JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
15 September 2016 (*)
(Dumping — Imports of biodiesel originating in Argentina — Definitive anti-dumping duty — Action for annulment — Trade association — Direct concern — Individual concern — Admissibility — Article 2(5) of Regulation (EC) No 1225/2009 — Normal value — Production costs)
In Cases T‑112/14 to T‑116/14 and T‑119/14,
Molinos Río de la Plata SA, established in Buenos Aires (Argentina),
applicant in Case T‑112/14,
Oleaginosa Moreno Hermanos SACIFI y A, established in Bahia Blanca (Argentina),
applicant in Case T‑113/14,
Vicentin SAIC, established in Avellaneda (Argentina),
applicant in Case T‑114/14,
Aceitera General Deheza SA, established in General Deheza (Argentina),
applicant in Case T‑115/14,
Bunge Argentina SA, established in Buenos Aires,
applicant in Case T‑116/14,
Cámara Argentina de Biocombustibles (Carbio), established in Buenos Aires (Argentina),
applicant in Case T‑119/14,
represented by J.-F. Bellis, R. Luff and G. Bathory, lawyers,
v
Council of the European Union, represented initially by S. Boelaert and B. Driessen, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers,
defendant,
supported by
European Commission, represented by M. França and A. Stobiecka-Kuik, acting as Agents,
and by
European Biodiesel Board (EBB), established in Brussels (Belgium), represented by O. Prost and M.-S. Dibling, lawyers,
interveners,
ACTIONS pursuant to Article 263 TFUE, in Case T‑119/14, for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), and, in Cases T‑112/14 and T‑116/14, for annulment of that regulation in so far as it imposes an anti-dumping duty on the applicants in those cases,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure and further to the hearing on 28 October 2015,
gives the following
Judgment
Background to the dispute and the contested regulation
1        The applicant in Case T‑112/14, Molinos Río de la Plata SA, the applicant in Case T‑113/14, Oleaginosa Moreno Hermanos SACIFI y A, the applicant in Case T‑114/15, Vicentin SAIC, the applicant in Case T‑115/14, Aceitera General Deheza SA, and the applicant in Case T‑116/14, Bunge Argentina SA (‘the applicants in Cases T‑112/14 to T‑116/14’), are Argentinian biodiesel producers.
2        The applicant in Case T‑119/14, Cámara Argentina de Biocombustibles (Carbio), is an association governed by Argentinian law which represents the interests of its members, which are Argentinian biodiesel producers and exporters. Its members are Unitec Bio SA, Cargill SAIC, LDC Argentina SA, Renova SA, T6 Industrial SA, Explora SA, Patagonia Bioenergia SA and Noble Argentina SA, and the applicants in Cases T‑112/14 to T‑116/14.
3        Biodiesel, an alternative fuel similar to conventional diesel, is produced in the European Union, but it is also imported in large quantities. In Argentina, it is mainly produced from soya beans and soybean oil (‘the main raw materials’).
4        Following a complaint lodged on 17 July 2012 by the European Biodiesel Board (EBB) on behalf of producers accounting for more than 60% of the total production of biodiesel in the European Union, the European Commission published, on 29 August 2012, a notice of initiation of an anti-dumping proceeding concerning imports of biodiesel originating in Argentina and Indonesia (OJ 2012 C 260, p. 8), in accordance with Article 5 of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (‘the basic regulation’).
5        The investigation of dumping and injury covered the period from 1 July 2011 to 30 June 2012 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2009 to the end of the investigation period.
6        Owing to the large number of Argentinian exporting producers, the Commission, in the context of the investigation in question, selected a sample of three exporting producers or groups thereof on the basis of the largest representative volume of exports of the product concerned to the European Union. The applicants in Cases T‑112/14 to T‑116/14 were included in that sample.
7        On 27 May 2013, the Commission adopted Regulation (EU) No 490/2013 imposing a provisional anti-dumping duty on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 141, p. 6) (‘the provisional regulation’). In that regulation, the Commission found, inter alia, that imports of biodiesel originating in Argentina were dumped, causing injury to the European Union industry, and took the view that the adoption of an anti-dumping duty on those imports was in the interest of the European Union.
8        As regards calculation of the dumping margin and, more specifically, determination of the normal value of the like product in respect of Argentina, the Commission took the view that domestic sales were not made in the ordinary course of trade, since the Argentinian market was heavily regulated by the State. Consequently, the Commission decided to apply Article 2(3) of the basic regulation, which provides that when there are no sales of that product in the ordinary course of trade it is necessary to construct the normal value of that product by calculating it on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country provided that those prices are representative.
9        As regards the costs of production of biodiesel originating in Argentina, the Commission noted that the EBB had claimed that the production costs included in the records of the Argentinian exporting producers examined did not reasonably reflect biodiesel production costs. That assertion concerned Argentina’s Differential Export Tax system (‘the DET system’), which, according to the complainants, created a distortion of the prices of the main raw materials. Taking the view that it did not have, at that stage, enough information to make a decision as to the most appropriate way to address that claim, the Commission decided to calculate the normal value of biodiesel on the basis of the production costs included in those records, while indicating, however, that that question would be examined in greater depth at the definitive stage of the investigation.
