trout did not fall within the definition of the product concerned, and must therefore be rejected as ineffective, without there being any need to examine it further. Their line of argument is not capable of demonstrating that the Commission made a manifest error of assessment by including the subsidies for ‘over kilogram trout’ in the calculation of the subsidy amount per kilogram of purchased trout.
128    Moreover, it should be noted that the applicants merely make unsubstantiated assertions, stating, inter alia, that the information provided by the Government of Türkiye concerning the subsidised volumes and subsidies paid distinguished between trout of any size and large trout, so that the Commission could have satisfied itself that the subsidies benefiting large trout were allocated only to farmers of large trout. However, those assertions do not in themselves make it possible to assess the extent to which the Commission made a manifest error of assessment in the present case.
129    The same conclusion must be reached as regards the unsubstantiated nature of the applicants’ argument that all the exporting producers purchased their trout in the form of whole fish and not in the form of fillets. Annex C1 to the reply, relied on in support of that argument, cannot render implausible the assessment of the facts that was made by the Commission in the contested regulation, since the information contained in that annex in fact indicates only the purchases made by two companies, and therefore it cannot by itself support that argument.
130    More specifically, first, it should be noted that the company Fishark referred to in Annex C1 to the reply is not included in the list of applicants in Annex A2 to the application, and therefore the information relating to its purchases cannot usefully substantiate the applicants’ situation. Second, as regards the company Selina Balik İșleme Tesisi İthalat İhracat Ticaret Anonim Șirketi, the information contained in the annex makes no reference to product control numbers. Accordingly, that information does not enable the Court to verify whether the purchases made actually concerned trout in the form of whole fish.
131    Furthermore, that argument of the applicants, relied on in order to dispute the Commission’s assertion in recital 105 of the contested regulation that it was common practice in the industry to process some of the large harvested trout and to sell it as the product concerned, for example in the form of fillets, must be held, in the light of the case-law referred to in paragraphs 31 and 32 above, to be inadmissible. That argument must be understood as a factual argument of which the Commission was unaware when it adopted the contested regulation, since that assertion by the Commission, which was already set out in recital 45 of the implementing regulation relating to the first interim review, had not been commented on by the applicants during the various review investigation procedures.
132    In those circumstances and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be concluded that the Commission did not make a manifest error of assessment in the present case and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
133    The present plea must therefore be rejected.
The sixth plea in law, alleging infringement of Article 3 of Regulation 2016/1037, in so far as the Commission reached the incorrect conclusion that certain export loans granted to Gümüșdoğa by private banks had to be attributed to the Government of Türkiye
134    The applicants submit, in essence, that the Commission infringed Article 3 of Regulation 2016/1037 in so far as it concluded that certain export loans granted to Gümüșdoğa by private banks had to be attributed to the Government of Türkiye. In that regard, the applicants state, first of all, that those loans were granted by private banks, which are not owned, controlled or supervised by the Government of Türkiye. Next, they maintain that the Commission’s conclusions are based merely on presumptions rather than on evidence. In particular, they claim that the Commission cannot reasonably establish the existence of State intervention simply because the loans were granted at interest rates that were slightly lower than the reference rate used by the Commission. Lastly, they state that the Commission failed to analyse the evidence submitted by Gümüșdoğa, and in particular the loan agreements provided at various stages of the investigation, including in Gümüșdoğa’s response to the questionnaire.
135    The Commission disputes the applicants’ arguments.
136    As a preliminary point, it should be noted that the broad discretion enjoyed by the EU institutions in the sphere of measures to protect trade also covers the determination of the existence of a financial contribution within the meaning of Article 3(1) of Regulation 2016/1037 (see judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission, T‑111/20, EU:T:2022:809, paragraph 27 and the case-law cited).
137    It has also been recalled, in paragraph 21 above, that Article 3 of Regulation 2016/1037 provided, in essence, that a subsidy was deemed to exist if there was a ‘financial contribution’ by the government of the country of origin or export and if a ‘benefit’ was thereby conferred.
138    According to the case-law, the aim of Article 3(1)(a) of Regulation 2016/1037 is to define the concept of ‘financial contribution’ so as to exclude government measures that do not fall within one of the categories listed in that provision. It is with that in mind that Article 3(1)(a)(i) to (iii) of that regulation lists specific situations which must be regarded as involving a financial contribution by a government, namely the direct or indirect transfer of funds, foregone government revenue or the provision of goods or services or the purchase of goods, while Article 3(1)(a)(iv) of the basic regulation provides in its second indent that the act, for a government, of entrusting or directing a private body to carry out one or more of the type of functions listed in points (i), (ii) and (iii) is equivalent to the grant by that government of a financial contribution within the meaning of Article 3(1)(a) of Regulation 2016/1037 (see judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission, T‑111/20, EU:T:2022:809, paragraph 29 and the case-law cited).
139    It is apparent from Article 3(1)(a) of Regulation 2016/1037 and in particular from the words ‘a financial contribution by a government’ that the financial contribution must be attributable to a government. However, that provision contains no details as to the origin of the funds transferred. Thus, in paragraph 1(a)(i), that article includes in the concept of ‘financial contribution’ a ‘government practice’ which involves a direct transfer of funds, without adding requirements as to the origin of those funds. The fact that the source of the funds does not affect the classification of a government practice as a ‘financial contribution by a government’ is clearly apparent in the situation envisaged by the second indent of Article 3(1)(a)(iv), where a government entrusts or directs a private body to carry out certain functions such as the direct transfer of funds, without specifying the origin of the funds used. It is clear from those provisions that the concept of ‘financial contribution by a government’ covers all the financial means a government may actually use (judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission, T‑111/20, EU:T:2022:809, paragraph 30).
140    In the present case, it is apparent, in essence, from recitals 217 and 230 to 238 of the contested regulation that, during the investigation period concerned, the Commission found, as it had already done so during the original investigation and the expiry review investigation, that exporting producers had benefited from preferential export loans with a low interest rate, and from rediscount credits by Eximbank – a bank fully owned by the Turkish State and which acted as the Government of Türkiye’s main tool for promoting exports in the framework of Türkiye’s sustainable export strategy – or by other banks acting as banking agents on behalf of Eximbank.
141    As follows, in essence, from recitals 267 to 282 of the contested regulation, that financing, in view of the lack of sufficient information and evidence from the parties to conclude that it did not concern preferential schemes, was regarded by the Commission as countervailable subsidies under Article 3(1)(a)(i) of Regulation 2016/1037 and Article 3(2) of that regulation. The Commission considered, as in previous investigations, that that financing conferred benefits on its beneficiaries since it was granted at interest rates lower than those normally available on the market.
142    None of the arguments put forward by the applicants is capable of rendering those assessments by the Commission implausible.
143    In that regard, first, it should be noted that, contrary to what the applicants submit, those conclusions of the Commission, as follows from paragraphs 140 and 141 above, are not based solely on the extracts from Eximbank’s website, but also on Gümüșdoğa’s lack of sufficient information and evidence to demonstrate that those loans had been granted to it under market conditions, following negotiations with the banks or after an analysis of its creditworthiness by those banks.
144    Second, it should be noted that the applicants do not dispute that, first of all, Gümüșdoğa had received export loans from private banks at interest rates lower than those normally available on the market. More specifically, they do not dispute that Eximbank was involved in the context of certain export loans granted by private banks, as in the case of loan No 24. Next, Eximbank was a bank entrusted by the Government of Türkiye with supporting foreign trade and Turkish entrepreneurs or investors operating overseas, in order to increase exports by Turkish businesses and to strengthen their competitiveness on the international market. Lastly, Eximbank provided financial support, either directly or via agent banks working on a commission basis, such as export contingent pre- or post-shipment export credits and export-oriented investment credits to exporters, with the aim of increasing the competitiveness of Turkish exporters in foreign markets.
145    Third, as regards Annex A10 to the application, which, according to the applicants, supports their claim that Gümüșdoğa had communicated the loan agreements to the Commission, suffice it to note, as the Commission has done, that that annex does not contain any loan agreement. The documents set out therein, which are identified by the applicants in Annex C3 to the reply, are not loan agreements but are applications for credit submitted by Gümüşdoğa to banks. In any event, the documents set out in that annex do not contain any information to demonstrate that the loans in question were granted in accordance with market conditions, following negotiations with the banks and after an analysis of its creditworthiness by those banks.
146    As regards Annex A11 to the application, which, according to the applicants, contains JCR EuroAsia’s rating report, which they claim supports Gümüșdoğa’s extremely high creditworthiness, suffice it to note that that annex in fact contains only Gümüșdoğa’s comments on the Commission’s definitive disclosure, following the investigation procedure concerned. Moreover, those comments are limited to mere unsubstantiated assertions that, inter alia, the interest rates on the loans were set in accordance with market conditions, following negotiations with the banks and after an analysis of its creditworthiness by those banks. In any event, in the absence of a copy of the exchanges with the banks, the communication of JCR EuroAsia’s rating report in Annex C2 to the reply does not support the claim that the low interest rates were applied because of Gümüşdoğa’s creditworthiness.