10      On 19 November 2013, the Council of the European Union adopted Implementing Regulation (EU) No 1194/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2) (‘the contested regulation’).
11      In the first place, as regards the normal value of the like product in respect of Argentina, the Council confirmed the findings in the provisional regulation, to the effect that that value should be calculated pursuant to Article 2(3) of the basic regulation, since the Argentinian biodiesel market is heavily regulated by the State (recital 28 of the contested regulation).
12      As regards the production costs, the Council accepted the Commission’s proposal to alter the findings of the provisional regulation and to disregard the costs of the main raw materials indicated in the records of the Argentinian exporting producers examined pursuant to Article 2(5) of the basic regulation. According to the Council, that data did not reasonably reflect the costs associated with biodiesel production in Argentina, on account of the fact that the DET system created a distortion of the prices of the main raw materials in the Argentinian domestic market. It replaced them with the average of the reference prices of soya beans published by the Argentinian Ministry of Agriculture for free-on-board (FOB) export during the investigation period (‘the reference price’) (recitals 35 to 40 of the contested regulation).
13      In the second place, the Council confirmed most of the findings included in the provisional regulation and stated that the European Union industry had suffered significant injury within the meaning of Article 3(6) of the basic regulation (recitals 105 to 142 of the contested regulation) and that that injury had been caused by dumped imports of biodiesel originating in Argentina (recitals 144 to 157 of the contested regulation). In that context, the Council noted that other factors, including, inter alia, imports made by the European Union industry (recitals 151 to 160 of the contested regulation), low capacity utilisation of the European Union industry (recitals 161 to 171 of the contested regulation) and the system of double counting of biodiesel produced from waste oils existing in some Member States (recitals 173 to 179 of the contested regulation) had not been capable of breaking that causal link.
14      In the third place, the Council confirmed that the adoption of the anti-dumping measures in question remained in the European Union’s interest (recitals 190 to 201 of the contested regulation).
15      In view of the dumping margins found and the level of injury caused to the European Union industry, the Council decided, inter alia, that the amounts secured by way of the provisional anti-dumping duty, imposed by the provisional regulation, should be definitively collected (recital 228 and Article 2 of the contested regulation) and that a definitive anti-dumping duty should be imposed on imports of biodiesel originating in Argentina (Article 1(1) of the contested regulation).
16      In Article 1(2) of the contested regulation, the rates of definitive anti-dumping duties applicable to the product in question, in respect of Argentinian imports, were as follows:
Company
Duty rate euro per tonne net
TARIC additional code
Aceitera General Deheza, General Deheza, Rosario; Bunge Argentina, Buenos Aires
216.64
B782
LDC Argentina, Buenos Aires
239.35
B783
Molinos Río de la Plata, Buenos Aires; Oleaginosa Moreno Hermanos, Bahia Blanca; Vicentin, Avellaneda
245.67
B784
Other cooperating companies:
Cargill, Buenos Aires; Unitec Bio, Buenos Aires; Viluco SA, Tucuman
237.05
B785
All other companies
245.67
B999
17      Following a further complaint from the EBB, the Commission also conducted, at the same time as the anti-dumping proceeding, an anti-subsidy proceeding in respect of imports into the European Union of biodiesel originating in Argentina and Indonesia. After that complaint was withdrawn by letter of 7 October 2013, that proceeding was closed, without the imposition of definitive duties, by Commission Regulation (EU) No 1198/2013 of 25 November 2013 terminating the anti-subsidy proceeding concerning imports of biodiesel originating in Argentina and Indonesia and repealing Regulation (EU) No 330/2013 making such imports subject to registration (OJ 2013 L 315, p. 67).
Procedure and forms of order sought
18      By applications lodged at the Court Registry on 17 February 2014, the applicants in Cases T‑112/14 to T‑116/14 brought their actions. By application lodged at the Court Registry on 18 February 2014, the applicant in Case T‑119/14 brought its action.
19      On 2 June 2014, the Council lodged its defences in those cases. The replies and rejoinders in those cases were lodged, respectively, on 6 August 2014 by the applicants and 21 October 2014 by the Council.
20      By documents lodged at the Court Registry, on 13 May and 2 June 2014 respectively, the Commission and the EBB sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By orders of 17 July and 22 September 2014, the President of the Ninth Chamber of the General Court granted them leave to intervene. The interveners submitted their statements in intervention and the other parties submitted their observations thereon within the prescribed time limits.
21      Acting on a report of the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure.
22      By order of 30 September 2015, the present cases and Cases T‑111/14, Unitec Bio v Council, T‑117/14, Cargill v Council, and T‑118/14, LDC Argentina v Council, were joined for the purposes of the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 28 October 2015.
23      By way of measures of organisation of procedure, the Court (Ninth Chamber) requested information from the parties and invited them to submit their comments on the replies of the other parties.
24      After hearing the views of the parties on this point, the Court (Ninth Chamber) decided to join the present cases for the purposes of the final decision.
25      The applicants in Cases T‑112/14 to T‑116/14 claim that the Court should:
–        annul the contested regulation in so far as it concerns them;
–        order the Council to pay the costs.