147    As regards Annex A12 to the application, which, according to the applicants, contains loan agreement No 24 and which demonstrates the Commission’s error, namely that all the loans granted to Gümüșdoğa by private banks were granted with Eximbank’s involvement, suffice it to note that that annex does not contain any loan agreement. That annex consists solely of documents in Turkish which, read in the light of the translations set out in Annex C4 to the reply, relate only to applications for credit submitted by Gümüșdoğa to banks. In any event, those documents do not contain any information to demonstrate that the loans were granted in accordance with market conditions, following negotiations with the banks and after an analysis of its creditworthiness by those banks.
148    As regards Annex A13 to the application, which, according to the applicants, contains loan agreement No 25 and contradicts the Commission’s finding in recital 273 of the contested regulation, namely that the loans were granted at rates well below those published by the Central Bank of Türkiye, suffice it to note that that annex does not contain that loan agreement or any information referring to the interest rate that was applied to that loan. In any event, only the low-interest rate export loans were considered countervailable subsidies for the purposes of Article 3(1)(a)(i) and Article 3(2) of Regulation 2016/1037, and therefore the applicants’ reference to that agreement and to the rate that was applied to it is irrelevant.
149    It follows from the foregoing, without there being any need to examine the Commission’s contention that that evidence is inadmissible, that, contrary to what the applicants claim, the Commission did not make a manifest error of assessment in finding, in recitals 274 and 275 of the contested regulation, that the documentation provided by Gümüșdoğa during the investigation period concerned did not contain any loan agreement or any evidence capable of substantiating the claim that the loans in question had been granted to it on the basis of normal market conditions, its credit rating or negotiations.
150    Fourth, contrary to what the applicants claim, the Commission’s conclusion in recital 282 of the contested regulation, namely that all low-interest rate export loans were regarded as countervailable subsidies, is not contradicted by recital 277 of that regulation, according to which the Commission stated, in response to an argument put forward by Gümüșdoğa, that the only reason why certain export loans granted by private banks had not been included in the calculation of the benefit was that those loans had been granted in Turkish lira.
151    As is apparent from recital 273 of the contested regulation, the loans examined by the Commission, which were regarded as countervailable subsidies, were loans the interest rates of which were well below the interest rates published for loans in euros by the Central Bank of Türkiye. Moreover, it is also apparent from recital 81 of the implementing regulation relating to the expiry review that the implementation instructions for rediscount credit for exports and foreign exchange earning services constitute the legal basis for those credits.
152    Consequently, contrary to what the applicants maintain, no contradiction in the Commission’s reasoning can be inferred from recital 277 of the contested regulation. In any event, it must be observed that, even if the Commission had erred in not classifying the loans granted in Turkish lira as countervailable subsidies, that error would be beneficial to the applicants, on the basis that the number of loans capable of being regarded as countervailable subsidies was reduced.
153    In those circumstances and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be concluded that the Commission did not make a manifest error of assessment in the present case and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
154    The present plea must therefore be rejected.
The seventh plea in law, alleging infringement of Article 5 and Article 7(2) and (4) of Regulation 2016/1037, in so far as the Commission made manifest errors of assessment when calculating Gümüșdoğa’s subsidy margin
155    The present plea is based on five complaints. The first complaint relates to the benefit received under the ‘preferential loans’ scheme. The second complaint relates to the benefit received under the ‘income tax reductions’ scheme. The third complaint relates to the benefit received under the ‘export incentive support’. The fourth complaint relates to the benefit received under the ‘exhibition support’. The fifth complaint relates to the benefit received under the ‘Aegean Exporters’ Association support’.
156    As a preliminary point, it should be noted that the present plea does not concern Özpekler İnșaat Taahhüt Dayanıklı Tüketim Malları Su Ürünleri Sanayi ve Ticaret Ltd Șirketi and Selina Balık İșleme Tesisi İthalat İhracat Ticaret AȘ, referred to in numbers 11 and 13 in the list set out in Annex A2 to the application, because they do not have an interest in bringing proceedings, as the parties acknowledge.
The first complaint, relating to the benefit received under the ‘preferential loans’ scheme
157    The applicants submit that the Commission made a manifest error of assessment in finding, in essence, that preferential loan Nos 127 and 267 were conditional solely on the export of the product concerned, whereas they also related to other products, such as sea bream, sea bass and carp, as is clear and indisputable from the evidence submitted by Gümüșdoğa and from its comments on the definitive disclosure.
158    The Commission disputes the applicants’ arguments.
159    As a preliminary point, it is apparent from recital 284 of the contested regulation that the Commission allocated the benefit received in respect of preferential loans as follows:
–        export contingent loans reported as not related to the product concerned had no benefit allocated to the product under review;
–        export contingent loans where there was no such report had all their benefit allocated to the export turnover of the product concerned.