26      In Case T‑119/14, the applicant claims that the Court should:
–        annul the contested regulation;
–        order the Council to pay the costs.
27      The Council, supported by the Commission and by the EBB, contends that the Court should:
–        dismiss the actions in Cases T‑112/14 and T‑116/14 as unfounded;
–        dismiss the action in Case T‑119/14 as manifestly inadmissible and, in the alternative, as unfounded;
–        order the applicants to pay the costs.
Law
Admissibility
28      The Council, while not raising a formal plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court of 2 May 1991, contests the admissibility of the action in Case T‑119/14. It submits that the applicant in that case is neither a producer nor an exporter of biodiesel but an association set up to promote the collective interests of Argentinian biodiesel producers and exporters. The applicant does not claim that any legal provision which expressly recognises a right for associations has been infringed or that it is differentiated because its own interests are affected. Moreover, it is not acting on behalf of members which have not brought individual actions, but on behalf of those whose individual actions were admissible. All its members which are individually and directly concerned by the contested regulation have filed separate applications for annulment.
29      The applicant in Case T‑119/14  disputes those arguments.
30      In that regard, it should be recalled at the outset that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
31      The applicant in Case T‑119/14 is not the addressee of the contested regulation within the meaning of the first situation in the fourth paragraph of Article 263 TFEU. Its action is likewise not admissible on the basis of the third situation referred to in that paragraph, since the contested regulation includes, like all regulations imposing anti-dumping duties, implementing measures (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, EU:T:2014:143, paragraphs 32 to 37).
32      It is therefore necessary to establish whether the applicant’s action in Case T‑119/14 is admissible by virtue of the second situation provided for in the fourth paragraph of Article 263 TFEU.
33      More particularly, actions brought by associations have been held to be admissible in three well-defined situations: (i) where a legal provision expressly grants trade associations a series of procedural rights; (ii) where the association represents the interests of undertakings which would be entitled to bring proceedings in their own right and (iii) where the association is differentiated because its own interests as an association are affected, and especially where its position as negotiator is affected by the measure which it seeks to have annulled (see order of 30 September 1997, Federolio v Commission, T‑122/96, EU:T:1997:142, paragraph 61 and the case-law cited).
34      The applicant in Case T‑119/14 does not adduce any evidence to show that the conditions for the first or third situation referred to in paragraph 33 above could be met. However, it submits that, in the present case, the conditions for the second situation referred to in that paragraph are met.
35      As is apparent from the case-law, in the second situation referred to in paragraph 33 above, an association’s ability to bring an action is based on the consideration that an action brought by an association presents procedural advantages, since it obviates the institution of numerous separate actions against the same acts, as the association has substituted itself for one or more of its members whose interests it represents, who could themselves have brought an admissible action (judgment of 6 July 1995, AITEC and Others v Commission, T‑447/93 to T‑449/93, EU:T:1995:130, paragraph 60).
36      As the Court has held, in the second situation referred to in paragraph 33 above, an association may not rely on the fact that it represents the interests of members which have brought their own actions, since they are representing their own interests (judgment of 11 June 2009, Confservizi v Commission, T‑292/02, EU:T:2009:188, paragraph 55, and order of 29 March 2012, Asociación Española de Banca v Commission, T‑236/10, EU:T:2012:176, paragraphs 25 to 29).
37      In accordance with that case-law, the applicant in Case T‑119/14 may not claim to represent the interests of the applicants in Cases T‑112/14 to T‑116/14, or those of its members Unitec Bio, Cargill and LDC Argentina, which have also brought their own actions (Cases T‑111/14, T‑117/14 and T‑118/14).
38      By contrast, its members Noble Argentina, Explora, Patagonia Bioenergia, Renova and T6 Industrial have not brought actions against the contested regulation.
39      In accordance with the case-law referred to in paragraph 35 above, it must be examined whether Noble Argentina, Explora, Patagonia Bioenergia, Renova and T6 Industrial were in a position to bring admissible actions by virtue of the fourth paragraph of Article 263 TFEU. Since the contested regulation was not addressed to those companies, it must be examined whether it is of direct and individual concern to them.
40      In the first place, as regards individual concern, it must be noted that natural or legal persons can claim to be individually concerned by a European Union act only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (judgment of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 95, 107).
41      Regulations introducing anti-dumping duties are, in their nature and scope, legislative in that they apply to the majority of interested traders.
42      However, according to case-law, it is not excluded that certain traders may be individually concerned by provisions of an anti-dumping regulation.
43      First, the Court has held that particular provisions of regulations imposing anti-dumping duties may be of individual concern to those producers and exporters of the product in question who are charged with practising dumping on the basis of data relating to their commercial activities. This is true in general of producers and exporters who are able to establish that they were identified in the acts adopted by the Commission and the Council or were concerned by the preliminary investigations (see judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraph 11 and the case-law cited, and of 13 September 2013, Huvis v Council, T‑536/08, not published, EU:T:2013:432, paragraph 25 and the case-law cited).