160    It is also apparent from recital 286 of the contested regulation that, in the context of the expiry review investigation, the Commission was able to allocate the benefit from some export contingent loans to the total export turnover, where justified by evidence. Given that some of those loans continued to be current in the investigation period concerned, the Commission was able to reach the same conclusion.
161    It is also apparent from recital 287 of the contested regulation that, for loans that were not examined in the expiry review investigation procedure, the Commission analysed the documentation that Gümüșdoğa provided with its questionnaire reply and in its subsequent submissions.
162    Lastly, it is apparent from recital 288 of the contested regulation that, where the documentation provided by Gümüșdoğa showed that the loan was contingent on the export of all products, the benefit was allocated over the total export turnover of the group. Otherwise, the benefit remained allocated over the export turnover of the product under review.
163    In the present case, the applicants complain that the Commission found that loan Nos 127 and 267 related only to the product concerned, whereas those loans also related to other products, such as sea bream, sea bass and carp, as was apparent from the documentation provided by Gümüșdoğa. In that regard, they refer to the evidence submitted by Gümüșdoğa in its response to the exporter questionnaire and in its comments on the definitive disclosure, and refer to an extract from its response to the questionnaire produced in Annex A15 to the application.
164    More specifically, first, the applicants refer to the annex ‘E-2.1.3 Loans’ to Gümüșdoğa’s response to the exporter questionnaire (TRON save number t21.007614), produced during the review procedure. According to the applicants, that annex clearly and indisputably demonstrates that those loans were not limited to the product concerned.
165    However, it should be noted that the applicants have not identified, either in the application or in the reply, which one of the nineteen annexes produced in the application is capable of supporting their claims. In accordance with the case-law, it is not for the Court to seek and identify in the annexes the passages which might demonstrate the truth of the applicants’ assertions (see, to that effect, judgment of 15 October 2020, Zhejiang Jiuli Hi-Tech Metals v Commission, T‑307/18, not published, EU:T:2020:487, paragraph 239 and the case-law cited). By failing to specify the passages of the annexes that are capable, in the applicants’ view, of supporting their claims, the applicants have in fact confined themselves to making a general reference which is not permitted pursuant to the case-law. Moreover, by substituting itself for the applicants in identifying passages of the annexes which could support their claims, the Court could be led to neglect its duty of impartiality (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 111).
166    Second, the applicants refer to Annex 8, entitled ‘Closure documents of export loans’, attached to Gümüşdoğa’s comments on the definitive disclosure (TRON save number t21.005000), which, according to the information provided in Annex C3, is set out on pages 286 to 288 and 475 to 481 of Annex A10 to the application. However, first, as is apparent from the content of Annex C3 to the reply, those pages concern only loan No 127 and not loan No 267. Second, the documents in those pages do not support the manifest error of assessment alleged to have been made by the Commission, since they do not refer to any product.
167    Third, the applicants refer to an extract from Gümüșdoğa’s response to the loan questionnaire, produced in Annex A15 to the application. That annex, which consists of approximately 38 pages, contains, with the exception of pages 774 and 797 to 799 which are in English, only documents in Turkish, which does not enable the Court to determine how those documents constitute evidence of the alleged manifest error of assessment. As for the documents which are in English, they do not refer to any product. Furthermore, the documents in Annex C6 to the reply, which, according to the applicants, correspond to the translations of the documents in Turkish produced by Gümüșdoğa in response to the loan questionnaire and set out in Annex A15 to the application, were not produced during the investigation, as the applicants confirmed at the hearing, following a question from the Court. The Commission cannot therefore be criticised for not having taken them into consideration. In that regard, it should be noted that it is apparent from recital 286 of the contested regulation that, since Gümüșdoğa had submitted in good time evidence demonstrating that some of the loans granted did not relate solely to the product concerned, the Commission took that evidence into account.
168    It follows that, by merely referring to Gümüșdoğa’s own response to the anti-subsidy questionnaire, the applicants have not provided any evidence, or even an indication, that the loans at issue also related to products other than the product concerned. Thus, the applicants have not proved their allegation that the Commission made a manifest error of assessment.
169    In those circumstances and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be concluded that the Commission did not make a manifest error of assessment in the present case and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
170    The present complaint must therefore be rejected.
The second complaint, relating to the benefit received under the ‘income tax reductions’ scheme
171    The applicants submit, in essence, that the Commission made a manifest error of assessment by allocating the total benefit deriving from the income tax reductions to all the products manufactured by Gümüșdoğa, instead of allocating the benefit deriving from each reduction to the product referred to in the investment incentive certificate, which constituted the legal basis for the reduction in question.