44      Secondly, certain provisions of regulations imposing anti-dumping duties are of individual concern to those importers of the product at issue whose resale prices were taken into account for the construction of export prices and which are, therefore, concerned by the findings relating to the existence of dumping (judgments of 14 March 1990, Nashua Corporation and Others v Commission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraph 15, and of 14 March 1990, Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraph 18). The same is true as regards those importers associated with exporters in third countries on whose products anti-dumping duties have been imposed, in particular where the export price was calculated on the basis of their selling prices on the European Union market — as well as in the case where it was not the existence of dumping which was established on the basis of the resale prices of those importers but the calculation of the anti-dumping duty itself (judgment of 11 July 1990, Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraphs 19 and 20).
45      Thirdly, the Court of Justice has held that an original equipment manufacturer, without there being any need to define it as an importer or exporter, was individually concerned by the provisions of the regulation relating to the dumping practices of the producer from which it bought products because of the particular features of its business dealings with that producer. The Court took the view that it was in order to take into account those particular features that the Council had set a certain profit margin in the construction of the normal value which was then taken into account in the calculation of the dumping margin on the basis of which the anti-dumping duty was fixed, with the result that the original equipment manufacturer was concerned by the findings relating to the existence of the dumping complained of (judgments of 14 March 1990, Nashua Corporation and Others v Commission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraphs 17 to 20, and of 14 March 1990, Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraphs 20 to 23).
46      Fourthly, it must be recalled that the recognition in case-law of the right of certain categories of traders to bring an action for the annulment of an anti-dumping regulation cannot prevent other traders from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 16).
47      It is necessary to examine in the light of that case-law whether the contested regulation is of individual concern to Noble Argentina, Explora, Patagonia Bioenergia, Renova and T6 Industrial.
48      First, as regards Noble Argentina, it suffices to note that the applicant in Case T‑119/14 has not adduced any evidence capable of establishing that the company was identified in the acts of the institutions or concerned by the preliminary investigations. On the contrary, as that applicant itself notes, that company is a producer which had not yet begun production during the investigation period. Under those circumstances, it cannot be considered to be individually concerned by the contested regulation.
49      Secondly, as regards Explora and Patagonia Bioenergia, it must be noted that those companies do not belong to the categories of persons referred to in paragraphs 44 and 45 above.
50      Nor can Explora and Patagonia Bioenergia be considered to be producers or exporters within the meaning of the case-law referred to in paragraph 43 above.
51      It must be noted that Explora and Patagonia Bioenergia were not mentioned in the contested regulation or in the provisional regulation, since the institutions did not identify them as producers or exporters of biodiesel exported to the European Union.
52      Moreover, it must be noted that the applicant in Case T‑119/14 does not claim that Explora and Patagonia Bioenergia have exported biodiesel to the European Union.
53      Furthermore, it is necessary to reject the applicant’s argument in Case T‑119/14 that Explora and Patagonia Bioenergia should be considered to be producers of part of the biodiesel exported to the European Union by LCD Argentina and Molinos Río de la Plata. Contrary to the applicant’s claim, the mere fact that, on the basis of tolling agreements, Explora and Patagonia Bioenergia had been involved in the production of part of the biodiesel exported by LCD Argentina (in the case of Explora) and Molinos Río de la Plata (in the case of Patagonia Bioenergia) to the European Union is not sufficient to consider them to be producers of that biodiesel. According to the information provided by the Council, which was not contested by that applicant, Explora and Patagonia Bioenergia merely provided paid services to LDC Argentina and Molinos Río de la Plata, which retained ownership of the raw materials made available to them.
54      Furthermore, even if it is not ruled out that traders other than exporters and producers of the product concerned may also be individually concerned by certain provisions of an anti-dumping regulation in the same way as the person addressed by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons (paragraph 46 above), it must be noted that the applicant in Case T‑119/14 has not submitted any evidence establishing that those conditions were met in so far as concerns Explora and Patagonia Bioenergia.
55      First, contrary to the claim of the applicant in Case T‑119/14, the mere fact that the fees for the services provided by Explora and Patagonia Bioenergia are reflected in the records of LCD Argentina and Molinos Río de la Plata, companies which were part of the sample, does not suffice in itself to identify them in the same way as an addressee. That fact is solely capable of showing that they are concerned on account of being a supplier of services to LDC Argentina and Molinos Río de la Plata, just like any other trader providing them with the services or products that they use to produce biodiesel, and not by reason of certain attributes which are peculiar to them or circumstances in which they are differentiated from all other persons. Secondly, the applicant in Case T‑119/14 did not submit any evidence establishing that Explora and Patagonia Bioenergia were significantly affected by the anti-dumping duties imposed on LDC Argentina and Molinos Río de la Plata.
56      Consequently, Explora and Patagonia Bioenergia are not individually concerned by the contested regulation.
57      Thirdly, it must be examined whether Carbio Renova and T6 Industrial are individually concerned by the provisions of the contested regulation.
58      In that context, it must be noted that, in the second and third indents of recital 28(b) of the provisional regulation, the Commission identified Carbio Renova and T6 Industrial as ‘exporting producers in Argentina’.
59      Moreover, as the Council indicated during the proceedings before the Court, Carbio Renova and T6 Industrial were investigated. That is confirmed, first, by the second indent of recital 28(b) of the provisional regulation, which states that verification visits were carried out at the premises not only of Molinos Río de la Plata, Oleaginosa Moreno Hermanos and Vicentin but also of their joint venture Renova, and, secondly, by the third indent of recital 28(b), which states that verification visits were carried out at the premises not only of Aceitera General Deheza and Bunge Argentina but also of their joint venture T6 Industrial.