172    The Commission disputes the applicants’ arguments.
173    As a preliminary point, it is apparent from recital 172 of the contested regulation, without this being disputed, that, during the investigation period concerned, Gümüșdoğa benefited from income tax reductions.
174    It is also apparent from recital 174 of the contested regulation that, as was confirmed in the original investigation and in the expiry review investigation, support for investment was considered, where it took the form of a tax incentive, to be a subsidy within the meaning of Article 3(1)(a)(ii) and Article 3(2) of Regulation 2016/1037.
175    It is also apparent from recital 177 of the contested regulation that, in order to establish the amount of the countervailable subsidy for tax exemptions, the benefit conferred on the recipients was calculated as the difference between the total tax payable according to the normal tax rate and the total tax payable under the reduced tax rate.
176    Lastly, it is apparent from recitals 189 and 190 of the contested regulation that the benefit received by Gümüșdoğa was allocated over the group’s total turnover and not, as it claimed, over the various products referred to in the investment support certificates on which the tax reductions were based.
177    It is therefore necessary to ascertain whether the applicants have put forward evidence capable of demonstrating that the Commission made a manifest error of assessment by acting in that way.
178    In the present case, it should be noted, as is apparent from recitals 169 and 170 of the contested regulation and from Annex B2 to the defence, that the support scheme for undertakings, established by the Government of Türkiye, was aimed at:
–        increasing production and employment,
–        encouraging large investments contributing to international competitiveness,
–        stimulating direct foreign investments,
–        supporting investments for environmental protection activities and research and development activities, in line with the targets set in various annual Turkish development plans and programmes that are specified below.
179    The support scheme for undertakings was regulated and implemented by Decree No 2012/3305 and by Communiqué No 2012/1, which included two schemes:
–        regional investment incentives, including support for value added tax (VAT) exemption, customs duty exemptions, tax deduction, social security premium support (employer’s share), interest support, land allocation, income tax withholding and social security premium support (employee’s share);
–        general investment incentives, including support for VAT exemption, customs duty exemptions and income tax withholding.
180    It is also apparent from Annex B2 to the defence, which corresponds to the notification sent by the Government of Türkiye to the WTO concerning those incentive measures, that the tax deduction relating to income tax was applied to investment income according to the characteristics of the investment until the amount calculated on the basis of the government contribution rate, determined by the same scheme and corresponding to a certain percentage of the fixed amount of the investment, was reached.
181    It follows from the foregoing that the tax reductions granted under that scheme were based on the investments made by the companies in order, inter alia, to increase their competitiveness and were not, as the applicants maintain, based on a particular product which they manufactured.
182    Therefore, as the Commission submits, that support constituted support given to the company, which benefited all of that company, and therefore also benefited the export sales of the product concerned to the European Union. Thus, the applicants’ interpretation that that support scheme was paid to the company for a particular product must be rejected.
183    Moreover, contrary to what the applicants submit, their interpretation of that scheme is not supported by the evidence produced in Annex A16 to the application. That evidence, which corresponds to the investment incentive certificates and corporation tax returns provided by Gümüșdoğa during the investigation period concerned, does not contain any reference to the product concerned, and therefore it cannot establish the alleged link between the product concerned and the tax reduction granted under that scheme. For the same reasons, the Commission cannot be criticised for not having drawn a distinction between whether or not the reductions granted were linked to the product concerned.
184    On the basis of those facts and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, the Commission found, without making a manifest error of assessment, that the benefit received by Gümüșdoğa in respect of those tax reductions had to be allocated over its total turnover, given that that benefit was not linked to a specific product.
185    That conclusion is not called into question by Annexes C7 and C8 to the reply. The documents set out in those annexes, which correspond to, respectively, Gümüșdoğa’s tax returns and to a table concerning the calculation of its tax, do not contain any reference to the product concerned. Moreover, as the Commission submits, the fact that the amounts set out in those annexes are consistent means only that the reductions were granted. That says nothing about the alleged link between the product concerned and the tax reduction granted under that scheme.
186    Moreover, contrary to what the applicants maintain, the Commission did not, in the present case, follow an approach differing from that used for preferential loans. As stated in recital 286 of the contested regulation, where there was evidence supporting doing so, the Commission was able to allocate the benefit from some export contingent loans to total export turnover. In the present case, no relevant evidence was submitted by Gümüșdoğa during the investigation procedure concerned, as stated in paragraph 183 above.
187    It follows from all of the foregoing that the Commission did not make a manifest error of assessment and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
188    The present complaint must therefore be rejected.
The third complaint, relating to the advantage received by way of ‘export incentive support’
189    The applicants submit, on the basis of Article 7(4) of Regulation 2016/1037 and section F(a)(ii) of the Commission Communication entitled ‘Guidelines for the calculation of the amount of subsidy in countervailing duty investigations’ (OJ 1998 C 394, p. 6), that the Commission wrongly attributed to the investigation period concerned certain benefits received by way of ‘export incentive support’. In their view, the fact that the subsidies received by Gümüșdoğa were recorded in 2020 does not necessarily mean that the support has to be attributed to the investigation period concerned.
190    The Commission disputes the applicants’ arguments.
191    As a preliminary point, it is apparent, in essence, from recitals 197 and 200 of the contested regulation that, during the investigation period concerned, Gümüșdoğa received, into an account entitled ‘Ministry of Economy Export Incentives’, funds from the Government of Türkiye, which it recorded as revenue. According to Gümüșdoğa, those funds were, in accordance with Decree No 2014/8 which was published in the Turkish Official Journal No 29109 of 4 September 2014, intended to support undertakings carrying out industrial or commercial activities in Türkiye in order to enable them to acquire market access certificates and to ensure their participation in the global supply chain.
192    It is also apparent, in essence, from recitals 203, 205 and 207 of the contested regulation that, according to the Commission, those funds constituted, first, a subsidy, within the meaning of Article 3(1)(a)(i) of Regulation 2016/1037, that was export contingent, since it was a reimbursement of expenditure on export transactions in order to gain access to foreign markets, such as the costs of certification and quality control and, second, a benefit, within the meaning of Article 3(2) of Regulation 2016/1037, on account of the amount of revenue received. That benefit was recorded during the investigation period concerned.
193    By recording that subsidy under the investigation period concerned, the Commission, according to the applicants, made a manifest error of assessment, in the light of Article 5 and Article 7(4) of Regulation 2016/1037 and of section F(a)(ii) of its Communication entitled ‘Guidelines for the calculation of the amount of subsidy in countervailing duty investigations’.
194    In the present case, it should be noted at the outset that section F(a)(ii) of the Commission Communication entitled ‘Guidelines for the calculation of the amount of subsidy in countervailing duty investigations’ relates to non-recurring subsidies, which can be linked to the acquisition of fixed assets. As the applicants state in their pleadings, the funds received concerned expenditure incurred in connection with water analysis, which formed part of costs associated with quality control, and were not incurred in respect of the acquisition of fixed assets. Those funds therefore did not fall within the scope of the abovementioned provision. Accordingly, the Commission cannot validly be accused of any infringement of that provision, nor can any manifest error of assessment be found on the basis of that provision.
195    Next, Article 5 of Regulation 2016/1037 provides as follows:
‘The amount of countervailable subsidies shall be calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period for subsidisation. Normally this period shall be the most recent accounting year of the beneficiary, but may be any other period of at least six months prior to the initiation of the investigation for which reliable financial and other relevant data are available.’
196    Article 7(4) of Regulation 2016/1037 states that ‘where a subsidy cannot be linked to the acquisition of fixed assets, the amount of the benefit received during the investigation period shall in principle be attributed to that period, and allocated as described in paragraph 2, unless special circumstances arise justifying attribution over a different period’.
197    It is not disputed by the applicants that, during the investigation period concerned, Gümüșdoğa received, and recorded as revenue, funds paid by the Government of Türkiye. Nor is it disputed that those funds were subsidies, within the meaning of Article 3(1)(a)(i) of Regulation 2016/1037, that were export contingent, since they were a reimbursement of expenditure incurred on export transactions in order to gain access to foreign markets, such as the costs of certification and quality control. Nor is it disputed that those funds conferred a benefit, within the meaning of Article 3(2) of Regulation 2016/1037, represented by the amount of revenue received and recorded. It is also not disputed that no particular circumstance was relied on to justify that benefit being attributed to a period other than the relevant period.
198    Lastly, the fact that some of the applications in respect of that support scheme were submitted by Gümüșdoğa prior to the investigation period concerned is not such as to call into question that conclusion, since the funds were received and recorded as revenue during that period and Gümüșdoğa did not rely on any circumstance to justify attributing that benefit to another period.
199    In those circumstances and having regard to the broad discretion conferred on the Commission by the case-law referred to in paragraph 14 above, it must be concluded that the Commission did not make a manifest error of assessment in the present case and that the applicants have failed to adduce sufficient evidence to render implausible the assessment of the facts that was made in the contested regulation.