60      Moreover, it is apparent from recital 65 of the contested regulation that identical individual dumping margins were calculated for, respectively, first, Molinos Río de la Plata, Oleaginosa Moreno Hermanos and Vicentin, which were grouped under their joint venture Renova, and, secondly, for Aceitera General Deheza and Bunge Argentina, which were grouped under their joint venture T6 Industrial.
61      In the light of those circumstances, Renova and T6 Industrial must be considered to be individually concerned by the contested regulation in accordance with the case-law referred to in paragraph 40 above.
62      In the second place, it must be noted that Renova and T6 Industrial are directly affected by the contested regulation. In that regard, it suffices to note that the customs authorities of the Member States are required, without having any margin of discretion, to levy the duties imposed by an anti-dumping regulation (judgment of 16 January 2014, BP Products North America v Council, T‑385/11, EU:T:2014:7, paragraph 72).
63      Since two of is members have brought no action against the contested regulation but were in a position to bring admissible actions by virtue of the fourth paragraph of Article 263 TFEU against that regulation, it must be concluded that the applicant in Case T‑119/14 has locus standi in accordance with the case-law referred to in paragraphs 35 and 36 above.
64      Accordingly, the action for annulment in Case T‑119/14 is admissible in so far as the applicant in that case represents the interests of Renova and T6 Industrial and must be rejected as to the remainder.
Substance
65      In support of the action, the applicants put forward three pleas in law.
66      The first and second pleas in law seek to call into question the Council’s disregarding of the costs of the main raw materials included in the records of the Argentinian exporting producers examined, on account of the distortion of the prices of those raw materials caused by the DET system, and their replacement with the reference price. In its first plea in law, the applicants claim that such action does not comply with the first and second subparagraphs of Article 2(5) of the basic regulation. In the second plea in law, the applicants claim that that action does not comply with the Agreement on Implementation of Article VI of the GATT (OJ 1994 L 336, p. 103).
67      The third plea in law alleges that, in finding that there was a causal link between the imports of biodiesel originating in Argentina which are the subject of the investigation and the injury caused to the European Union industry, the Council infringed Article 3(7) of the basic regulation.
68      As regards the first plea in law, the applicants claim that the Council infringed Article 2(5) of the basic regulation by failing to take into account the costs associated with the main raw materials actually incurred by the Argentinian exporting producers in question on the ground that the prices for those materials indicated in the records of the Argentinian exporting producers examined were artificially low. The applicants maintain that, in Argentina, the prices of the main raw materials are not regulated. They are freely set by the producers and are not lower than those of the raw materials sold for export. The approach adopted by the Council and the Commission (‘the institutions’) to determine the cost of those materials amounts to adding export tax to the Argentinian prices indicated in those records. In any event, even assuming that the domestic prices of those materials are distorted by the DET system, the institutions have not shown that those records did not reasonably reflect their costs and could therefore be disregarded under Article 2(5) of the basic regulation.
69      The Council, supported by the Commission and the EBB, contends, in the present case, that the application of Article 2(5) of the basic regulation is based on the fact that sales of the main raw materials on the Argentinian market were not made in the ordinary course of trade. The Council maintains that the DET system led to distortion of the production costs of Argentinian biodiesel producers, as shown by a considerable difference between the domestic price and the international price, which makes it necessary to adjust those costs. The records of the Argentinian exporting producers examined would not serve as a basis for calculating the normal value if the costs associated with the production of a product under investigation were not reasonably reflected in those records. The fact that the prices are regulated is only one of the possible reasons why, for the purposes of the investigation, the costs are not reasonably reflected in those records. The data used by the institutions, namely the reference prices of soya beans during the investigation period, reflecting the level of international prices, is a reliable source.
70      In the present case, it must be stressed that, in the contested regulation, in the context of determining the normal value of the like product, the institutions did not calculate the costs of production associated with the main raw materials by reference to their prices as reflected in the records of the companies examined, but, as is apparent, inter alia, from recital 29 et seq. of that regulation, disregarded those prices and replaced them with the reference price on the basis of Article 2(5) of the basic regulation.
71      In that regard, it must be recalled that, by virtue of Article 2(3) of the basic regulation, when there are no or insufficient sales of the like product in the ordinary course of trade, or where, because of the particular market situation, such sales do not permit a proper comparison, the normal value of that product is to be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative. That provision provides that a particular market situation for the product concerned within the meaning of the preceding sentence may be deemed to exist, inter alia, when prices are artificially low, when there is significant barter trade, or when there are non-commercial processing arrangements.
72      Furthermore, it follows from the first subparagraph of Article 2(5) of the basic regulation that, when the normal value of the like product is calculated in accordance with Article 2(3) of that regulation, the costs of production are normally to be calculated on the basis of the records kept by the party under investigation, provided that those records are in accordance with the generally accepted accounting principles of the country concerned and reasonably reflect the costs associated with the production and sale of the product in question.
73      Under the second subparagraph of Article 2(5) of the basic regulation, if costs associated with the production and sale of the product under investigation are not reasonably reflected in the records of the party concerned, they are to be adjusted or established on the basis of the costs of other producers or exporters in the same country or, where such information is not available or cannot be used, on any other reasonable basis, including information from other representative markets.
74      The objective of the first and second subparagraphs of Article 2(5) of the basic regulation is to ensure that the costs associated with the production and sale of the like product used in calculating the normal value of that product reflect the costs that a producer would have incurred on the domestic market of the exporting country.
75      Moreover, it follows from the wording of the first subparagraph of Article 2(5) of the basic regulation that the records kept by the party under investigation are the prime source of information in order to establish the costs of production of the like product and that the use of the data included in those records constitutes the rule and the adaptation or replacement of that data on another reasonable basis, the exception.
76      Since a derogation from or exception to a general rule must be interpreted narrowly (see judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, EU:C:2013:572, paragraph 17 and the case-law cited), it must be considered, as the applicants argue, that the exception arising from Article 2(5) of the basic regulation must be interpreted narrowly.
77      In the present case, without calling into question the reasons leading the institutions to calculate the normal value of the like product on the basis of Article 2(3) of the basic regulation, the applicants contest the application of Article 2(5) of that regulation on the basis of which, as regards that calculation, the institutions did not rely on the prices of the main raw materials included in the records of the companies examined.
78      In the contested regulation, the institutions did not state that the records of the Argentinian exporting producers examined did not comply with the accounting principles generally accepted in Argentina. By contrast, they maintained that those records did not reasonably reflect the costs associated with the main raw materials.
79      As is clear from recitals 29 to 42 of the contested regulation, the institutions took the view that, inasmuch as it included differential export taxes on the main raw materials and biodiesel, the DET system had caused distortion of the prices of those raw materials in so far as that system depressed their prices on the Argentinian market to an artificially low level.
80      On the basis of the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65), the institutions considered in recital 31 of the contested regulation that when the prices of the main raw materials were regulated in such a way that they were artificially low on the domestic market, it could be presumed that the cost of producing the product concerned was affected by a distortion. Under such circumstances, they considered that the data included in the records of the Argentinian exporting producers examined may not be considered reasonable and, consequently, should be adjusted.
81      In that regard, it is necessary to recall that, in paragraph 44 of the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65), the Court held that, given that natural gas was necessarily supplied at a very low price to the exporting producers concerned by virtue of Russian law, the production price of the product concerned in the case giving rise to that judgment was affected by a distortion of the domestic Russian market regarding the price of gas, as that price was not the result of market forces. The Court therefore considered that the institutions were fully entitled to conclude that one of the items in the records of the applicants in that case could not be regarded as reasonable and that, consequently, that item had to be adjusted by having recourse to other sources from markets which the institutions regarded as more representative.
82      However, as the applicants correctly claim, unlike the situation at issue in the case which gave rise to the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65), it is not apparent from the file that the prices of the main raw materials were directly regulated in Argentina. The DET system referred to by the institutions merely provided for export taxes with different rates on the main raw materials and biodiesel.
83      The fact that the DET system does not directly regulate the prices of the main raw materials in Argentina nevertheless does not, in itself, rule out the application of the exception referred to in Article 2(5) of the basic regulation.
84      It must be recalled, as the institutions point out, that the provision corresponding to the second subparagraph of Article 2(5) of the basic regulation was inserted into the preceding basic regulation, namely Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), by Council Regulation (EC) No 1972/2002 of 5 November 2002 amending Regulation No 384/96 (OJ 2002 L 305, p. 1).
85      It is apparent from recital 4 of Regulation No 1972/2002 that the insertion of the provision corresponding to the second subparagraph of Article 2(5) of the basic regulation sought to give some guidance as to what should be done if the records did not reasonably reflect the costs associated with the production and sale of the product under consideration, in particular in situations where, because of a particular market situation, sales of the like product did not permit a proper comparison. In such a case, that recital states that the relevant data should be obtained from sources which are unaffected by ‘such distortions’.
86      Recital 4 of Regulation No 1972/2002 therefore envisages the possibility of relying on Article 2(5) of the basic regulation, in particular in a situation where the sales of the like product do not permit a proper comparison on account of distortion. It also follows from it that such a situation may arise, in particular, when a particular market situation exists, such as that referred to in the second subparagraph of Article 2(3) of the basic regulation, concerning artificially low prices of the product concerned, but that type of situation is not limited to cases in which there is direct regulation of prices of the like product or the main raw materials of that product by the exporting State.
87      By contrast, it cannot reasonably be considered that any measure of the public authorities of the exporting State which could have an influence on the prices of the raw materials and, as a result, on the price of the product in question, may be the source of a distortion that permits, in the context of the calculation of the normal value of the like product, the prices included in the records of the parties under investigation to be disregarded. As the applicants rightly state, if any measure taken by the public authorities of the exporting country which is capable of influencing, even slightly, the prices of the main raw materials could be taken into account, the principle enshrined in the first subparagraph of Article 2(5) of the basic regulation, to the effect that those records are the prime source of information in order to establish the costs of production of the like product, would risk being deprived of any useful effect.