200    The present complaint must therefore be rejected.
The fourth complaint, relating to the benefit received by way of ‘exhibition support’
201    The applicants submit that the Commission made a manifest error of assessment in attributing the benefits received by Gümüșdoğa, in respect of ‘exhibition support’, to the product concerned exported to the European Union during the investigation period concerned. The evidence submitted during the investigation clearly shows, in their view, that the support received under that scheme concerned Gümüșdoğa’s participation in a trade fair in the United States from 17 to 19 March 2019.
202    The Commission contends, in essence, that the question of whether or not that support related to Gümüșdoğa’s participation in a trade fair in the United States does not call into question the finding, which was not disputed, that Gümüșdoğa had obtained a grant in 2020 from the Government of Türkiye which had benefited all of its production. The applicants have not adduced any evidence to demonstrate that the benefit extended only to exports to the United States.
203    As a preliminary point, it is apparent, in essence, from recitals 197 and 201 of the contested regulation, that, during the investigation period concerned, Gümüșdoğa received, into an account entitled ‘Exhibition Support Income’, funds from the Government of Türkiye which Gümüșdoğa recorded as revenue. According to Gümüșdoğa, that aid was governed by ‘Decree No 2017/4 on support for participation in trade fairs abroad’, published in the Turkish Official Journal No 30031 of 7 April 2017. According to that decree, exporters could apply for reimbursement for their participation in trade fairs organised abroad.
204    It is also apparent, in essence, from recitals 204, 205 and 207 of the contested regulation that, according to the Commission, those funds constituted, first, a subsidy, within the meaning of Article 3(1)(a)(i) of Regulation 2016/1037, that was export contingent, since they were intended for the promotion of exports through trade fairs abroad and, second, a benefit, within the meaning of Article 3(2) of Regulation 2016/1037, on account of the amount of revenue received. That benefit was recorded during the investigation period concerned.
205    In that regard, it is sufficient to note that it is common ground between the parties that the support received by Gümüșdoğa under that scheme was linked to its participation in an international trade fair organised in Boston (United States) between 17 and 19 March 2019, as shown by Annex A18 to the application. There is nothing in the file to support the conclusion that that support was also linked to the product concerned exported to the European Union during the investigation period concerned. In those circumstances, it is irrelevant that that support was received and recorded during the investigation period concerned.
206    Consequently, the approach followed by the Commission in the contested regulation, consisting of allocating the benefit received under that scheme to the total export turnover of the group during the relevant period, and then attributed to the product concerned, does not appear to be substantiated.
207    That conclusion is not called into question by the Commission’s argument that Gümüșdoğa did not provide evidence during the investigation to prove that the support in question had been received under a scheme that was limited to favouring exports to the United States.
208    To follow the Commission’s line of argument would amount to reversing the burden of proof. Pursuant to Regulation 2016/1037, it is for the Commission, as the investigating authority, to establish that the product in question has been subsidised, that there has been injury and that there is a causal link between the subsidised imports and the injury (see, by analogy, judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 136 and the case-law cited). Thus, contrary to what the Commission maintains, it was not for the applicants to demonstrate that the support received was limited to favouring exports to the United States. In particular, it was for the Commission to demonstrate, on the basis of evidence or at least indicia, that, notwithstanding the fact that that support was linked to Gümüșdoğa’s participation in an international trade fair organised in Boston, the support also benefited exports of the product concerned to the European Union during the investigation period concerned. Mere assertions, conjecture or uncertain considerations cannot, in themselves, suffice.
209    In those circumstances, it must be held that, by recording, under the investigation period concerned, the support received by Gümüșdoğa for a trade fair in the United States in the context of the exhibition support scheme, the Commission made a manifest error of assessment.
210    The present complaint is therefore well founded.
The fifth complaint, relating to the benefit received by way of ‘Aegean Exporters’ Association support’
211    The applicants submit that the Commission made a manifest error of assessment in attributing the benefits received by Gümüșdoğa, by way of ‘Aegean Exporters’ Association support’, to the product concerned exported to the European Union during the investigation period concerned. That scheme is, according to the applicants, intended to cover air cargo transport costs. Gümüșdoğa did not send any products to the European Union by means of air cargo during that period, as shown by the evidence produced during the investigation.
212    The Commission contends, in essence, that the fact that the aid was linked to air transport costs did not mean that the benefit received applied only to transactions carried out by air transport. Since money is fungible, once the subsidy has been received, it can be used in any way whatsoever. However, in the Commission’s view, Gümüșdoğa has not provided any evidence to show that the benefit received was used only for transactions in respect of exports to other markets.