88      Accordingly, a measure of the public authorities of the exporting country may lead the institutions to disregard, in the context of calculating the normal value of the like product, the prices of the raw materials included in the records of the parties under investigation only when it causes appreciable distortion of the prices of those raw materials. Another interpretation of the exception provided for in Article 2(5) of the basic regulation, allowing, in a situation such as that in the present case, that data to be replaced by costs established on another reasonable basis, would risk disproportionately impairing the principle that those records are the prime source of information in order to establish the costs of production of that product.
89      Furthermore, as regards the burden of establishing the existence of factors justifying the application of the first subparagraph of Article 2(5) of the basic regulation, it must be considered that, where the institutions consider that they must disregard the costs of production contained in the records of the party under investigation and replace them with another price deemed reasonable, the institutions must rely on direct evidence, or at least on circumstantial evidence pointing to the existence of the factor for which the adjustment was made (see, by analogy, judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraph 180 and the case-law cited).
90      Consequently, given the fact that the disregard, in the context of calculating the normal value of the like product, of the production costs of that product included in the records of the parties under investigation falls within the scope of an exception (see paragraph 76 above), where the distortion relied upon by the institutions is not an immediate consequence of the State measure from which it originates, as in the case giving rise to the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65), but of the effects that that measure is deemed to produce on the market, those institutions must ensure that they explain the operation of the market in question and demonstrate the specific effects of that measure on it, without relying in that regard on mere conjecture.
91      It is necessary to examine, in the light of those considerations, whether the institutions have established to the requisite legal standard that the conditions were met for disregarding, in the context of calculating the normal value of the like product, the prices of the main raw materials contained in the records of the Argentinian exporting producers examined.
92      First, the measure of the Argentinian public authorities identified as the source of the distortion of the prices of the main raw materials, as indicated inter alia in recital 29 of the contested regulation, is the DET system, in that it includes differential levels of tax imposed on the main raw materials and biodiesel. According to recital 35 of that regulation, during the investigation period, biodiesel exports were taxed at a nominal rate of 20% with an effective rate of 14.58%, while, during the same period, the taxation rates for exports of soya beans and exports of soybean oil were 35 and 32% respectively.
93      Secondly, as regards the effects of the DET system, the Council maintained, inter alia, in recital 30 of the contested regulation, that a further investigation had shown that that system depressed the domestic prices of the main raw materials on the Argentinian market to an artificially low level.
94      Although, in that context, the Council indicated, in recital 68 of the contested regulation, as regards the effects of the DET system applied in Indonesia, that that system limited the possibilities of exporting raw materials, since larger quantities of those materials were available on the domestic market and depressed their prices on that market, it must be noted that that regulation did not establish the extent to which that system, in that it included export taxes at differential rates on the main raw materials and biodiesel, had led to appreciable distortion of the prices of those raw materials on the Argentinian market.
95      In recital 37 of the contested regulation, the Council noted that the domestic prices and international prices of the main raw materials followed the same trends and that the difference between those prices corresponded to the export taxes imposed on them. In recital 38 of that regulation, it stated that the domestic prices of the main raw materials used by biodiesel producers in Argentina were artificially lower than the international prices owing to the distortion created by the DET system. However, by merely stating that the difference between the domestic prices and the international prices of the main raw materials corresponded essentially to the export taxes on the latter, the Council did not establish the effects that the difference between the rate of the taxes on those raw materials and the rate of tax on biodiesel could have had in itself on the prices of those raw materials on the Argentinian market. The finding in recital 37 of that regulation at most allows conclusions to be drawn as regards certain effects that imposing an export tax could have on the prices of the main raw materials, but does not allow conclusions to be drawn on the effects that the difference between the rate of the taxes on those raw materials and the rate of the tax on biodiesel could have had on the prices of those raw materials on that market.
96      Nor does the information provided by the Council in recitals 39 and 42 of the contested regulation, to the effect that the prices of the main raw materials included in the records of the relevant companies were replaced by the prices at which those companies would have purchased them on the domestic market in the absence of distortion, namely the reference price, allow conclusions to be drawn as to the effects that the difference between the rate of export taxes on raw materials and the rate of export tax on biodiesel could have on the price of those raw materials on that market. In so far as those recitals must be read as a finding of the Council that, in the absence of such a difference in rates, the price of the main raw materials on that market would have been identical to the reference price, it suffices to note that that has not been established either in the contested regulation or in the proceedings before the Court.
97      As regards the economic studies on which the institutions relied during the proceedings before the Court, it should be noted that it is true that it may be inferred that export taxes lead to an increase in the export price of the product affected by the tax compared with its price on the domestic market, a reduced export volume of that product and downward pressure on the prices of that product on the domestic market. It may also be inferred that a system of export taxes which taxes the main raw materials at a higher level than products on a downstream market protects and favours downstream domestic industries by providing them with raw materials in sufficient quantities at advantageous prices.
98      However, it must be noted that those studies merely analyse the effects of export taxes on the prices of the main raw materials and not the effects of the differential rates used for export taxes on the main raw materials and biodiesel.