213    As a preliminary point, it is apparent, in essence, from recitals 197 and 199 of the contested regulation that, during the investigation period concerned, Gümüșdoğa received, into an account entitled ‘Aegean Exporters’ Association Support’, funds from the Government of Türkiye which Gümüșdoğa recorded as revenue. According to Gümüșdoğa, that aid was linked to support in respect of air transport. The aid was governed by the ‘Presidential Decree No 2552 of 16 May 2020 on support for air cargo transportation expenses’ for the period of May to July 2020.
214    It is also apparent, in essence, from recitals 202, 205 and 207 of the contested regulation that, according to the Commission, those funds constituted, first, a subsidy, within the meaning of Article 3(1)(a)(i) of Regulation 2016/1037, that was export contingent, since it was a reimbursement of export transport costs that was specific to exporters in certain sectors, including aquaculture, and, second, a benefit, within the meaning of Article 3(2) of Regulation 2016/1037, on account of the amount of revenue received. That benefit was recorded during the investigation period concerned.
215    In that regard, first, it is common ground between the parties that the support received under that scheme was linked to air transport costs and was not exclusive of the product concerned.
216    Second, it is apparent from Annex A19 to the application, without it being disputed by the Commission, that, during the investigation period concerned, the exports of the product concerned to the European Union were carried out by Gümüșdoğa by road transport and not by air transport.
217    In those circumstances and since it is common ground that the support received was linked to air transport costs, that it was not exclusive of the product concerned and that the exports of that product to the European Union were not carried out by Gümüșdoğa through that means of transport, the approach followed by the Commission in the contested regulation, consisting in allocating the benefit received under that scheme to the total export turnover of the group during the relevant period, and then attributed to the product concerned, does not appear to be substantiated. It is also irrelevant that that benefit was received and recorded during the investigation period concerned.
218    That conclusion is not called into question by the Commission’s argument that Gümüșdoğa did not provide evidence during the investigation to prove that the benefit resulting from that support had been used only for exports to markets other than the European Union.
219    As stated in paragraph 208 above, to follow that line of argument of the Commission would amount to reversing the burden of proof. Therefore, contrary to what the Commission submits, it was not for the applicants to demonstrate that the benefit resulting from that support was used only for exports to other markets. In particular, it was for the Commission to demonstrate, on the basis of evidence or at least indicia, that that support also extended to exports of the product concerned to the European Union during the investigation period concerned. Mere assertions, conjecture or uncertain considerations cannot, in themselves, suffice.
220    In those circumstances, it must be held that, by recording, under the investigation period concerned, the support received by Gümüșdoğa in the context of the air transport support scheme, the Commission made a manifest error of assessment.
221    The present complaint is therefore well founded.
222    The fourth and fifth complaints in the present plea must therefore be upheld.
223    The inclusion of the subsidies received by Gümüșdoğa by way of ‘exhibition support’ (fourth complaint) and ‘Aegean Exporters’ Association support’ (fifth complaint) among the export aid received for the product concerned during the investigation period concerned had the effect of artificially increasing the amount of that aid and, consequently, vitiated the entire calculation of the countervailing duty applied to the applicants to whom the seventh plea relates (see paragraph 156 above).
224    Consequently, the action must be upheld in its entirety with regard to the applicants to whom the seventh plea relates, in so far as the Commission wrongly included, in the calculation of the amount of the countervailing duty applicable to those applicants, the benefits received by Gümüșdoğa by way of ‘exhibition support’ and ‘Aegean Exporters’ Association support’, which vitiated that calculation in its entirety.
225    On the basis of those conclusions, the contested regulation must be annulled in so far as it concerns the applicants, with the exception of Özpekler İnșaat Taahhüt Dayanıklı Tüketim Malları Su Ürünleri Sanayi ve Ticaret and Selina Balık İșleme Tesisi İthalat İhracat Ticaret. The action is dismissed as to the remainder.
Costs
226    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.
227    Since the Commission has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Annuls Commission Implementing Regulation (EU) 2022/2390 of 7 December 2022 amending the definitive countervailing duty imposed on imports of certain rainbow trout originating in Türkiye by Implementing Regulation (EU) 2021/823 following a partial interim review pursuant to Article 19 of Regulation (EU) 2016/1037 of the European Parliament and of the Council in so far as it concerns Ege İhracatçıları Birliği and the other applicants whose names are set out in the annex, with the exception of Özpekler İnșaat Taahhüt Dayanıklı Tüketim Malları Su Ürünleri Sanayi ve Ticaret Ltd Șirketi and Selina Balık İșleme Tesisi İthalat İhracat Ticaret AȘ;
2.      Dismisses the action as to the remainder;
3.      Orders the European Commission to pay the costs.
Costeira
Kancheva
Öberg
Delivered in open court in Luxembourg on 5 February 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.
1      The list of the other applicants is annexed only to the version sent to the parties.