99      The institutions therefore merely explained the relationship between the international prices and the domestic prices of the main raw materials and gave indications as regards the impact of the export tax on the availability of those raw materials on the domestic market and on their prices, without, however, establishing specifically the effects that the DET system as such could have had on the domestic prices of the main raw materials and the extent to which those effects differ from those of a taxation system without differential rates for export taxes on the main raw materials and biodiesel.
100    Accordingly, it must be considered that the institutions failed to establish to the requisite legal standard that there was appreciable distortion of the prices of the main raw materials in Argentina as a result of the DET system, in that it included differential rates for export taxes on the main raw materials and biodiesel. Therefore, by taking the view that the prices of those raw materials were not reasonably reflected in the records of the Argentinian exporting producers examined and by disregarding them, the institutions infringed Article 2(5) of the basic regulation.
101    Contrary to what the institutions claim, that conclusion is not invalidated by the fact that they have broad discretion in the field of the common commercial policy, in particular, as regards complex economic assessments concerning commercial defence measures and that, in that regard, the Court must be restricted to checking that the rules governing procedure have been complied with, that the facts taken into account are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power (see, to that effect, judgment of 18 September 2002, Since Hardware (Guangzhou) v Council, T‑156/11, EU:T:2012:431, paragraphs 134 to 136 and the case-law cited).
102    A review by the Court which merely determines whether the elements on which the European Union institutions base their findings are capable of substantiating the conclusions which they draw from them does not encroach on their broad discretion in the field of commercial policy (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 68).
103    In the present case, the Court has simply examined whether the institutions demonstrated that the conditions were met for disregarding, in the context of calculating the normal value of the like product, the costs associated with the production and sale of that product, as reflected in the records of the Argentinian exporting producers examined, in accordance with the rule laid down in Article 2(5) of the basic regulation.
104    It follows that the first plea in law must be upheld.
105    It is also necessary to examine the extent to which the error found justifies the annulment of the contested regulation.
106    In that regard, in the first place, it must be recalled that the applicants in Cases T‑112/14 to T‑116/14 seek annulment of the contested regulation only in so far as it concerns them. Moreover, the application for annulment of that regulation is admissible in Case T‑119/14 only in so far as the applicant represents the interests of Renova and T6 Industrial, and accordingly in so far as it relates to the provisions which concern the applicants in Cases T‑112/14 to T‑116/14 (see paragraphs 58 to 65 above).
107    In the second place, contrary to the Council’s contention, in the circumstances of the present case, it is not possible partially to annul Article 1 of the contested regulation solely with regard to the error found concerning the method of calculation of the anti-dumping duty rate.
108    According to case-law, partial annulment of a European Union act is possible only if the elements whose annulment is sought may be severed from the remainder of the act. That requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (judgment of 10 December 2002, Commission v Council, C‑29/99, EU:C:2002:734, paragraphs 45 and 46).
109    As explained in relation to the examination of the first plea in law, the institutions’ calculation of the normal value of the like product is based on incorrect considerations. Since the normal value is an essential condition for determining the applicable rate of anti-dumping duty, Article 1 of the contested regulation cannot be maintained, in so far as it imposes individual anti-dumping duties on the applicants in Cases T‑112/14 to T‑116/14.
110    Having regard to the interrelationship between the definitive anti-dumping duty and the provisional anti-dumping duty provided for in Article 10(2) and (3) of the basic regulation, Article 2 of the contested regulation must also be annulled with respect to the applicants in Cases T‑112/14 to T‑116/14 in so far as it provides that the amounts secured by way of the provisional anti-dumping duties are to be definitively collected.
111    The contested regulation must therefore be annulled in so far as it concerns the applicants in Cases T‑112/14 to T‑116/14, without there being any need to examine the second and third pleas in law.
Costs
112    Under Article 134(1) and (3) 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. Where each party succeeds on some and fails on other heads, the parties shall bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
113    Since the Council has been unsuccessful in Cases T‑112/14 to T‑116/14, it must be ordered to bear its own costs and to pay those of the applicants in those cases in accordance with the form of order sought by the applicants.
114    In Case T‑119/14, as the applicant and the Council have each been partially unsuccessful, they shall each bear their own costs.
115    The Commission and the EBB shall bear their own costs, in accordance with the provisions of Article 138(1) and (3) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Joins Cases T‑112/14, T‑113/14, T‑114/14, T‑115/14, T‑116/14 and T‑119/14 for the purposes of the decision closing the proceedings;
2.      Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos SAFICI y A, Vicentin SAIC, Aceitera General Deheza SA and Bunge Argentina SA;
3.      Dismisses the action in Case T‑119/14 as to the remainder;
4.      Orders the Council of the European Union to bear its own costs in Cases T‑112/14 to T‑116/14 and also to pay the costs incurred by Molinos Río de la Plata in Case T‑112/14, by Oleaginosa Moreno Hermanos in Case T‑113/14, by Vincentin in Case T‑114/14, by Aceitera General Deheza in Case T‑115/14 and by Bunge Argentina in Case T‑116/14;
5.      Orders Cámara Argentina de Biocombustibles (Carbio) and the Council to bear their own costs in Case T‑119/14;
6.      Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.
Berardis
Czúcz
Popescu
Delivered in open court in Luxembourg on 15 September 2016.
[Signatures]
* Language of the case: English.